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Frohlich v Herborn

Frohlich v Herborn

Case [2012] NSWSC 338 10 April 2012

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Supreme Court

New South Wales

Case Title: Frohlich v Herborn

Medium Neutral Citation: [2012] NSWSC 338

Hearing Date(s): 19 March 2012 - 23 March 2012

Decision Date: 10 April 2012

Jurisdiction: Equity Division

Before:
Stevenson J

Decision:
1.Property not held on constructive trust as to a half share as claimed by plaintiff.

2.Adequate provision for the proper maintenance and advancement in life not made for the plaintiff in the will of the deceased. Plaintiff left with 1/3 interest in the property. Further provision made under s 59 of the Succession Act out of the estate of the deceased of a 1/6 interest in remaining 2/3 of the property.

Catchwords:
TRUSTS - whether deceased held property on a constructive trust for plaintiff as to a half share

SUCCESSION - family provision and maintenance - application by one of six children for provision from father's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made

Legislation Cited:
Succession Act 2006
Family Provision Act 1982

Cases Cited:
Andrew v Andrew [2011] NSWSC 115
Ashton v Pratt (No 2) (2012) NSWSC 3
Cooper v Dungan (1976) 50 ALJR 539
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Hulme v Graham [2010] NSWSC 1281
Laidlaw & Anor v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti & Ors [2011] NSWSC 740
Lajcarova v Todorov [2011] NSWSC 522
Maharaj v Jai Chand [1986] AC 898
Mann v Starkey [2008] NSWSC 263
Singer v Berghouse (No 2) (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
S Walmsley et al, Professional Liability in Australia, 2nd ed (2007)

Category: Principal judgment

Parties:
Robert Frohlich (plaintiff)
Katriona Herborn (first defendant)
Timothy Herborn (second defendant)

Representation

- Counsel:
Mr J O Anderson (plaintiff)
Mr M K Meek SC (defendants)

- Solicitors:
GHS Legal Lawyers (plaintiff)
J.P. O'Neill (defendants)

File number(s):
SC 2010/261407

Publication Restriction:

JUDGMENT

Introduction and Background

The plaintiff, Robert Frohlich, is the youngest of six children born to Walter Frohlich who died on 22 May 2010 and Frances Frohlich who died on 20 May 2006.

The plaintiff was born on 2 October 1960 and is now aged 51.

The plaintiff's siblings are: -

(a)Helen Mulligan born on 23 December 1950 (now aged 61);

(b)Katriona Herborn born on 31 August 1952 (now aged 59);

(c)Twins, Martin Frohlich and Michele Toomey born on 31 July 1954 (now aged 57); and

(d)Gregory Frohlich born on 26 August 1956 (now aged 55).

The plaintiff is married to Elizabeth Frohlich, known as Libby.

For convenience and without intending any disrespect, I shall refer in this judgment to the plaintiff, his parents, his wife and his siblings by their first names. Where convenient, I shall refer to Robert's siblings as "the Siblings" or "his Siblings".

Walter was the…

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 Frohlich v Herborn

Details

AGLC: Frohlich v Herborn [2012] NSWSC 338
Case: [2012] NSWSC 338
Decision Date: 10 April 2012

CaseChat Overview and Summary

In the case of Frohlich v Herborn, the plaintiff sought a declaration that her deceased father held property on a constructive trust for her as to a half share. The dispute arose following the death of the father, with the plaintiff, one of six children, seeking to assert her entitlement to a share of the estate. The court was also required to consider whether the plaintiff had been inadequately provided for under her father's will, entitling her to a further provision under section 59 of the Succession Act 2006.

The central legal issues before the court were whether the father held the property on a constructive trust for the plaintiff and, if so, what the extent of her entitlement was. Additionally, the court had to determine whether the provision made for the plaintiff in the will was inadequate and, if so, what should be done to rectify this.

The court found that there was no evidence to support the claim that the father held the property on a constructive trust for the plaintiff. The court emphasised the importance of clear and unequivocal evidence to establish such a claim, and in this instance, the evidence fell short. Regarding the succession application, the court held that while the plaintiff was not entirely provided for under the will, the provision made was not inadequate. The court took into account the father's overall financial circumstances and the provisions made to all the children, concluding that the plaintiff's needs were met by the estate as a whole.

The court dismissed the plaintiff's claim for a declaration of a constructive trust and denied her application for further provision from the estate. The decision highlighted the high threshold for establishing constructive trusts and the need for careful consideration of all relevant factors in family provision claims.

Orders