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Hedman v Frazer

Hedman v Frazer

Case [2013] NSWSC 1915 19 December 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hedman v Frazer; Egan v Frazer [2013] NSWSC 1915
Hearing dates: 18, 19 November 2013
Decision date: 19 December 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct parties to bring in Short Minutes of Order reflecting these reasons. Stand over the proceedings to make orders and to hear any argument about the costs of the proceedings.

Catchwords: SUCCESSION - FAMILY PROVISION -One Plaintiff, a widow of the deceased, and the other Plaintiff a child of the deceased by a prior relationship - Each applies for a family provision order under Chapter 3 of the Succession Act 2006 - Whether adequate and proper provision not made in Will of the deceased for either Plaintiff and if so the nature and quantum of the provision to be made for her
Legislation Cited: Administration and Probate Act 1958 (Vic)
Civil Procedure Rules 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Anslow v Journeaux [2009] VSC 250
Austin a Bankrupt, Re [1982] 2 NZLR 524
Bartlett v Coomber [2008] NSWCA 100
Belfield v Belfield [2012] NSWSCA 416; (2012) 83 NSWLR 189
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Fung v Ye [2007] NSWCA 115
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kelly and Kelly (No.2) (1981) 7 Fam LR 762
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
Lloyd-Williams v Mayfield [2005] NSWCA 189
Macgregor v Macgregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves…

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 Hedman v Frazer

Details

AGLC: Hedman v Frazer [2013] NSWSC 1915
Case: [2013] NSWSC 1915
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the case of Hedman v Frazer, the plaintiff, who was the widow of the deceased, and the other plaintiff, a child of the deceased from a prior relationship, both applied for a family provision order under Chapter 3 of the Succession Act 2006. The dispute centred on whether the deceased had made adequate and proper provision for either of the plaintiffs in his will. If so, the court needed to determine the nature and quantum of the provision to be made for each plaintiff.

The legal issues before the court were whether the will of the deceased provided adequate and proper provision for the plaintiffs, and if not, what the appropriate remedy under the Succession Act 2006 would be. The court had to consider the provisions of the will and the specific needs and circumstances of each plaintiff. The widow argued that she had been left out of the will and should be provided for, while the child from the prior relationship contended that the provision made for them in the will was insufficient.

The court examined the will and the circumstances of the parties. It found that the will did not make adequate and proper provision for either plaintiff. The court considered the financial circumstances of the deceased and the needs of each plaintiff. The court ultimately determined that the widow should receive a family provision order for a sum that represented reasonable provision for her maintenance, education, and medical care. The child from the prior relationship was awarded a family provision order that reflected their needs and the deceased's financial situation.

The court ordered that the deceased's estate be distributed according to the terms of the will, with additional sums to be paid to the widow and the child from the prior relationship. The exact amounts were determined based on the specific needs and circumstances of each plaintiff, as well as the overall financial position of the estate.

Orders