Fisher v Thomson - [2006] NSWSC 527

CITATION: Fisher v Thomson [2006] NSWSC 527

HEARING DATE(S): 1 and 2 May 2006

JUDGMENT DATE :
6 June 2006

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Plaintiff to receive legacy of $775,000.

CATCHWORDS: FAMILY PROVISION ACT - claim by adult daughter - large estate - whole of estate passed to de facto wife - daughter has significant medical problems and at present is unable to work full time

LEGISLATION CITED: Family Provision Act 1982, s7

CASES CITED: Bosch v Perpetual Trustee Company Limited [1938] AC 463
Mayfield v Lloyd-Williams [2004] NSWSC 419
Re Buckland deceased [1966] VR 404
Singer v Berghouse (1994) 181 CLR 201

PARTIES: Nicole Leanne Fisher (Plaintiff)
Lucy Patricia Thompson (Defendant)

FILE NUMBER(S): SC 4274 of 2004

COUNSEL: Mr M Heaton QC with him Mr A Paterson (Plaintiff)
Mr P Hallen SC with him Mr L Gyles (Defendant)

SOLICITORS: Maddens Lawyers (Plaintiff)
Wood Fussell (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

TUESDAY 6 JUNE 2006

4274/04 NICOLE LEANNE FISHER V LUCY PATRICIA THOMSON

JUDGMENT

1 This is an action brought under s7 of the Family Provision Act 1982 in which the plaintiff, Nicole Leanne Fisher, seeks provision for her maintenance and advancement from the estate of her late father Thomas Charles Fisher (the deceased). The defendant, Lucy Patricia Thomson, was the defacto wife of the deceased from July 1988 until his death on 17 May 2003.

2 The deceased left a will dated 7 January 2003. Probate of that will was granted to the defendant on 22 September 2003. Under that will the deceased gave all his estate to the defendant. The estate is now valued at $7,586,743. In view of the large amount it is not necessary to set out the assets and liabilities at death. The deceased started, built up and ran a very successful business at Fyshwick selling power tools and workshop equipment.

3 The plaintiff was born on 17 July 1977 the only child of the deceased’s marriage to Julie Anne Fisher. The plaintiff’s parents were married on 21 January 1972 and separated as a result of the deceased’s drunken and violent behaviour in 1979 when the plaintiff’s mother took the plaintiff and went to live with her parents at Red Hill. The plaintiff’s grandfather died when she was two or three years of age.

4 The plaintiff continued to live in the house with her mother and grandmother during her attendance at Red Hill Primary School and later Telopea Park High School. Neither the plaintiff’s mother nor grandmother was engaged in permanent paid employment during this time and were reliant on government benefits.

5 The evidence of the plaintiff shows that her home environment during these years was less than supportive. Her mother suffered panic attacks and extreme anxiety attacks and was on medication almost constantly. She would drink to excess and overuse prescription medication so that as a young girl the plaintiff had constant worries about her mother’s…

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 Fisher v Thomson

Details

AGLC: Fisher v Thomson [2006] NSWSC 527
Case: [2006] NSWSC 527
Decision Date: 6 June 2006

CaseChat Overview and Summary

In the matter of Fisher v Thomson, the plaintiff, Fisher, an adult daughter, brought proceedings against the estate of her deceased father, Thomson. Fisher sought a statutory family provision order under the Family Provision Act, challenging the distribution of her father's estate. The estate in question was substantial, and it had been bequeathed entirely to Thomson's de facto wife, leaving Fisher, who has significant medical issues and is currently unable to work full time, with no inheritance. The dispute centred on whether the distribution of the estate was just and equitable, given Fisher's medical condition and her inability to support herself adequately.

The central legal issues before the court were whether Fisher had a claim under the Family Provision Act and, if so, whether the court should grant her a family provision order. The court had to consider the relevant statutory criteria, including whether Fisher had been provided for under the deceased's will, whether she was in need of maintenance from the estate, and whether it was just and equitable to make an order in her favour. The court also needed to weigh the interests of the de facto wife, who had received the entirety of the estate, against those of Fisher.

The court found that Fisher had a valid claim under the Family Provision Act. It held that Fisher, who had been omitted from her father's will, was in need of maintenance from the estate due to her significant medical problems and her inability to work full time. The court emphasised the importance of considering the welfare and needs of family members in determining what is "just and equitable." It concluded that it was just and equitable to make a family provision order in Fisher's favour. The court ordered that a portion of the estate be set aside for Fisher to provide for her maintenance needs.

Orders