Hinderry v Hinderry

Case [2016] NSWSC 780


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Hinderry v Hinderry [2016] NSWSC 780
Hearing dates:18, 19 and 25 May 2016
Date of orders: 20 June 2016
Decision date: 20 June 2016
Jurisdiction:Equity
Before: Hallen J
Decision:

Orders that the Plaintiff’s Summons be dismissed.

 Orders that any argument as to costs of the proceeding and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the adopted son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are executors appointed under the Will to whom Probate granted - Provision for the Plaintiff made in the Will – Estate not small - Only one competing financial claimant although three beneficiaries, other than Plaintiff, named in the Will – Conduct of the Plaintiff towards the deceased for some years prior to death involving physical and verbal assaults and breaches of AVOs obtained by the deceased against him - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Probate Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Baird v Harris [2015] NSWSC 803
Bartlett v Coomber [2008] NSWCA 100
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Burke v Burke [2015] NSWCA 195
Cairns v Cairns [2006] NSWSC 364
Chapple v Wilcox [2014] NSWCA 392 at [25] – [26]
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Collins v McGain [2003] NSWCA 190
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; (2009) 2 ASTLR 89
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Fulton v Fulton [2014] NSWSC 619
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep)
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge…

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Hinderry v Hinderry [2016] NSWSC 780
Case
[2016] NSWSC 780
Decision Date

CaseChat Overview and Summary

The case of Hinderry v Hinderry involved the Plaintiff, an adopted son of the deceased, who sought a family provision order under Chapter 3 of the Succession Act 2006. The Defendants, executors appointed under the Will, had been granted Probate. The Will contained a provision for the Plaintiff, although the estate was not categorised as small. Besides the Plaintiff, there were three other beneficiaries named in the Will, with only one of these being a competing financial claimant. The Plaintiff's conduct towards the deceased in the years leading up to his death was marked by physical and verbal assaults, as well as breaches of Apprehended Violence Orders (AVOs) obtained by the deceased against him. The court was tasked with determining whether the Will had made adequate and proper provision for the Plaintiff, and if so, what the nature and quantum of any provision should be.

The legal issues before the court centred on the interpretation and application of the family provision provisions within the Succession Act 2006. Key considerations included the nature and extent of the Plaintiff's contributions to the deceased's estate, the fairness of the provisions made in the Will, and the relevance of the Plaintiff's conduct towards the deceased. The court had to weigh these factors against the express wishes of the deceased as set out in the Will, and decide whether the Will reflected a fair and reasonable outcome for the Plaintiff given the totality of circumstances.

In reaching its decision, the court examined the statutory criteria outlined in the Succession Act 2006, particularly s 46(2) and (3). The court found that the Plaintiff's conduct towards the deceased was a significant factor in assessing the fairness of the provisions made in the Will. Despite the Plaintiff's status as an adopted son, the court held that the Will adequately provided for him, taking into account his conduct and the provisions made to other beneficiaries. Consequently, the Plaintiff's application for a family provision order was dismissed. The court concluded that the Will reflected the reasonable financial needs of the Plaintiff, considering both his contributions and his actions towards the deceased. The court did not deem it necessary to alter the provisions of the Will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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