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Goldberg v Landerer

Goldberg v Landerer

Case [2010] NSWSC 1431 10 December 2010

Family Provision

Maintenance

Failure to Make Provision

Residuary Beneficiary

Succession Law

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CITATION: Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431

HEARING DATE(S): 11-14 October 2010

JUDGMENT DATE :
10 December 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: In proceedings 2008/281185, plaintiff to receive a provision of $850,000 in lieu of the provision of $50,000.
In proceedings 2008/281750, plaintiff to receive a life estate in a one-bedroom unit not exceeding $400,000 in value.
Matter stood over for orders to be prepared based upon the conclusions contained in the reasons for judgment.

CATCHWORDS: SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicants - principles upon which relief granted - application by children - where testator's adult daughter and son each received bequests of $50,000 from an estate worth approximately $5 million and sole residuary beneficiary (testator's wife) has significant other assets

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)

CATEGORY: Principal judgment

CASES CITED: Alexander v Jansson [2010] NSWCA 176
Dolman v Palmer [2005] NSWCA 361
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Nicholls v Hall [2007] NSWCA 356
Re Fulop (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987)
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin (2005) 221 CLR 191
Walker v Walker [1996] NSWSC 188

PARTIES:
In proceedings 2008/281185:
Judy Goldberg (plaintiff)
John Landerer (defendant)
In proceedings 2008/281750:
Rony Kennedy (plaintiff)
John Landerer (defendant)

FILE NUMBER(S): SC 2008/281185; 2008/281750

COUNSEL:
In proceedings 2008/281185:
V R W Gray (plaintiff)
M S Willmott SC, P J Livingstone (defendant)
In proceedings 2008/281750:
D M Coulton (plaintiff)
M S Willmott SC, P J Livingstone (defendant)

SOLICITORS:
In proceedings 2008/281185:
D S M Austin Solicitor (plaintiff)
Les Pozniak Landerer & Company (defendant)
In proceedings 2008/281750:
George Sten & Co. (plaintiff)
Les Pozniak Landerer & Company (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 11-14 October 2010
Date of Judgment: 10 December 2010

2008/281185 Judy Goldberg v John Landerer
2008/281750 Rony Kennedy v John Landerer

JUDGMENT

1 REIN J: These proceedings are brought by Judy Goldberg (“Judy”) and Rony Kennedy (“Rony”), who are the two children of the marriage of the late Louis Kennedy and the late Alice Kennedy (“Alice”), against the estate of the late Louis Kennedy (“the testator”), who died on 4 January 2008. The testator and Alice Kennedy divorced in 1973.

2 By his will of 16 December 1998, the testator left a $50,000 bequest to each of Judy and Rony, but left the balance of his estate to his widow, his second wife, Martha Kennedy (“Martha”). The testator married Martha in 1976, when he was 50 years old and Martha was 21 years old. Louis and Martha have two children, James Kennedy (“James”) and Justin Kennedy (“

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 Goldberg v Landerer

Details

AGLC: Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431
Case: [2010] NSWSC 1431
Decision Date: 10 December 2010

CaseChat Overview and Summary

The applicants, Goldberg and Landerer, are the adult children of the deceased, seeking family provision orders under the Succession Act 2006. The applicants sought to have the court deem that the deceased had failed to make sufficient provision for them, with the intention of receiving additional funds from the estate. The estate was valued at approximately $5 million, with the applicants each receiving bequests of $50,000. The sole residuary beneficiary, the deceased’s wife, held significant other assets. The central legal issue before the court was whether the applicants had established that the deceased had failed to make sufficient provision for them. This required consideration of the statutory criteria and principles established by precedent, including the extent to which the applicants were financially independent and the nature and extent of the provision made by the deceased.

The court assessed the applicants’ financial independence, noting that both were in full-time employment and had their own families and assets. Despite this, the court recognised that the applicants had made significant contributions to the deceased’s welfare over many years. The court also considered the value of the bequests in the context of the overall estate, finding that while the bequests were not insignificant, they did not fully account for the applicants’ contributions and needs. In determining whether the deceased had failed to make sufficient provision, the court balanced the statutory criteria and principles against the specific circumstances of the case, ultimately finding in favour of the applicants. The court ordered that the estate provide additional funds to the applicants, reflecting their contributions and needs, while also considering the wife’s significant other assets.

Orders