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Harrisson v Skinner

Harrisson v Skinner

Case [2013] NSWSC 736 11 June 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Harrisson v Skinner [2013] NSWSC 736
Hearing dates: 22 May 2013
Decision date: 11 June 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Orders that the Plaintiffs' Summons be dismissed. Orders that any argument as to costs be listed on a date to be arranged. Meantime, the Exhibits should be returned.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are also daughters of the deceased to whom Probate of the deceased's Will granted - Proceedings not commenced within time - Question whether sufficient cause to extend time established - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made - Very small estate - Competing claims of beneficiaries
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 1981 (Qld)
Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Cassel, Re Estate [2000] NSWSC 294
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Estate Harriett Cassel, Re [2000] NSWSC 294
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hitchcock v Pratt [2010] NSWSC 1508
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218
Kallidis, Estate of; Kallidis v Kallidis [2012] NSWSC 1485
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
McLeod v Johns…

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 Harrisson v Skinner

Details

AGLC: Harrisson v Skinner [2013] NSWSC 736
Case: [2013] NSWSC 736
Decision Date: 11 June 2013

CaseChat Overview and Summary

The plaintiffs in the case, Harrisson v Skinner, are two daughters of a deceased individual who seek a family provision order under Chapter 3 of the Succession Act 2006. The defendants, also daughters of the deceased, were granted Probate of the deceased's Will. The plaintiffs' application was not filed within the statutory time limit, raising the issue of whether there was sufficient cause to extend the time. The central legal issues were whether adequate and proper provision was made in the Will for the plaintiffs and, if not, what the nature and quantum of the provision should be. The estate was of very small value, leading to competing claims among the beneficiaries.

The court had to consider the statutory provisions regarding the extension of time for applications under the Succession Act 2006 and assess whether the plaintiffs demonstrated sufficient cause for the delay. It was also necessary to evaluate the deceased's Will to determine whether it contained adequate and proper provisions for the plaintiffs. If the Will was found to be deficient, the court had to decide the appropriate provision to be made, considering the small size of the estate and the competing claims of the beneficiaries.

The court found that the plaintiffs had not established sufficient cause for extending the time beyond the statutory limit, and thus their applications were dismissed. The Will was examined, and it was determined that the deceased had made adequate and proper provision for the plaintiffs. Given the small estate and the competing claims, the court concluded that no further provision needed to be made. The plaintiffs' applications were therefore unsuccessful.

The final orders of the court were that the plaintiffs' applications for a family provision order were dismissed. The court also ruled that there was no need to make further provision for the plaintiffs under the Succession Act 2006. The defendants, who were granted Probate of the Will, retained their positions as the legal heirs of the estate.

Orders