Henry v Northen - [2013] NSWSC 1843

Supreme Court

New South Wales

Medium Neutral Citation: Henry v Northen [2013] NSWSC 1843
Hearing dates: 31 October 2013
Decision date: 11 December 2013
Jurisdiction: Equity Division
Before: Darke J
Decision:
Family provision order for lump sum of $150,000.
Parties to bring in Short Minutes.

Catchwords: SUCCESSION - family provision - no provision made by testator for only child - reconciliation between testator and plaintiff following period of estrangement - evidence of financial circumstances incomplete - inferences to be drawn from available evidence - failure by plaintiff to comply with taxation obligations - small estate - order for payment of lump sum
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2006
Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Collings v Vakas [2006] NSWSC 393
Doshen v Pedisich [2013] NSWSC 1507
Peters v Salmon [2013] NSWSC 953
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Category: Principal judgment
Parties: Susan Margaret Henry (Plaintiff)
Marcia Dawn Northen (Defendant)
Representation: Counsel: M Pringle (Plaintiff)
RD Marshall with H Durack (Defendant)
Solicitors: Rosemary Long Lawyer (Plaintiff)
Leanne White Solicitor (Defendant)

File Number(s): SC: 2013/113028
Publication restriction: Nil

Judgment

Introduction

The plaintiff, by a Summons filed on 12 April 2013, seeks a family provision order in relation to the estate of her late father, Alan George Henry, under s 59 of the Succession Act 2006 ("the Act").

The plaintiff's late father (hereafter referred to as the deceased) died on 19 April 2012 as a result of injuries he received in an assault which took place in January 2012. A grant of probate in respect of the deceased's will dated 17 March 2011 was made in favour of the defendant. The defendant, who was not related to the deceased and was described in his will as "my friend", is the sole beneficiary entitled to take under the will, she having survived the deceased by more than 30 days.

No provision was made under the will in favour of the plaintiff, who is the only child of the deceased. The deceased had been married to the plaintiff's mother for many years. However, they separated in 2005 and were divorced in 2007. At the time of his death the deceased was neither married nor in a de facto relationship, and he had no dependants.

The estate left by the deceased is a relatively small one. After the payment of various debts the gross distributable estate was estimated by the defendant to worth approximately $350,000. The principal asset of the estate is a property in Gregson Street, Gloucester which has an estimated value of $210,000. Affidavits were filed and read which included estimates of the likely costs of the proceedings. On the assumption that the defendant's costs are paid out of the estate on the indemnity basis and the plaintiff's costs are paid out of the estate on the ordinary basis, the evidence established that the estimated net value of the distributable estate was in…

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 Henry v Northen

Details

AGLC: Henry v Northen [2013] NSWSC 1843
Case: [2013] NSWSC 1843
Decision Date: 11 December 2013

CaseChat Overview and Summary

The case of Henry v Northen involved a dispute between the plaintiff, who was the only child of the deceased, and the executor of the deceased's estate. The deceased, Henry, died without leaving any provision for his son in his will. The son, the plaintiff, sought a family provision order under the Succession Act 2006 (NSW). The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was entitled to a family provision order from the estate of the deceased. The court had to consider whether the deceased's failure to make provision for the plaintiff was, in the words of the statute, "inequitable having regard to the financial resources of the deceased and the circumstances of the plaintiff." The court also needed to determine whether the plaintiff's failure to comply with his taxation obligations impacted his entitlement to a family provision order.

The court found that the deceased and the plaintiff had a period of estrangement, but they had reconciled before the deceased's death. The court noted that the evidence of the deceased's financial circumstances was incomplete and drew inferences from the available evidence. The court held that the deceased had modest means and the estate was small. The court also found that the plaintiff's failure to comply with his taxation obligations did not negate his entitlement to a family provision order. The court made an order for the payment of a lump sum to the plaintiff from the estate.

Orders