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Frizelle v Old

Frizelle v Old

Case [2009] NSWSC 1259 23 November 2009

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CITATION: Frizelle v Old [2009] NSWSC 1259

HEARING DATE(S): 19/08/09, 20/08/09, 10/09/09, 11/09/09

JUDGMENT DATE :
23 November 2009

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Order for provision out of father's estate.
No order for provision out of mother's estate.

CATCHWORDS: SUCCESSION - family provision - claim by adult daughter on estates of both parents - plaintiff one of two adult children - estate left to them equally by mother - father's estate given predominantly to son - some estrangement between plaintiff and father until last years of his life - whether plaintiff left without adequate provision - held inadequate provision by father but not by mother - limited relief granted

LEGISLATION CITED: Family Provision Act 1982, ss 6(1)(b), 7, 9(2)
Uniform Civil Procedure Rules 2005, Schedule 7

CATEGORY: Principal judgment

CASES CITED: Benney v Jones (1991) 23 NSWLR 559
Clemens v Byrnes [2007] NSWSC 421
Cropley v Cropley [2002] NSWSC 349
Eather v Maher [2006] NSWSC 746
Fellows v Paterson [2002] NSWSC 190
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Kalmar v Kalmar [2006] NSWSC 437
Kleinig v Neal (No 2) [1982] 2 NSWLR 532
Nicholls v Hall [2007] NSWCA 356
Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361
Permanent Trustee Co Ltd v Fraser (1996) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Fulop (1987) 8 NSWLR 679; Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Re Gilbert (1946) 46 SR (NSW) 318
Scott v Scott [2009] NSWSC 567
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin & Ors [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (unreported, NSWSC, 17 May 1996)

PARTIES: Coralie Susan Frizelle - Plaintiff
Robert James Old - Defendant

FILE NUMBER(S): SC 4973/08

COUNSEL: Mr A L Hill - Plaintiff
Mr S J Burchett - Defendant

SOLICITORS: Johnson & Sendall - Plaintiff
Manfred Dougall & Company - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 23 NOVEMBER 2009

4973/08 CORALIE SUSAN FRIZELLE v ROBERT JAMES OLD

JUDGMENT

1 Two applications are advanced in these proceedings under the Family Provision Act 1982. They are made by Coralie Susan Frizelle in respect of the estate of her late mother, Dulcie Mildred Old (“Mrs Old”) who died on 6 July 2007 aged 83, and the estate of her late father, Cedric James Old (“Mr Old”) who died on 26 April 2007 aged 92. Mr Old and Mrs Old were married but had lived separately from one another for some forty years.

2 By summons dated 30 September 2008, the plaintiff applies for provision out of each estate for her maintenance, education and advancement in life.

3 The plaintiff, now aged 53, is one of the two children of Mr Old and Mrs Old. The other child is her brother Robert James Old, aged 51.

4 Robert James…

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 Frizelle v Old

Details

AGLC: Frizelle v Old [2009] NSWSC 1259
Case: [2009] NSWSC 1259
Decision Date: 23 November 2009

CaseChat Overview and Summary

In the case of Frizelle v Old, the plaintiff, an adult daughter, sought a claim on the estates of both her parents. The mother's estate was left equally between the two adult children, whereas the father's estate was predominantly given to his son. The plaintiff and her father had been estranged until the last years of his life, prompting the plaintiff to argue that she had been left without adequate provision. The court was tasked with determining whether the provisions made by the parents were adequate and, if not, what relief should be granted to the plaintiff.

The central legal issue before the court was whether the provisions made by the parents were adequate under the family provision legislation. Specifically, the court needed to assess whether the plaintiff had been left without adequate provision for her maintenance, education, or advancement in life. This required a careful consideration of the respective estates, the contributions made by the parents, and the nature of the relationship between the plaintiff and her father.

The court found that while the mother's estate had been divided equally, which was deemed adequate, the father's estate had been predominantly left to his son. Given the estrangement between the father and the plaintiff until the last years of his life, the court concluded that the father's provisions were inadequate. However, the court found that the plaintiff had been left with sufficient resources from the mother's estate, and thus, the relief granted was limited to the father's estate. The court ordered that a portion of the father's estate be transferred to the plaintiff to provide for her adequate provision.

Orders