15-16 November 2023, last submissions 20 November 2023
Date of orders:
1 March 2024
Decision date:
01 March 2024
Jurisdiction:
Equity - Succession & Probate List - Family Provision
Before:
Rees J
Decision:
Summons dismissed with costs.
Catchwords:
SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands.
DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86].
CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care.
FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact.
ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.
Legislation Cited:
Succession Act 2006 (NSW) ss 3(4)(a), 57(1)(e), 57(1)(f), 59(1)(a) and 60(1),(2)
[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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AGLC
Frank v Angell [2024] NSWSC 158
Case
[2024] NSWSC 158
Decision Date
CaseChat Overview and Summary
In Frank v Angell, the court was asked to consider the family provision claims brought by the plaintiffs against the estate of the deceased. The plaintiffs, a Solomon Islands couple, had received substantial financial assistance from the deceased, who provided them with rent-free accommodation and interest-free loans to enable them to pursue education in Australia. When the deceased died, the plaintiffs received $50,000 under his will, the forgiveness of an $80,000 debt, and one year’s rent-free accommodation. However, the plaintiffs had abandoned their studies and planned to return to the Solomon Islands. The deceased’s children were unable to provide care for the plaintiffs during COVID-19 lockdowns, and one of the deceased's sons was stranded overseas.
The court needed to determine whether the plaintiffs were dependent on the deceased within the meaning of section 57(1)(e)(i) of the relevant statute. The court held that the notion of dependency suggests that the person meeting your needs does not expect repayment. Although the deceased provided funds as loans, his support went beyond the plaintiffs' needs to create an opportunity for them to complete further education, gain employment, and secure permanent residence in Australia. The court also considered whether the plaintiffs were members of the deceased’s household under section 57(1)(e)(ii). Additionally, the court examined whether the plaintiffs' assistance was provided for a fee or reward under section 57(1)(f), and whether there were factors warranting further provision under section 59(1)(b). The court concluded that the plaintiffs had received the deceased’s charitable generosity and that there were no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact.
Upon reviewing the adequacy of the provision made for the plaintiffs under section 60(2), the court found that the gift was sufficient to cover the plaintiffs' course fees and assist them to relocate. The deceased’s adult children had yet to acquire their first homes in Sydney, whereas the plaintiffs had a house and were likely to complete their studies and gain employment in the Solomon Islands. The court determined that no further provision was warranted. The court dismissed the plaintiffs’ claims for family provision.