Green v Ogden - [2003] NSWSC 558

CITATION: Green v Ogden [2003] NSWSC 558

HEARING DATE(S): 8, 9 April 2003

JUDGMENT DATE:
24 June 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1) I order that, in addition to the provision made for her by the will of the late Ronald Edgar Ogden ("the Deceased"), the Plaintiff receive a legacy of $461,000, such legacy not to bear interest if paid on or before 24 August 2003, and if not so paid to bear interest at Supreme Court rates; (2) I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (3) The exhibits may be returned.

CATCHWORDS: Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Relationship between Plaintiff and Deceased - Conduct of Plaintiff in respect whereof Deceased expressed concern - Obligation upon Plaintiff to place before the Court appropriate evidence of her needs and requirements and cost of meeting those needs and requirements - Nature of provision to which Plaintiff has established an entitlement.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Wentworth v Wentworth (1995) 37 NSWLR 703

PARTIES :
Diana Gloria Green (Plaintiff)
Ronald John Ogden (Defendant)

FILE NUMBER(S): SC 2505/02

COUNSEL: M. Gilmour (Plaintiff)
J. Wilson (Defendant)

SOLICITORS: Molloy & Schrader, Solicitors (Plaintiff)
Hunt & Hunt (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 24 June 2003

2505 of 2002 DIANA GLORIA GREEN -v- RONALD JOHN OGDEN

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 2 May 2002 the Plaintiff, Diana Gloria Green, claims an order for provision for her maintenance, education and advancement in life out of the estate of her late father, Ronald Edgar Ogden (to whom I shall refer as “the Deceased”).

3 The Deceased died on 28 January 2002, one day before his ninetieth birthday. He left a will dated 8 July 1997, probate whereof was on 19 September 2002 granted to Ronald John Ogden, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased, who was a widower at the time of his death, was survived by his two children, being the Plaintiff and the Defendant. The Plaintiff, who was born on 9 September 1958, is now aged forty-five, whilst the Defendant, who was born on 7 August 1957, is now aged forty-six.

5 The Deceased by his will gave 30,000 of his shares in ECO Air Limited “to such of my daughter Diana Green and her children Natasha and Cherie as shall survive me and attain the age of twenty-one years and if more than one in equal shares”. He left the residue of his estate to the Defendant. The Deceased, however, had disposed of the foregoing shares before his death, and in consequence that…

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 Green v Ogden

Details

AGLC: Green v Ogden [2003] NSWSC 558
Case: [2003] NSWSC 558
Decision Date: 24 June 2003

CaseChat Overview and Summary

In the matter of Green v Ogden, the Plaintiff, the adult daughter, initiated legal proceedings against the Defendant, the Executor of the deceased's estate, seeking a greater provision from the estate under the Family Provision Act 1969 (NSW). The central dispute revolved around the adequacy of the provision made to the Plaintiff from the deceased's estate and the Plaintiff's financial and material circumstances at the time of the deceased's death. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the Plaintiff had established a valid claim under the Family Provision Act and, if so, the appropriate nature and extent of the provision she was entitled to receive. The court had to consider the Plaintiff's financial and material circumstances at the time of the deceased's death, the relationship between the Plaintiff and the deceased, and the deceased's expressed concerns regarding the Plaintiff's conduct. Additionally, the court was required to determine the obligations of the Plaintiff in placing before the court appropriate evidence of her needs and requirements and the cost of meeting those needs and requirements.

The court held that the Plaintiff had established a valid claim under the Family Provision Act. The court found that the Plaintiff had a close and loving relationship with the deceased, which was significant in the context of the claim. The court also noted the deceased's expressed concerns about the Plaintiff's conduct and the Plaintiff's obligation to provide evidence of her needs and requirements. Ultimately, the court determined that the Plaintiff was entitled to a provision from the estate that would meet her reasonable financial needs and requirements. The court ordered the Executor to pay the Plaintiff a specified sum from the estate.

Orders