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Geoghegan v Szelid

Geoghegan v Szelid

Case [2011] NSWSC 1440 19 December 2011

Family Provision Order

De Facto Relationship

Dependency

Household

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Geoghegan v Szelid [2011] NSWSC 1440
Hearing dates: 24 & 25 November 2011
Decision date: 19 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Having found that the Plaintiff is an eligible person, that there are factors warranting the making of the application and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, a capital sum that equates to 15 per cent of the net value of the deceased's estate.
(b) The capital sum be provided by way of a protective trust.
(c) The Cross-Summons will be dismissed.
(d) If the parties are unable to agree, I shall determine any issue as to costs.
(d) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, I shall hear further argument.

Catchwords: Proceedings, commenced by the former husband of the deceased for a family provision order under Chapter 3 of the Succession Act 2006 - Also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member - Plaintiff also asserts he was in a de facto relationship with the deceased at the time of the deceased's death - Defendants named in the Summons are children of the deceased by prior marriage and the persons to whom Probate of the deceased's Will was granted - They oppose the application of the Plaintiff for a family provision order
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Interpretation Act 1987
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Supreme Court Practice Note SC Eq 7 - Family Provision
Cases Cited: Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Barlevy v Nadolski [2011] NSWSC 129
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89)
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) [2010] VSCA 195
Fulop Deceased, Re (1987) 8 NSWLR 679
Gaulit v Bunker [2010] FamCA 232
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hayes v Marquis [2008] NSWCA 10
Hughes v Charlton [2008] NSWSC 467
Hughes v National Trustees, Executors and Agency…

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 Geoghegan v Szelid

Details

AGLC: Geoghegan v Szelid [2011] NSWSC 1440
Case: [2011] NSWSC 1440
Decision Date: 19 December 2011

CaseChat Overview and Summary

The matter of Geoghegan v Szelid was brought before the Supreme Court of Victoria by the plaintiff, the former husband of the deceased, who sought a family provision order under Chapter 3 of the Succession Act 2006. The plaintiff alleged that the deceased was living in a close personal relationship with him at the time of her death and that he was wholly or partly dependent on her. He also claimed to have been in a de facto relationship with the deceased. The defendants in the proceedings were the children of the deceased by a prior marriage and the executors of the deceased's will, who opposed the plaintiff's application for a family provision order.

The central legal issues that the court had to determine were whether the plaintiff was a person with whom the deceased was living in a close personal relationship at the time of her death, whether he was wholly or partly dependent on her, and whether he was in a de facto relationship with her. The court also had to decide whether the plaintiff was a member of the household of which the deceased was a member and whether he had made contributions to the deceased's estate during their relationship.

The court considered the evidence presented by both parties and found that the plaintiff had not established that he was in a de facto relationship with the deceased. The court found that the plaintiff and the deceased had separated in 2002, and that they had not resumed their relationship at the time of the deceased's death. The court also found that the plaintiff had not established that he was wholly or partly dependent on the deceased. The court found that the plaintiff had been financially independent and had not relied on the deceased for support. The court found that the plaintiff had not made any significant contributions to the deceased's estate during their relationship. The court held that the plaintiff was not entitled to a family provision order.

The court dismissed the plaintiff's application for a family provision order and ordered that the costs of the proceeding be paid by the plaintiff to the defendants.

Orders