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Grant v Grant

Grant v Grant

Case [2020] NSWSC 760 5 June 2020

Family Provision

Unconscionable Conduct

Equitable Charges and Liens

Contribution to Acquisition or Improvement of Another's Property

Succession Law

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Grant v Grant [2020] NSWSC 760
Hearing dates: 4, 5 and 6 May 2020
Date of orders: 19 June 2020
Decision date: 05 June 2020
Jurisdiction: Equity - Family Provision List
Before: Rein J
Decision:
See [40]-[41], [44] and [46]

Catchwords:
SUCCESSION – Family provision – Claim by adult child of the Deceased – Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made – Plaintiff brought a family provision claim against her deceased mother’s estate, the estate being represented by the defendant (the mother’s son and brother of the plaintiff) as executor – The will did not make any provision for the plaintiff because the testatrix had already given to the plaintiff during her lifetime an amount roughly equal to what the will would provide to the other two adult children; in addition, the testatrix considered in her will that the plaintiff owed the estate several hundred thousand dollars in unpaid loans – Plaintiff discontinued her family provision claim during the hearing.

EQUITY – Unconscionable conduct – Special disability or disadvantage – Whether unconscientious advantage taken – Cross claim by deceased estate for recovery of unpaid loans from adult child of the testatrix – Between 2012-2015 the testatrix transferred $931,720 to the plaintiff and her de facto husband (together, “the cross defendants”), of which $190,000 was repaid in 2013 – The testatrix by her will expressed an intention to treat $380,000 of the transfers as gifts, with the remaining $361,020 as unpaid loans due to the estate – The defendant cross claimed against the cross defendants for the $361,020 – The various transfers were made for purposes of assisting the cross defendants to purchase land and construct a house in Paterson NSW in which the testatrix was also to be accommodated for the remaining years of her life – Where the testatrix was not independently advised in relation to any of the transfers and was not kept informed about the details of the purchase and build – Where the cross defendants continually pressured the testatrix to transfer her money to them to finance the project and where the testatrix never ended up living at the property before her death – Held: transfers totalling $450,000 were held to be loans payable to the estate (or, alternatively, set aside on grounds of unconscionable conduct), but in either case only up to the amount of $361,020.
EQUITY – Equitable charges and liens – Contribution to acquisition or improvement of another’s property – Where the Court imposed an equitable lien in favour of the estate over the cross defendant’s property up to the amount of $361,020 (plus interest) to account for the circumstances in which the cross defendants obtained the benefit of the transfers, particularly since the money which the testatrix transferred was to be put towards the property.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Bridgewater…

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 Grant v Grant

Details

AGLC: Grant v Grant [2020] NSWSC 760
Case: [2020] NSWSC 760
Decision Date: 05 June 2020

CaseChat Overview and Summary

In the case of Grant v Grant, the plaintiff, an adult child of the deceased, brought a family provision claim against the estate of her deceased mother, represented by the defendant, the deceased's son and the plaintiff's brother. The plaintiff sought to argue that the will made inadequate provision for her, as the deceased had already given her during her lifetime an amount roughly equal to what the will would provide to the other two adult children. Additionally, the will expressed an intention to treat certain unpaid loans as due to the estate. The plaintiff discontinued her family provision claim during the hearing.

The legal issues before the court involved whether the deceased had made inadequate provision for the plaintiff, and if so, the nature and quantum of the provision to be made. The court also had to determine whether the deceased estate was entitled to recover unpaid loans from the plaintiff, considering the transfers made between 2012-2015 to assist in purchasing land and constructing a house in Paterson NSW, where the deceased was to be accommodated for the remainder of her life.

The court found that the transfers totalling $450,000 were loans payable to the estate, or alternatively, set aside on grounds of unconscionable conduct. In either case, only up to the amount of $361,020 was payable. The court imposed an equitable lien in favour of the estate over the cross defendant’s property up to the amount of $361,020 (plus interest) to account for the circumstances in which the cross defendants obtained the benefit of the transfers.

The court made orders that the equitable lien be registered over the cross defendant’s property and that the defendant recover the amount of $361,020 (plus interest) from the cross defendants.

Orders