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Foye v Foye

Foye v Foye

Case [2008] NSWSC 1305 9 December 2008

Family Provision

Financial Circumstances

Maintenance

Contact with Deceased

Testamentary Benefit

Succession Law

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CITATION: Foye v Foye [2008] NSWSC 1305

HEARING DATE(S): 14, 15 and 16 July 2008

JUDGMENT DATE :
9 December 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that the summons be dismissed.
2. I order that the Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis.
3. I order that the Defendant be entitled to recoup from the estate of the late David Whyte Foye (“the Deceased”) the difference between the costs which she may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by adult son and adult daughter - will gives half of residue to first Plaintiff and nothing to second Plaintiff - financial and material circumstances of each Plaintiff - obligation upon an applicant for provision to disclose as fully and as frankly as possible all information concerning the applicant's financial and material circumstances - whether each Plaintiff has been left without adequate provision for that Plaintiff's proper maintenance - extent of contact between first Plaintiff and Deceased - absence of contact between second Plaintiff and Deceased - statement by Deceased setting forth reasons for excluding second Plaintiff from any testamentary benefit in his estate.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Edward Harold Foye (First Plaintiff)
Patricia Vazzoler (Second Plaintiff)
Beverly Anne Foye (Defendant)

FILE NUMBER(S): SC 2336 of 2006

COUNSEL: Ms M. Tibbey (Plaintiffs)
Mr D. Liebhold (Defendant)

SOLICITORS: Creswick McCarthy
Neil Lyon Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 9 December 2008

2336 of 2006 EDWARD HAROLD FOYE and PATRICIA VAZZOLER -v- BEVERLEY ANNE FOYE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 11 April 2006 Edward Harold Foye and Patricia Vazzoler claim an order that provision be made for their maintenance, education and advancement in life out of the estate of their late father, David Whyte Foye (to whom I shall refer as “the Deceased”).

3 The Deceased died on 18 October 2004, aged 84. He left a will dated 23 March 2004, probate whereof was on 15 March 2005 granted to Beverley Anne Foye, the executor named in such will (who is the Defendant to the present proceedings).

4 The inventory of property discloses the following assets and the respective values ascribed thereto:

Furniture (estimated value) $10,000

Moneys in building society $57,197

Subaru Forester Wagon (estimated value) $25,000

5 The Deceased, who was widower at the time of his death (his wife, Mrs Eileen Maude Foye, having died on 12 November 2003), was survived by his three children. Those children are Edward Harold,…

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 Foye v Foye

Details

AGLC: Foye v Foye [2008] NSWSC 1305
Case: [2008] NSWSC 1305
Decision Date: 9 December 2008

CaseChat Overview and Summary

In the matter of Foye v Foye, the applicants, the adult son and daughter of the deceased, sought to challenge the provisions of their father's will which allocated half of the residue to the first applicant and nothing to the second. The applicants contended that they were left without adequate provision for their proper maintenance, despite their father's estate being worth a substantial sum. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the interpretation of the Family Provision Act and the respective rights of the applicants to challenge the will. The court was required to determine whether the applicants had discharged the onus of proving that they had been left without adequate provision for their proper maintenance. Additionally, the court needed to consider the differing levels of contact between the applicants and the deceased, and the reasons given by the deceased for excluding the second applicant from any testamentary benefit.

The court found that the first applicant, who had a closer relationship with the deceased and had provided care, was adequately provided for under the will. The second applicant, who had little to no contact with the deceased, did not meet the onus of proving inadequate provision. The court was influenced by the deceased's statement outlining his reasons for excluding the second applicant, which was deemed a legitimate consideration in light of the lack of relationship. Consequently, the applications were dismissed.

The court ordered that the applicants pay the costs of the proceedings, reflecting the unsuccessful nature of their claims.

Orders