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Harris v Harris

Harris v Harris

Case [2018] NSWSC 552 1 May 2018

Family Provision

Proper Provision

Notional Estate Orders

Testator’s Intentions

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Harris v Harris [2018] NSWSC 552
Hearing dates: 14 December 2017
Date of orders: 01 May 2018
Decision date: 01 May 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Pursuant to s 91 Succession Act 2006 (NSW), order that administration in respect of the estate and notional estate of the deceased, Hubert Estes Harris, who died on 15 October 2015, be granted to the plaintiff, Andrew Harris, for the purposes only of permitting his application for a family provision order.
(2) Dispense with compliance with the Court Rules in relation to Order 1.
(3) Pursuant to Rule 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), appoint the first defendant, Jennifer Kay Harris, to represent the estate of the late Hubert Estes Harris, for the purposes of these proceedings.
(4) Dismiss the plaintiff’s claim for provision out of the deceased’s estate.
(5) Order that each party pay his, her or its own costs of the proceedings.

Catchwords: SUCCESSION – family provision – deceased left estate to widow – no provision made in will for adult son – whether provision should be made under s 59 of Succession Act 2006 (NSW) in favour of adult son – whether notional estate orders should be made – appropriate approach to balancing obligations to beneficiary and applicant – respect for testator’s intentions – conclusion that deceased did not fail to make “proper” provision for the applicant’s maintenance, education and advancement in life hence no family provision order made
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)
Crimes Act 1900 (NSW), s 578A(2)
Family Provision Act 1982 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Succession Act 2006 (NSW), Ch 3, ss 59, 60, 75, 76, 78, 87, 88, 89, 91
Uniform Civil Procedure Rules 2005 (NSW), r 7.10(2)(b)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bladwell v Davis [2004] NSWCA 170
Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep)
Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313
Chan v Chan [2016] NSWCA 222
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
Epov v Epov [2014] NSWSC 1086
Golsky v Golsky [1993] NSWCA 111
Gray v Mather [2016] NSWSC 699
Hampson v Hampson [2010] NSWCA 359; (2015) 5 ASTLR 116
Luciana v Rosenblum (1985) 2 NSWLR 65
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641
Category: Principal judgment
Parties: Andrew Harris (Plaintiff)
Jennifer Kay Harris (First…

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 Harris v Harris

Details

AGLC: Harris v Harris [2018] NSWSC 552
Case: [2018] NSWSC 552
Decision Date: 01 May 2018

CaseChat Overview and Summary

In the matter of Harris v Harris, the dispute arose from the estate of a deceased who left their entire estate to their widow. The deceased did not make any provisions in their will for their adult son, who sought a family provision order under section 59 of the Succession Act 2006 (NSW). The son argued that the deceased failed to make proper provision for his maintenance, education, and advancement in life. The court was required to determine whether such a provision should be made and whether notional estate orders should be issued.

The primary legal issue for the court was to assess the deceased's intentions and whether the son's needs were adequately provided for under the will. The court had to consider the statutory criteria for making family provision orders and the appropriate weight to give to the testator's intentions and the applicant's needs. The court also examined the circumstances of the son and the widow to determine if there was a failure to make proper provision.

The court concluded that the deceased had not failed to make proper provision for the son's maintenance, education, and advancement in life. The court found that the deceased had acted reasonably in providing for the widow and had made provisions for the son's needs in other ways. The court emphasised the importance of respecting the testator's intentions and considered the balance between the obligations to the beneficiary and the applicant. As a result, the court decided not to make a family provision order or notional estate orders.

Orders