Gregory Franks v Brad Franks

[2013] HCASL 167

GREGORY FRANKS

v

BRAD FRANKS

[2013] HCASL 167
S85/2013

1. The applicant and the respondent are sons of the late Dawn Franks.  The applicant is executor of his mother's will.  The only significant asset of the estate was a house in Port Macquarie valued between $409,000 and $420,000.

2. By her will, the deceased left legacies of $20,000 to her son Brad (the respondent to this application) and $10,000 to a niece.  She left the residue of the estate to her son Gregory (the applicant).

3. The respondent applied to the Supreme Court of New South Wales for further provision from his mother's estate.  Alan Franks, husband of the deceased, also applied for provision from the estate.  The applications were heard together.

4. At first instance, Macready AsJ ordered that there be provision for the husband by providing, in effect, that he have a life interest in the house at Port Macquarie and that on the death of the husband, the interest in remainder be held equally for the two sons.

5. The applicant appealed to the Court of Appeal of the Supreme Court of New South Wales.  That Court (McColl JA, Sackville and Young AJJA) varied the orders made at first instance by providing, in effect, that on their father's death, the house would vest as to two‑thirds in the applicant and one‑third in the respondent.

6. The applicant alleges that the Court of Appeal did not properly apply the Succession Act 2006 (NSW), failed to take account of relevant considerations and denied him procedural fairness. He further alleges that the respondent's conduct disentitled him to any further provision from his mother's estate.

7. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

8. We see no reason to doubt the correctness of the conclusions reached by the Court of Appeal.  No question of general principle would fall for consideration if special leave were to be granted.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 October 2013 S.M. Crennan