Fordham v Burrell - [2010] NSWSC 685

CITATION: Fordham v Burrell [2010] NSWSC 685

HEARING DATE(S): 23/06/10, 24/06/10

JUDGMENT DATE :
11 August 2010

JUDGMENT OF: Macready AsJ at 1

DECISION: I dismiss the summons with costs.

CATCHWORDS: Family Provision. Claim by a de facto partner of 7 years standing for all of a $700,000 estate. Held sufficient provision made in will which provided one third of estate should pass to plaintiff.

PARTIES: Shirley Ann Fordham v Clinton James Burrell and Rebecca Burrell

FILE NUMBER(S): SC 2009/288304

COUNSEL: Mr D Smallbone for plaintiff
Mr M Bradford for defendants

SOLICITORS: Birch Partners for plaintiff
Alex Ilkin & Co for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Wednesday 11 August 2010

2009/288304 - SHIRLEY ANN FORDHAM v CLINTON JAMES BURRELL & REBECCA BURRELL

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late James Craig Burrell who died on 3 June 2008 aged 69 years. The deceased was survived by his son, Clinton James Burrell, and his daughter, Rebecca Burrell, the defendants, who are the executors of his last will. The deceased was also survived by his de facto partner, Shirley Ann Fordham, the plaintiff in the proceedings. The deceased and his ex-wife had divorced in 1986.

The deceased’s last will

2 The deceased made his last will on 17 April 2008 (“2008 will”) under which he appointed his children, Clinton Burrell and Rebecca Burrell, the defendants, co-executors of his last will. After some minor bequests the deceased divided the residue of his estate equally between the plaintiff, Shirley Fordham and his two children.

3 In November 2006 the deceased had made an earlier will in which he gave 75 per cent of his estate to his children in equal shares and 25 per cent to the plaintiff.

The deceased’s estate

4 The main asset was the deceased’s former home at Lugarno which has been sold and the estate partly reduced to cash. The net proceeds remaining after allowing for costs and legal costs in respect of the estate and the sale of its properties amounts to $706,074.92.

5 There has been a partial distribution of $23,280 to the plaintiff and the defendants in the proceedings. At present the monies are held in an investment and amount to $637,650.19. There is some personalty worth $4,400 in respect of which the parties are in dispute. There are shares worth $12,532 held in the estate.

6 The defendants’ costs of $72,681.45 have been paid before arriving at the figure mentioned above. There are further defendants’ costs of $7,200. The plaintiff’s costs were originally estimated at $58,950 but that estimate has been revised to $78,226.50.

History

7 The deceased was born in 1938. The plaintiff was born in 1951. The deceased married Diana Rosalie Burrell in 1969 and they had two children, Rebecca born in 1971 and Clinton in 1973. The deceased and Diana divorced in 1986 and the deceased retained…

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 Fordham v Burrell

Details

AGLC: Fordham v Burrell [2010] NSWSC 685
Case: [2010] NSWSC 685
Decision Date: 11 August 2010

CaseChat Overview and Summary

In the case of Fordham v Burrell, the plaintiff, Fordham, sought to claim the entirety of the deceased's $700,000 estate under the Family Provision Act 1969 (NSW). Fordham, the de facto partner of the deceased, Burrell, for seven years, argued that the provision made for her in Burrell's will was inadequate. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether the provision made in Burrell's will, which allocated one-third of the estate to Fordham, was sufficient. The legal issues included whether Fordham was a 'person who is treated by section 10 as a member of the family of the deceased' and whether the provision was 'just and reasonable' in the circumstances of the case. The court also needed to consider the evidence of Fordham's and Burrell's relationship, their financial circumstances, and the deceased's intentions.

The court held that Fordham was indeed a member of the deceased's family for the purposes of the Family Provision Act. However, the court found that the provision made in the will was just and reasonable. The court considered the length and nature of the relationship, Fordham's contributions to Burrell's estate, and the deceased's intentions. The court found that the deceased had made a provision for Fordham, and that it was appropriate to respect his wishes. The court dismissed Fordham's claim.

The court ordered that the estate be distributed according to the terms of Burrell's will, with one-third of the estate passing to Fordham. The court emphasised the importance of the deceased's autonomy in making provisions for their family and the need to respect those wishes unless there was clear evidence that they were unjust or unreasonable.

Orders