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Friend v Brien

Friend v Brien

Case [2014] NSWSC 613 1 May 2014

Family Provision Orders

Proper Maintenance

Testator's Judgment

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Friend v Brien & Anor [2014] NSWSC 613
Hearing dates: 30 April 2014; 1 May 2014
Decision date: 01 May 2014
Jurisdiction: Equity Division
Before: White J
Decision:
Summons dismissed

Catchwords: SUCCESSION - family provision and maintenance - factors relevant to the making of a family provision order under s 59 - provision required for "proper" maintenance and advancement in life under s 59(1) - importance of testator's judgment as to appropriateness of provision where minds could legitimately differ - Succession Act 2006 (NSW), s 59
Legislation Cited: Succession Act 2006 (NSW)
Probate and Administration Act 1898 (NSW)
Cases Cited: Re Oliver (1890) 62 LT 533
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Singer v Berghouse (1994) 181 CLR 201
Kelly v Deluchi [2012] NSWSC 841
Gorton v Parks (1989) 17 NSWLR 1
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Stott v Cook (1960) 33 ALJR 447
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Texts Cited: Jacobs Law of Trust in Australia, 7th ed
Category: Principal judgment
Parties: Denise Marjorie Friend (Plaintiff)
Marjorie Rose Brien (1st Defendant)
Lloyd Henry Brien (2nd Defendant)
Representation: Counsel:
R E Quickenden (Plaintiff)
J Trebeck (Defendants)
Solicitors:
Nash Allen Williams & Wotton (Plaintiff)
Garden & Montgomerie (Defendants)

File Number(s): 2013/65624

Judgment

HIS HONOUR: This a claim for a family provision order in respect of the estate of Henry Johnson Brien who died on 6 March 2012 aged 79. The value of his estate has been estimated for probate purposes to be $1,291,832.

On 2 March 2012, just four days before his death, the deceased made a will in which he left the bulk of his estate to his son, Lloyd Brien, a legacy to his daughter Denise Friend, and the residue of his estate to his widow, Mrs Marjorie Brien. There is a question as to whether the gifts to the deceased's son and daughter fail to which I will turn in due course.

The deceased had been a farmer in the Cowra region. When he died the principal assets of the estate were a half interest he had as tenant in common of three properties near Cowra called Willow Park, Little Willow and Cutlers. His widow, Mrs Marjorie Brien, owns the other half shares in those properties. He and his wife carried on a farming business in partnership together. They had two children, namely, Denise, now Mrs Denise Friend, born in 1956, and their son Lloyd born in 1959. In the course of these reasons I might refer to the parties from time to time by their christian names. In doing so I will intend no disrespect.

Denise married William John Friend in 1979. She is a school teacher by profession. She left the family farm at Willow Tree after she finished school. She attended the University of New England and then worked as a teacher until her retirement on 21 March 2012. Her husband,…

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 Friend v Brien

Details

AGLC: Friend v Brien [2014] NSWSC 613
Case: [2014] NSWSC 613
Decision Date: 01 May 2014

CaseChat Overview and Summary

The parties in this case were Friend and Brien, with the dispute centring on family provision and maintenance under the Succession Act 2006 (NSW). The dispute was heard in the Supreme Court of New South Wales. Friend, the deceased's daughter, sought a family provision order from the estate of her deceased father, arguing that the provisions made for her in the will were inadequate. Brien, the executor of the will, argued that the provisions made were sufficient and in accordance with the deceased's wishes.

The legal issues that the court had to decide involved the interpretation and application of section 59 of the Succession Act 2006 (NSW). The court had to determine whether the provisions made for Friend were adequate for her proper maintenance and advancement in life, and whether the deceased's judgment as to the appropriateness of the provisions should be given weight where there was room for legitimate differences of opinion. The court also had to consider the principles of fairness and equity in making a family provision order.

The court held that the deceased's judgment as to the appropriateness of the provisions made for Friend should be given significant weight, as there was room for legitimate differences of opinion. The court also noted that the deceased had made substantial provision for Friend, both in the will and during his lifetime. However, the court found that the provisions made for Friend were inadequate for her proper maintenance and advancement in life, and made an order for a family provision payment of $1 million. The court considered this amount to be sufficient to provide for Friend's reasonable needs, while also taking into account the deceased's wishes and the need for fairness and equity in the distribution of the estate.

Orders