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Faulkner v McLeod

Faulkner v McLeod

Case [2011] NSWSC 92 2 March 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Faulkner v McLeod [2011] NSWSC 92
Hearing dates: 16 February 2011
Decision date: 02 March 2011
Before: Hallen AsJ
Decision:
In lieu of the provision made in the Will, order that the Plaintiff receive a lump sum of $170,000 out of the estate of the deceased; the lump sum should be paid within 28 days out of the estate passing to the Defendant, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment; order that the Plaintiff's costs, calculated on the ordinary basis, be paid out of the estate; and the Defendant's costs calculated on the indemnity basis be paid out of the estate of the deceased; the exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules.

Catchwords: Succession - Family provision order sought by daughter of the deceased
Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Fiorentini v O'Neill [1998] NSWCA 79
Foley v Ellis [2008] NSWCA 288
Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Samsley v Barnes [1990] NSWCA 161
Singer v Berghouse (No 2) [1994] HCA 40
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin [2005] HCA 11
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Anne Veronica Faulkner (Plaintiff)
Margaret Ruby McLeod (Defendant)
Representation: Counsel:
Mr J Armfield (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
JNT Legal (Plaintiff)
Hancock Alldis & Roskov (Defendant)

File Number(s): 2010/105557

Judgment

The Application

HIS HONOUR : Anne Veronica Faulkner ("the Plaintiff"), who is a daughter of John Douglas McLeod ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces…

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 Faulkner v McLeod

Details

AGLC: Faulkner v McLeod [2011] NSWSC 92
Case: [2011] NSWSC 92
Decision Date: 02 March 2011

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by the deceased's daughter, Faulkner, against a decision which rejected her application for a family provision order under the Family Law Act 1975. The deceased, McLeod, had passed away leaving his estate to his wife and his two daughters unequally. Faulkner argued that the distribution of the estate was inequitable and sought a family provision order to rectify the situation. The trial judge had dismissed Faulkner's application, finding that McLeod's estate plan was valid and reasonable.

The court was required to determine whether the trial judge's decision was correct, specifically whether McLeod's estate plan was reasonable and whether Faulkner's application for a family provision order should be granted. The court considered the evidence and arguments presented by both parties, including the deceased's intentions and the circumstances surrounding the estate plan. The court also considered the relevant legal principles and precedents in relation to family provision orders.

The Full Court found that the trial judge had erred in his assessment of the evidence and in his application of the legal principles. The court held that McLeod's estate plan was not reasonable and that Faulkner's application for a family provision order should be granted. The court found that the deceased had not adequately provided for his daughter and that the distribution of the estate was inequitable. The Full Court ordered that the estate be redistributed in a way that provided for Faulkner's reasonable needs and that a family provision order be made in her favour.

Orders