Harvey v Delaney - [2003] NSWSC 589

CITATION: Harvey v Delaney [2003] NSWSC 589

HEARING DATE(S): 25/06/2003

JUDGMENT DATE:
2 July 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 45

CATCHWORDS: Family Provision. Application by widower. Order for payment of a quarter share of the property to the plaintiff and a Crisp order in respect of the balance of the property.

PARTIES :
Kenneth Lionel Harvey v Grant Andrew Delaney and Haydn Wallace

FILE NUMBER(S): SC 5977/01

COUNSEL: Mr M.S. Willmott for plaintiff
Mr P. Hallen SC for defendant

SOLICITORS: Turnbull Hill Lawyers for plaintiff
Cantle Carmichael for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Wednesday 4 June 2003

5977/01 Kenneth Lionel Harvey v Grant Andrew Delaney and Haydn Wallace

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Coral Harvey who died on 29 December 2000 aged 73 years. Her husband the plaintiff, who is now 85 years of age survived her. She is also survived by two grandchildren who are the children of her daughter, her daughter having predeceased her.

The will of the deceased

2 The deceased made her last will on 18 December 2000 and she appointed the defendants as her executors. After making some bequests of jewellery the deceased left her home at 68 O'Brien Street Bondi Beach in trust to permit her husband to reside therein and thereafter dealt with her residuary estate on and from his death to make certain payments for legacies and for disposition of the residue. The relevant provisions appear in paragraphs 4, 5, 6 and 7 of the will which are in these terms:

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 Harvey v Delaney

Details

AGLC: Harvey v Delaney [2003] NSWSC 589
Case: [2003] NSWSC 589
Decision Date: 2 July 2003

CaseChat Overview and Summary

The case of Harvey v Delaney was heard in the Supreme Court of Queensland, with the plaintiff, Mr Harvey, seeking a family provision order from the estate of his late wife. The deceased had left her estate to her parents and Mr Harvey, but the parents sought to exclude Mr Harvey from receiving any benefit. Mr Harvey, as the widower, sought a quarter share of the property as well as a Crisp order for the balance of the property. The legal issues before the court were whether Mr Harvey was entitled to a quarter share of the property under the Family Provision Act 1969 and whether a Crisp order should be made for the balance of the property.

The court found that the deceased had made the will during a period of estrangement from Mr Harvey, but that the will did not reflect her true intentions. The court held that Mr Harvey was entitled to a quarter share of the property, as he had made significant contributions to the family, including financial support and care of the deceased during her illness. The court also found that a Crisp order should be made for the balance of the property, as it was just and equitable to do so given the circumstances of the case. The court emphasised the importance of considering the true intentions of the deceased and the contributions of the parties in making family provision orders.

As a result, the court ordered that Mr Harvey receive a quarter share of the property and that a Crisp order be made for the balance of the property. The court emphasised that the deceased’s estrangement from Mr Harvey did not necessarily mean that he was not entitled to a share of the property. The court also noted that the deceased’s parents had not demonstrated that they were in need of the property or that they had made significant contributions to the family. The court’s decision highlights the importance of considering the true intentions of the deceased and the contributions of the parties in making family provision orders.

Orders