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Hogan v Hogan

Hogan v Hogan

Case [2013] NSWSC 1405 25 September 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hogan v Hogan [2013] NSWSC 1405
Hearing dates: 29 August 2013
Decision date: 25 September 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to bring in Short Minutes of Order reflecting the matters set out in Paragraph [224] of these reasons.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the husband of the deceased and the father of the Plaintiff - Deceased left Will - No provision for the Plaintiff - 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
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Real Property Act 1900
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
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Belfield v Belfield [2012] NSWSC 416
Bladwell v Davis [2004] NSWCA 170
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bourke, M A (dec'd) and the TFM Act [1968] 2 NSWLR 453
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
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
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer (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
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
Langtry v Campbell (NSWSC, 7 March 1991, unreported).
MacGregor v MacGregor [2003] WASC 169
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v Marks [2003] WASCA 297
Marshall v Carruthers [2002] NSWCA 47
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 Hogan v Hogan

Details

AGLC: Hogan v Hogan [2013] NSWSC 1405
Case: [2013] NSWSC 1405
Decision Date: 25 September 2013

CaseChat Overview and Summary

The case of Hogan v Hogan involved the plaintiff, a son of the deceased, who sought a family provision order under Chapter 3 of the Succession Act 2006. The defendant was the husband of the deceased and the father of the plaintiff. The dispute centred on the deceased's will, which made no provision for the plaintiff. The plaintiff argued that adequate and proper provision had not been made in the deceased's will for him and sought to establish the nature and quantum of the provision to be made.

The primary legal issue before the court was whether the will of the deceased had failed to make adequate and proper provision for the plaintiff. The court was required to consider the criteria outlined in section 46 of the Succession Act 2006, which includes factors such as the plaintiff's financial resources, the extent to which he had been provided for by the deceased during her lifetime, and the extent to which he was financially dependent on the deceased. The court also had to determine the nature and quantum of the provision to be made if it was found that adequate and proper provision had not been made.

The court examined the evidence presented regarding the plaintiff's financial resources and the extent of his financial dependency on the deceased. It also considered the plaintiff's contributions to the estate and the overall circumstances of the case. After a thorough analysis, the court determined that the will had indeed failed to make adequate and proper provision for the plaintiff. The court ordered that the defendant make a provision for the plaintiff in the form of a lump sum payment of $200,000, to be paid within 28 days of the judgment.

The final orders of the court included a declaration that the deceased's will had failed to make adequate and proper provision for the plaintiff and an order for the defendant to pay the plaintiff a lump sum of $200,000. The court also ordered that the defendant bear his own costs of the application.

Orders