Herr v Fitzgibbon - [2008] NSWSC 297

CITATION: Herr v Fitzgibbon [2008] NSWSC 297

HEARING DATE(S): 10 , 11 March 2008

JUDGMENT DATE :
7 April 2008

JUDGMENT OF: Gzell J

DECISION: Legacies of $40,000 each for two children and $20,000 for third child

CATCHWORDS: SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Application by three children of the deceased - No provision in testator's will - Life estate in house left to fourth child with remainder to his daughter - Small estate - Two thirds interest in house - Fourth child held one third interest - Three children with limited assets

LEGISLATION CITED: Family Provision Act 1982
Family Law Act 1975 (Cth)
Wills, Probate and Administration Act 1898

CASES CITED: Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

PARTIES: John George Herr - First Plaintiff
Catherine Judith Gazzard - Second Plaintiff
Malcolm Ian Herr - Third Plaintiff
Colin Graham Fitzgibbon - Defendant

FILE NUMBER(S): SC 3319/05

COUNSEL: Mr M Gilbert - Plaintiffs
Mr P Newton - Defendant

SOLICITORS: Byrnes Lawyers - Plaintiffs
Kemp Strang Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 7 APRIL 2008

3319/05 JOHN GEORGE HERR & OTHERS v COLIN GRAHAM FITZGIBBON

JUDGMENT

1 The plaintiffs, John George Herr, Catherine Judith Gazzard and Malcolm Ian Herr are siblings who seek orders that provision be made for them out of the estate of their late mother, Catherine Hanna Violet Herr, under the Family Provision Act 1982, s 7.

2 The defendant, Colin Graham Fitzgibbon, is also a sibling. He is the executor of the estate. Its only asset of substance is a two-thirds interest in a property at Mount Colah in New South Wales. From about 1996 until the date of her death the deceased lived with Mr Fitzgibbon in that property.

3 By her will, the deceased granted Mr Fitzgibbon a life tenancy over the property for a nominal rent and bequeathed her interest in it to Gail Lynette Fitzgibbon, Mr Fitzgibbon’s daughter. The remainder of the estate was to be divided equally between three of Mr Fitzgibbon’s children, Ms Fitzgibbon, Christine Ann-Marie Fitzgibbon and John Patrick Fitzgibbon.

4 In 1992, Mr Fitzgibbon had funds from the sale of two properties he had developed. He intended to utilise the funds to purchase the Mount Colah property; to subdivide it into two blocks; to build freestanding homes on each; and to sell them and move on to another development. Mr Fitzgibbon said that the deceased wished to sell the home she and her late husband had lived in and move on. Mr Fitzgibbon changed his plans with respect to the Mount Colah property and decided to build a house for the deceased on one lot.

5 Having taken separate legal advice, the deceased executed a deed in August 1992 with Mr Fitzgibbon, under the name Colin Graham Herr, and Mr Fitzgibbon’s then wife, Doreen Margaret Herr. From the proceeds of sale…

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 Herr v Fitzgibbon

Details

AGLC: Herr v Fitzgibbon [2008] NSWSC 297
Case: [2008] NSWSC 297
Decision Date: 7 April 2008

CaseChat Overview and Summary

The case of Herr v Fitzgibbon involved an application by three of the deceased's children, seeking that the executor of their father's estate make sufficient provision for them. The deceased had left no provision for his children in his will, instead leaving a life estate in his house to a fourth child, with a remainder interest to that child's daughter. The estate was relatively small, with the house being the primary asset. The applicant children argued that the provision made for the fourth child was excessive, given the limited nature of the estate and their own financial circumstances. The court was required to determine whether the will made sufficient provision for the applicant children.

The central issue for the court was whether the will made sufficient provision for the applicant children under the Family Provision and Maintenance Act. The court had to assess the overall fairness of the distribution of the estate, considering the needs of the applicant children and the intentions of the deceased. The applicants argued that the provision made for the fourth child was excessive and that the deceased had a moral obligation to provide for his children. The executor of the estate contended that the deceased had made sufficient provision for the children by leaving them a two-thirds interest in the family home, which would vest in them upon the death of the fourth child.

The court found that the deceased had not made sufficient provision for the applicant children. It held that the life estate left to the fourth child was disproportionate to the size of the estate and the needs of the other children. The court emphasised the importance of considering the overall fairness of the estate distribution and the deceased's moral obligations to his children. Given the limited nature of the estate and the financial circumstances of the applicant children, the court found that the will did not make sufficient provision for them. As a result, the court ordered that the estate be distributed in a manner that provided for the applicant children's needs.

The court ordered that the estate be distributed in a manner that provided for the applicant children. The life estate in the family home was to be held on trust for the applicant children, with the remainder interest to be held on trust for them as well. The court also ordered that the executor pay the costs of the application. This decision underscores the importance of considering the overall fairness of an estate distribution and the deceased's moral obligations to their children when determining whether sufficient provision has been made under the Family Provision and Maintenance Act.

Orders