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Farr v Hardy

Farr v Hardy

Case [2008] NSWSC 996 25 September 2008

Family Provision

Restraint of Marriage

Gift Over

Adequate Provision

Succession Law

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CITATION: Farr v Hardy [2008] NSWSC 996

HEARING DATE(S): 06/03/08, 07/03/08 and 12/03/08

JUDGMENT DATE :
25 September 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Counsel for the defendants to bring in short minutes of order in accordance with the reasons.

CATCHWORDS: SUCCESSION – family provision and maintenance – whether adequate provision made for widow – widow provided with a right of residence and the right to income from one-third of the estate until she marries or enters into a de facto relationship – widow has scant personal resources – widow contributed substantially as a homemaker – normally appropriate for widows to take house in fee simple – clearly inadequate provision - SUCCESSION – wills – construction – restraint of marriage – whether restraint was effective – gift of personalty – gift over – restraint effective

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Trustee Act 1925 (NSW)
Conveyancing Act 1919 (NSW)
Succession Act 2006 (NSW)
Statute Law (Miscellaneous Provisions) Act (No. 2) 2007 (NSW)
Conveyancing (Amendment) Act 1930 (NSW)

CATEGORY: Principal judgment

CASES CITED: Luciano v Rosenblum (1985) 2 NSWLR 65
Re Keenan (1913) 30 WN (NSW) 214
Leong v Chye [1955] AC 648
Jarvis v Duke (1681) 1 Vern 19; 23 ER 274
Scott v Tyler (1788) Dick 712; 21 ER 448; 2 Bro CC 431; 29 ER 241
Lloyds v Branton (1817) 3 Mer 108; 36 ER 42
In re Hanlon [1933] Ch 254
Potter v Richards (1855) 24 LJ Ch 488
Heath v Lewis (1853) 3 De G M & G 954; 43 ER 374
Re King’s Trusts (1892) 29 LR Ir 401
Evans v Rosser (1864) 2 H&M 190; 71 ER 435
Perpetual Trustee Co Ltd v Fenton (1940) 40 SR (NSW) 382
Fenton v Perpetual Trustee Co Ltd (1940) 64 CLR 52
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Re Buckland, Deceased [1966] VR 404
O’Loughlin v O’Loughlin [2003] NSWCA 99
Golosky v Golosky (NSW Court of Appeal, 5 October 1993, unreported)
Bladwell v Davis [2004] NSWCA 170
Szlazko v Travini [2004] NSWSC 610
Moore v Moore (NSW Court of Appeal, 16 May 1984, unreported, BC8400340)
Court v Hunt (NSW Supreme Court, 14 September 1987, BC8701155)
White v Barron (1980) 144 CLR 431
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Walker v Walker (Supreme Court of New South Wales, Young J, 17 May 1996, unreported, BC9602381)
Kay v Archbold [2008] NSWSC 254
Australian Securities and Investments Commission v Carey (No. 6) (2006) 153 FCR 509
Public Trustee v Smith [2008] NSWSC 397
Re Whitehouse [1982] Qd R 196
Miller v Cameron (1936) 54 CLR 572

TEXTS CITED: Peter Butt, Land Law, 5th ed (2006) Sydney, Lawbook Co
Rowland, Hutley’s Australian Wills Precedents, 6th ed (2004) LexisNexis Butterworths

PARTIES: Maria Lourdes Farr
v
Gregory Hardy & 2 Ors

FILE NUMBER(S): SC 5843/06

COUNSEL: Plaintiff: P H Blackburn-Hart SC, B J Skinner & D V Robinson
Defendants:…

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 Farr v Hardy

Details

AGLC: Farr v Hardy [2008] NSWSC 996
Case: [2008] NSWSC 996
Decision Date: 25 September 2008

CaseChat Overview and Summary

In Farr v Hardy, the widow sought to contest the validity of a clause in the will of her deceased husband, arguing that the provisions made for her were inadequate under the Family Provision Act 1969. The widow was provided with a right of residence in the matrimonial home and the right to income from one-third of the estate until she remarries or enters into a de facto relationship. The widow had limited personal resources and had substantially contributed to the marriage as a homemaker. The court was tasked with determining whether the provisions in the will were adequate and whether a restraint of marriage contained within the will was effective.

The primary legal issue was whether the provisions made for the widow were adequate under the Family Provision Act. The court also had to decide whether a restraint of marriage was effective. The restraint stipulated that if the widow remarried, her right to income from the estate would cease. The court examined whether this restraint was enforceable and whether it impacted the adequacy of the provisions made for the widow. Additionally, the court considered the construction of the will, specifically whether the restraint on the widow's remarriage was effective and how it applied to the gift of personalty and the gift over.

The court held that the provisions made for the widow were clearly inadequate. The widow had scant personal resources and had contributed substantially to the marriage as a homemaker. It was normally appropriate for widows in such circumstances to take the house in fee simple. The restraint of marriage was found to be effective, and the widow's right to income from the estate would cease if she remarried or entered into a de facto relationship. The court found that the restraint did not affect the adequacy of the provisions, as the widow's right to income was contingent on her remaining unmarried. The court granted the widow an order for adequate maintenance and provision under the Family Provision Act.

The final orders included that the widow was to receive an annuity for life, and the restraint of marriage was upheld. The court determined that the provisions in the will were inadequate and that the widow was entitled to further provision.

Orders