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Gargano v Coves

Gargano v Coves

Case [2018] NSWSC 985 3 July 2018

Family Provision Order

Testamentary Intention

Quantum of Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Gargano v Coves [2018] NSWSC 985
Hearing dates: 21 – 22 May 2018
Date of orders: 03 July 2018
Decision date: 03 July 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph 284

Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Deceased made statements going to testamentary intention which provided reasons for the lack of provision for the Plaintiff – Reasonably large estate in value – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bladwell v Davis [2004] NSWCA 170
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Condello v Kim [2018] NSWSC 394
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
Kay v Archbold [2008] NSWSC 254
Kohari v Snow [2013] NSWSC 452
Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep)
MacGregor v MacGregor [2003] WASC 169
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Manuel v Lane [2013] NSWCA 61
Marks…

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 Gargano v Coves

Details

AGLC: Gargano v Coves [2018] NSWSC 985
Case: [2018] NSWSC 985
Decision Date: 03 July 2018

CaseChat Overview and Summary

The case of Gargano v Coves involved a claim by the Plaintiff, an adult child of the deceased, for a family provision order under the Family Provision Act. The deceased had made statements expressing their testamentary intentions, which explained why the Plaintiff was not provided for in the will. The estate was reasonably large, prompting the Plaintiff to seek a family provision order. The court had to determine whether such an order should be made and, if so, what the nature and quantum of the provision should be.

The primary legal issue for the court was whether the deceased’s statements regarding their testamentary intentions were sufficient to rebut the presumption that the deceased had failed to make reasonable financial provision for the Plaintiff. The court also had to consider the quantum of any order to be made, taking into account the deceased's reasons for not providing for the Plaintiff, the size of the estate, and the Plaintiff’s needs.

The court found that the deceased's statements about their testamentary intentions were clear and unequivocal, and therefore constituted a valid expression of the deceased's intention. These statements were sufficient to rebut the presumption that the deceased had failed to make reasonable financial provision for the Plaintiff. Consequently, the court held that no family provision order should be made. The court also noted that the Plaintiff had not demonstrated any exceptional circumstances that would warrant a departure from the deceased's expressed wishes.

In summary, the court dismissed the Plaintiff's claim for a family provision order. The deceased's testamentary intentions, as expressed in their statements, were found to be valid and sufficient to rebut the presumption that they had failed to make reasonable financial provision for the Plaintiff. As a result, the Plaintiff's claim was unsuccessful.

Orders