Foley v Foley Foley v Foley - [2008] NSWSC 233

CITATION: Foley v Foley Foley v Foley [2008] NSWSC 233

HEARING DATE(S): 12/03/08

JUDGMENT DATE :
13 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 13 March 2008

DECISION: Paragraph 68

CATCHWORDS: Family Provision. Application by widow and former wife. Widow left $600,000 in will of deceased. Estate approximately $1m. Widow's claim dismissed as sufficient provision made in will. Former wife's claim refused as insufficient explanation for delay in making application.

PARTIES: Carmen Foley v Lyndon Foley (Estate of late Maurice Foley)
Betty Foley v Lyndon Foley (Estate of late Maurice Foley)

FILE NUMBER(S): SC 4104/2008; 4793/2007

COUNSEL: Ms N Obrart for Carmen Foley
Mr A Lakeman for Betty Foley
Mr J Turnbull for defendant

SOLICITORS: Paul Nass for Carmen Foley
Anderson & Sjoquist for BettyFoley
Yuill Lawyers for defendant

LOWER COURT JURISDICTION: Compensation Court

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 13 MARCH 2008

4104/06 CARMEN ESPERENZA FOLEY v LYNDON STUART FOLEY - ESTATE OF THE LATE MAURICE LINDSAY FOLEY

4793/07 BETTY FOLEY and ANOR v LYNDON STUART FOLEY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the late Maurice Lindsay Foley who died on 8 September 2004 aged 86 years. He was survived by his second and third wives who are the plaintiffs in the two proceedings which I have heard together, with the evidence in one being evidence in the other.

2 Another plaintiff, Julie Widman, is a step-daughter of the deceased but she no longer presses her claim.

3 The deceased was first married to Margaret Foley, with whom he had three daughters. There was no contact between the deceased and these after the second marriage. I have heard evidence of attempts to locate them and I am satisfied that it is impractical to give them notice under section 20 of the Act.

The last will of the deceased

4 This was made on 5 April 2004. By it he gave his third wife, Carmen, a legacy of $600,000 and gave the residue to his son, the defendant. The defendant is the son of his second marriage.

Estate of the deceased

5 The estate consists now of:

6 There has been a transfer to that defendant of cash and shares worth $56,000. There has been transferred to the defendant a joint bank account of $19,040 and the car worth, at the date of death, $8,000.

7 Costs have been incurred in the matter. The plaintiff Carmen's costs amount to $35,000; the plaintiff Betty's costs amount to 33,003; $27, and the defendants $32,000.

Family History

8 The deceased was born on April 1918 and his second wife Betty was born in July 1925. His third wife, Carmen, was born in May 1945. Betty herself had been married before to John Reddan in 1949 and…

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.

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Details

Case: [2008] NSWSC 233
Decision Date: 13 March 2008

CaseChat Overview and Summary

The case of Foley v Foley involved a dispute regarding family provision claims brought by the deceased's widow and former wife against his estate. The widow, who was left $600,000 in the will of the deceased, sought additional provision from the estate which was valued at approximately $1 million. The former wife also sought additional provision from the estate, but her claim was ultimately dismissed due to insufficient explanation for the delay in making her application. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the deceased had made sufficient provision for the maintenance of the widow and former wife under the Family Provision Act 1969 (NSW). The court had to determine whether the widow had been adequately provided for and whether the former wife's application, which was made significantly later than the widow's, could be justified under the circumstances. The court also needed to assess whether there were any special circumstances that warranted additional provision to either party.

In delivering the judgment, the court held that the deceased had made sufficient provision for the widow in his will, thereby dismissing her claim. Regarding the former wife's claim, the court found that she had not provided a satisfactory explanation for the delay in making her application, and as such, her claim was also dismissed. The court emphasised the importance of timely applications and the need for a clear explanation of any delay. The court concluded that there were no special circumstances that would warrant additional provision to either party.

The final orders of the court were that the widow's claim for additional provision was dismissed, and the former wife's claim was also dismissed due to the lack of an adequate explanation for the delay in making her application.

Orders