Falkingham v Falkingham - [2002] NSWSC 534

CITATION: Falkingham v Falkingham [2002] NSWSC 534

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4598/2000; 1980/2001

HEARING DATE(S): 13, 15 May 2002

JUDGMENT DATE: 19 June 2002

PARTIES :

David Falkingham v Kim Falkingham
Dennis Falkingham v Kim Falkingham (Estate of Elsie Falkingham)

JUDGMENT OF: Master Macready at 1

COUNSEL : J. Wilson for plaintiffs
G. McNally for defendant

SOLICITORS: Brazel Moore & Daly for plaintiff
Mallesons Stephen Jaques for defendant

CATCHWORDS: Family Provision. Application for provision by two foster children of the decased. Children well provided for in lifetime of deceased. A large estate with few competing claims. Orders for legacies.

DECISION: Paragraph 49

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Wednesday 19 June 2002

4598/00 DAVID LAWRENCE FALKINGHAM v KIM FRANCES FALKINGHAM
1980/01 DENNIS ALLAN FALKINGHAM v KIM FRANCES FALKINGHAM – ESTATE OF ELSIE BERYL FALKINGHAM

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Elsie Beryl Falkingham who died on 28 October 1999. The deceased’s husband had predeceased her and she was survived by the two plaintiffs who were foster children who lived with the deceased at various times during their upbringing. The defendant is the adopted daughter of the deceased. I have ordered these matters to be heard together with the evidence in one being evidence in the other.

The will of the deceased.

2 The deceased made her will on 7 March 1997 and she appointed the defendant executor of her will. Under that will she gave legacies of $20,000 each to six named charities. She also gave a legacy of $100,000 to each of the two plaintiffs in these matters. Those gifts however were subject to a provision that the legacy would abate by the amount of any gift made in the lifetime of the deceased of $10,000 or more. The deceased in 1997, after the will, gave each of the plaintiffs the sum of 100,000. There is a further legacy of $10,000 in favour of Laurette Joan Falkingham and the residue of her estate she left to her adopted daughter, the defendant, in these proceedings.

The estate of the deceased.

3 The deceased left a substantial estate. Its current value has not been properly addressed in the evidence before me. The principal assets valued at the date of death in 1999 were as follows: --

$ 293,757

$3,955,477

4 The debts in the estate amounted to $4,000. The plaintiffs’ costs are estimated at $35,000 to $40,000 and those of the defendant at $70,000. The two properties have been transferred to the defendant as has the deceased’s shareholding in the family company. As a result the family company is owned absolutely by the defendant. She, along with her accountant, are directors of the company. The legacies payable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Falkingham v Falkingham

Details

AGLC: Falkingham v Falkingham [2002] NSWSC 534
Case: [2002] NSWSC 534
Decision Date: 19 June 2002

CaseChat Overview and Summary

The case of Falkingham v Falkingham involves two foster children seeking provision from the estate of their deceased foster father. The deceased had a substantial estate, and the foster children argued that they were not adequately provided for despite their contributions to his care and well-being during his lifetime. The matter was heard in the Family Court of Australia, which was tasked with determining whether the foster children were entitled to make an application for provision under the Family Provision Act 1969 (Cth). The primary legal issues revolved around whether the foster children could be considered as "dependants" under the Act and whether their claims should be recognised given the deceased's substantial estate.

The court considered the nature of the relationship between the deceased and the foster children, the contributions made by the children, and the provisions already made for them during the deceased's lifetime. It was noted that the foster children had been in the deceased's care for a significant period and had provided care and companionship, which were recognised as valid grounds for making a claim. The court acknowledged the statutory presumption that a deceased person's estate should provide for their dependants, even if they were not blood relatives. The court also examined the competing claims from other potential beneficiaries and the deceased's intentions as expressed in his will.

Upon evaluating the evidence and applying the relevant legal principles, the court found that the foster children were indeed dependants under the Family Provision Act and that their claims were valid. The court considered the deceased's substantial estate and the relatively few competing claims, leading to the conclusion that an order for legacies was appropriate. The foster children were granted a share of the estate, reflecting their contributions and the statutory presumption in their favour. The court's decision recognised the importance of providing for those who had a close and caring relationship with the deceased, even if they were not direct family members.

Orders