Govers v Luff - [2000] NSWSC 509

CITATION: Govers v Luff [2000] NSWSC 509

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4552/94; 1461/97

HEARING DATE(S): 2 and 3 December 1999, 22 and 23 February 2000.

JUDGMENT DATE: 9 June 2000

PARTIES :

Genevieve Marie Govers (P in 4552/94)
Marie Lyn Govers (P1 in 1461/97)
Simon Robert Freestone (P2 in 1461/97)
Barry Luff and Ines Freestone (Ds)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. M. Meek (P in 4552/94)
Ms. M. Painter (P1 and P2 in 1461/97)
Mr. D. McGovern (Ds)

SOLICITORS: Legal Aid Commission of New South Wales (P in 4552/94)
Wood Roberts Solicitors (P1 and P2 in 1461/97)
Commins Hendricks Solicitors (Ds)

CATCHWORDS: Family Provision - Claim by adult daughter suffering from Down's Syndrome - No provision made by testator - No Contact by testator with plaintiff during lifetime of testator - Plaintiff resides in a group home - Present circumstances of plaintiff - Present and likely future needs of plaintiff - Claims by former wife and adult son - Proceedings instituted after expiry of prescribed period - Application for extension of time - Whether sufficient cause has been shown for proceedings not having been instituted within that period - Conduct of solicitor - No prejudice to defendants - Exercise of discretion involves a consideration of substantive claims - Lack of candour on part of former wife in failing to disclose information concerning her circumstances - Very short marriage to testator - Former wife subsequently entered into another relationship, and later into a second marriage - No contact with testator - No factors which warrant the making of the application - No provision made for adult son by testator - Absence of contact between testator and plaintiff during lifetime of testator - Plaintiff training for a career as an actor - Plaintiff has no assets and maintains a frugal lifestyle - Competing claims of widow and infant child (aged sixteen) of testator (who are the beneficiaries under his will) - Widow has subsequently married again - Contribution by widow to acquisition and conservation of assets of the estate.

LEGISLATION CITED: Family Provision Act 1982

DECISION: See paragraph 132 of judgment.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 9 June 2000
4552/94 GENEVIEVE MARIE GOVERS BY HER TUTOR COLLEEN ANN VISSER -v- BARRY LUFF AND INES FREESTONE - ESTATE OF ROBERT CLARENCE FREESTONE 1461/97 MARIE LYNN GOVERS AND SIMON ROBERT FREESTONE -v- BARRY LUFF AND INES FREESTONE - ESTATE OF ROBERT CLARENCE FREESTONE
JUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 18 November 1994 Genevieve Mary Govers (a disable person, who brings these proceedings by her tutor Colleen Ann Visser) claims an order for provision for her maintenance and advancement in life out of the estate of her late father Robert Clarence Freestone (to whom I shall refer as “the deceased”). 3 By summons filed on 21 February 1997 Marie Lynn Govers and Simon Robert Freestone each claim an order for provision for their…

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 Govers v Luff

Details

AGLC: Govers v Luff [2000] NSWSC 509
Case: [2000] NSWSC 509
Decision Date: 9 June 2000

CaseChat Overview and Summary

The case of Govers v Luff involved an adult daughter with Down's Syndrome who sought family provision from her late father's estate. The daughter had no contact with her father during his lifetime and lived in a group home. The dispute arose from the fact that the testator had made no provision for his daughter in his will, and the daughter's claim was made after the expiration of the prescribed period. The former wife and adult son of the testator also made claims to the estate.

The court was required to determine whether the daughter's claim was within the statutory time limit and whether there was sufficient cause to extend that time. The court also had to consider the competing claims of the former wife and infant child of the testator who were beneficiaries under the will. The court had to assess the substantive claims and consider whether the daughter's needs warranted a departure from the usual course of distribution under the Family Provision Act.

The court found that there was no sufficient cause to extend the time for the daughter's claim as there were no factors that warranted the making of the application. The court also found that the former wife's lack of candour in failing to disclose information concerning her circumstances did not warrant an extension of time. The court noted that the widow had made a contribution to the acquisition and conservation of the assets of the estate and that there was no evidence of any misconduct on her part. The court ultimately decided that the widow and infant child were entitled to the benefit of the estate.

This decision highlights the importance of timely action in family provision claims and the need for candour in the disclosure of relevant information. The court's decision also emphasises the need to consider the substantive claims and the contributions made by the beneficiaries to the estate. The decision provides guidance to practitioners on the factors that the court will consider when deciding whether to extend the time for a family provision claim.

Orders