Hastings v Hastings - [2008] NSWSC 1310

CITATION: Hastings v Hastings [2008] NSWSC 1310

HEARING DATE(S): 04/12/08

JUDGMENT DATE :
9 December 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Order that the summons be dismissed and that paragraph 3 of the cross-summons be dismissed; 2. order that the plaintiff pay the defendant’s costs of the proceedings; 3. exhibits may be returned after 28 days.

CATCHWORDS: FAMILY PROVISION AND MAINTENANCE – claim by adult son – criminal history – little contact with testatrix – impecuniosity due to forfeiture of assets following criminal conviction – brother’s competing claim – held plaintiff not entitled to order for provision

LEGISLATION CITED: Family Provision Act 1982 (NSW)

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Re Hatte [1943] SR (Qld) 1
In re The Will of F. B. Gilbert (1946) 46 SR (NSW) 318
Price v Roberts (23 September 1992, Court of Appeal NSW, unreported)
Hoadley v Hoadley (17 February 1987, Young J, unreported)

PARTIES: Phillip Hastings
v
John Hastings

FILE NUMBER(S): SC 2991/08

COUNSEL: Plaintiff: K Morrisey
Defendant: L Ellison SC

SOLICITORS: Plaintiff: Coode & Corry, Solicitors
Defendant: Thomas McDarra & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 9 December 2008

2991/08 Phillip Hastings v John Hastings

JUDGMENT

1 HIS HONOUR: The plaintiff is the younger son of Violet Edwina Hastings who died on 29 February 2008. He seeks an order for provision out of her estate pursuant to s 7 of the Family Provision Act 1982 (NSW). Mrs Hastings was survived by two sons: John (the defendant) and Phillip (the plaintiff). Her estate was initially valued for probate purposes at $643,789. The principal asset is a house at 4 Rayner Avenue, Narraweena. Market appraisals of that property range between $610,000 and $760,000. The average is in the order of $685,000.

2 T Counsel for the plaintiff submitted that he should receive an order for provision calculated as follows:

i) To pay off his car loan and credit card debts, ~ $35,000

ii) To assist with retraining, and/or to help establish

a small stone importing business, ~ $40,000

iii) To assist with medical treatment (orthopaedic

condition) ~ $20,000

iv) Accommodation ~

v) As a capital fund to meet unexpected contingencies

$25,000

Total

$140,000

3 The deceased had three sons: the defendant, now aged 61; Robert, who died on 29 July 2004; and the plaintiff, now aged 57. By her last will made on 18 February 2005, she appointed the defendant the executor and gave him all her estate. In earlier wills made on 16 August 1993 and 7 September 1998, she divided her estate (or in the case of the 1993 will her residuary estate) between the defendant and Robert equally. In none of her wills did she provide for the plaintiff.

4 The principal question in this case is whether the plaintiff’s criminal conduct and long absences disentitle him from being considered…

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.

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Details

Case: [2008] NSWSC 1310
Decision Date: 9 December 2008

CaseChat Overview and Summary

The case of Hastings v Hastings involved a claim by the adult son of the deceased, who sought provision from his mother's estate under the Family Provision Act. The son had a history of criminal activity and limited contact with his mother before her death. His financial circumstances were dire, having lost all his assets due to criminal convictions. His brother also made a claim for provision from the estate. The court was tasked with determining whether the son was entitled to an order for provision, considering his relationship with the testatrix and his financial situation.

The primary legal issue before the court was whether the son's claim for provision should be upheld, given his criminal history and lack of meaningful contact with the testatrix. The court also needed to balance the son's impecunious state against the competing claim of his brother. The court considered whether the son's criminal history and strained relationship with the testatrix outweighed his financial need, and whether his brother's claim was more compelling.

The court found that the son's criminal history and minimal contact with the testatrix were significant factors that outweighed his financial need. The court determined that the son's impecuniosity, while unfortunate, did not sufficiently justify an order for provision from the estate. The court was also influenced by the competing claim of the son's brother, who had a closer relationship with the testatrix and whose financial circumstances did not appear as dire. Consequently, the court ruled that the son was not entitled to an order for provision from his mother's estate.

As a result of the court's decision, the son's claim for provision was dismissed. The estate was not required to provide any financial support to him. The court's decision recognised the importance of the relationship between the testatrix and her son, but ultimately found that the son's criminal history and lack of contact were decisive factors in denying his claim.

Orders