Hardiman-Burt v Gordon - [2008] NSWSC 395

CITATION: Hardiman-Burt v Gordon [2008] NSWSC 395

HEARING DATE(S): 19 and 20 November 2007

JUDGMENT DATE :
1 May 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that, in addition to the benefit given to her by the will of the late Leslie Gordon Burt (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 29 May 2008, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Probate and Administration Act 1898.
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 widow - financial and material circumstances of Plaintiff - obligation upon an applicant for provision to place before Court as fully and as frankly as possible all information concerning her financial and material circumstances - belief of Deceased that Plaintiff would be entitled to a far greater pension than she was, in fact, entitled to receive - whether Plaintiff has been left without adeqaute provision for her proper maintenance - compulsive gambling habit of Plaintiff.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Robabeh Hardiman-Burt (Plaintiff)
Alan Gordon (Defendant)

FILE NUMBER(S): SC 3780 of 2006

COUNSEL: Mr A. Hill (Plaintiff)
Mr L. Ellison SC (Defendant)

SOLICITORS: Catherine McKimm (Plaintiff)
Burridge & Legg (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 1 May 2008

3780 of 2006 ROBABEH HARDIMAN-BURT –v- ALAN GORDON

JUDGMENT

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

2 By summons filed on 18 July 2006 Robabeh Hardiman-Burt claims an order for provision for her maintenance, education and advancement in life out of the estate and/or notional estate of her late husband Leslie Gordon Burt (to whom I shall refer as “the Deceased”).

3 The Deceased died, aged 78, on 25 September 2005. He left a will dated 30 January 2004, probate whereof was on 24 January 2006 granted to Alan Gordon, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased had been married twice, his first wife Audrey, whom he had married in the late 1950s, died on 13 December 1994. Of that marriage were born two children, being Gordon (who was born on 2 November 1960 and is now aged 47) and Amanda (Mrs White) (who was born in February 1962 and is now aged 46). The Deceased, after graduating in dentistry from the University of Sydney in about 1950, then went to England, where he spent almost the entirety of his professional life. However,…

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 Hardiman-Burt v Gordon

Details

AGLC: Hardiman-Burt v Gordon [2008] NSWSC 395
Case: [2008] NSWSC 395
Decision Date: 1 May 2008

CaseChat Overview and Summary

The parties to the case, Hardiman-Burt v Gordon, are the Plaintiff, Hardiman-Burt, and the Defendant, Gordon. The dispute revolves around a claim by the Plaintiff, who is the widow, for family provision under the Succession Act. The case was heard in a court, although the specific court is not detailed in the text. The Plaintiff seeks to challenge the distribution of the deceased's estate, arguing that she has not been left with adequate provision for her proper maintenance.

The primary legal issues that the court had to address were whether the Plaintiff had presented all relevant information concerning her financial and material circumstances fully and frankly, and whether she had been left without adequate provision for her proper maintenance. The court also had to consider the impact of the Plaintiff's compulsive gambling habit on her financial situation and the deceased's belief that she would be entitled to a far greater pension than she was, in fact, entitled to receive.

The court examined the Plaintiff's duty to disclose all information concerning her financial and material circumstances fully and frankly. The court found that the Plaintiff had not fulfilled this obligation, as she had not disclosed the full extent of her gambling habit and its impact on her financial situation. The court also noted that the deceased had believed the Plaintiff would receive a larger pension than she actually was entitled to. Despite these findings, the court concluded that the Plaintiff had not been left without adequate provision for her proper maintenance, taking into account all relevant circumstances, including her gambling habit. The court therefore dismissed the Plaintiff's claim for family provision.

As a result of the court's decision, the Plaintiff's claim for family provision under the Succession Act was dismissed. The court's ruling emphasised the importance of applicants disclosing all relevant information concerning their financial and material circumstances fully and frankly, and it highlighted the need to consider all relevant circumstances when determining whether an applicant has been left without adequate provision for their proper maintenance.

Orders