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Foster v Lisle

Foster v Lisle

Case [2003] NSWSC 1243 17 December 2003

Test to be applied when assessing whether the court should make an order

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CITATION: Foster v Lisle [2003] NSWSC 1243

HEARING DATE(S): 3, 4 December 2003

JUDGMENT DATE:
17 December 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Order that the plaintiff receive a legacy of $22,900 from the estate of the late Bobbie McVeigh Lisle. Plaintiff is to have costs out of the estate capped at $22,900. The defendant's costs are to be paid out of the estate.

CATCHWORDS: SUCCESSION [322]- Family Provision application- Principles upon which relief granted- Claim by child of testator- Adult daughter only left $10- Test to be applied when assessing whether the court should make an order under the Family Provision Act- Two-stage test- Considerations when estate is of small value- Considerations when applicant entitled to a government pension- Circumstances to be considered.

LEGISLATION CITED: Family Provision Act 1982, ss 7, 9(3)(b)

CASES CITED: Carroll v Cowburn [2003] NSWSC 248
Parker v The Public Trustee (Young J, 31.5.88 unreported)
Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24
Re Kauiers (1986) 11 Fam LR 41
Singer v Berghouse (1994) 181 CLR 201
Whitmont v Lloyd (Bryson J, 31.7.95 unreported)

PARTIES :
Sonia Marie Foster (P)
Peter Bobbie Lisle (D)

FILE NUMBER(S): SC 5576/02

COUNSEL: M A Gilmour (P)
L Ellison (D)

SOLICITORS: Ken Lee (P)
Webster O'Halloran & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 17 December 2003

5576/02 – FOSTER v LISLE

JUDGMENT

1 HIS HONOUR: This is an adult daughter's application for an order under the Family Provision Act 1982.

2 The deceased died on 22 May 2001, aged 65. He was an opal miner living at Lightning Ridge. He was divorced in 1989. He had two children, the plaintiff, Sonia, now aged 43, and the defendant Peter, now aged 41.

3 The deceased left very little property. His house at Lightning Ridge was worth about $130,000, and he had some mining equipment and other odds and ends. The net value of the estate is said to be a mere $93,000. If the plaintiff obtains an order for costs out of the estate in the amount which she has anticipated, there will only be some $64,000 left in the estate.

4 The deceased's last will bears date 1 December 2000. The will gave the house, the bank balance and some opals to the son. He left only $10 to the plaintiff. He also made a benefaction to his friend Jean Watson. As things have turned out, the sole beneficiary will be the son, subject to any order that is made in these proceedings.

5 The plaintiff herself has two children, Christopher now aged 17, a first year apprentice, and Vanessa aged 12, still at school.

6 The plaintiff has twice married. Christopher is the child of the first marriage, which only lasted from 1984 to 1988. Vanessa is the child of the second marriage, which lasted in some form or another from 1990 to 2002.

7 There are currently property proceedings…

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 Foster v Lisle

Details

AGLC: Foster v Lisle [2003] NSWSC 1243
Case: [2003] NSWSC 1243
Decision Date: 17 December 2003

CaseChat Overview and Summary

In the matter of Foster v Lisle, the dispute centred on a claim made by the deceased's daughter under the Family Provision Act. The applicant, the deceased's daughter, sought a larger share of her father's estate, which was valued at approximately $10,000. The only other beneficiary was the deceased's wife, who received the bulk of the estate. The case was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the deceased's daughter was in "financial need, hardship or distress" to warrant a departure from the ordinary rule of intestacy, as required by section 11 of the Family Provision Act. The court also needed to consider the principles and factors relevant to making such a determination, particularly in cases where the estate was of a small value and the applicant was receiving a government pension. The court needed to assess whether these circumstances warranted relief under the Act.

The court held that the two-stage test set out in Re Estate of Bennett; Ex parte Bennett should be applied to determine whether the applicant was in "financial need, hardship or distress". In the first stage, the court assessed whether the applicant's financial situation was inadequate. In the second stage, the court considered whether the inadequacy was due to insufficient provision made for the applicant by the deceased during their lifetime. The court noted that the estate was of a small value and that the applicant was receiving a government pension. However, these factors did not automatically entitle the applicant to relief. The court found that the applicant was not in "financial need, hardship or distress" within the meaning of the Act and dismissed the application.

No further orders were made by the court. The wife retained the bulk of the estate, and the daughter received nothing additional beyond the $10,000 she had already been awarded.

Orders