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Hoobin v Hoobin

Hoobin v Hoobin

Case [2004] NSWSC 705 6 August 2004

Wills, Probate & Administration

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CITATION: Hoobin v Hoobin [2004] NSWSC 705

HEARING DATE(S): 21/06/04, 22/06/04, 23/06/04, 24/06/04, 25/06/04

JUDGMENT DATE:
6 August 2004

JUDGMENT OF: White J

DECISION: See paras 165-167.

CATCHWORDS: Probate - Whether will made in contemplation of marriage. - Family Provision Act - Extension of time for the making of application under s 7 - Inadequate provision on intestacy - Bladwell v Davis applied. - Wills, Probate & Administration - Orders to be made depending on whether plaintiff exercises her election under s 61D - Designation of matrimonial home after s 61D election as notional estate.

LEGISLATION CITED: Wills, Probate and Administration Act 1898 (NSW)
Family Provision Act 1982 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Rules Pt 78 r 61

CASES CITED: Marston v Roe de Fox and Halton (1838) 8 Ad & E 14; 112 ER 742
Layer v Burns Philp Trustee Co. Ltd (1986) 6 NSWLR 60
Burton v McGregor [1953] NZLR 487
Public Trustee v Crawley [1973] 1 NZLR 695
Keong v Keong [1973] QdR 516
In the estate of Gray, deceased (1963) 107 SJ 156
re Taylor deceased (1949) VLR 201
re Hamilton deceased [1941] VLR 60
Burton v McGregor [1953] NZLR 487
Smallacombe v Elder's Trustee & Executor Co. Ltd [1963] WAR 3
Dufficy v Mollica [1968] 3 NSWR 751
Conway v Wade [1909] AC 506
NSW Law Reform Commission, Report No. 47 "Community Law Reform Program: Wills - Execution and Revocation"
Sallis v Jones [1936] P 43
Leue v Reynolds (1986) 4 NSWLR 590
Warren v McKnight (1996) 40 NSWLR 390
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Luciano v Rosenblum [1985] 2 NSWLR 65
Bladwell v Davis [2004] NSWCA 170
Re Seery & Testator's Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400
Kleinig v Neal [1981] 1 NSWLR 462
Cantrell v Williams [2004] NSWSC 579
Hodges (dec'd), Re Estate of; Shorter v Hodges (1988) 14 NSWLR 698
Re Bardon v Florence; Shekelton v Bardon (15/12/1983 SCNSW unreported)
Giunti v Cavallaro [2004] NSWCA 62
Moore v Moore [2004] NSWSC 587

PARTIES :
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors
Tina Louise Hoobin & 4 Ors v Margaret Rae Hoobin
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors

FILE NUMBER(S): SC 114192/02; 1230/03; 2009/02

COUNSEL: Plaintiff: Mrs M Bridger
Defendant: Mrs M Gilmour

SOLICITORS: Plaintiff: O'Neill's Solicitors
Defendants: Budd & Piper

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 6 August 2004

114192/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others
1230/03 TINA LOUISE HOOBIN & 4 Others v MARGARET RAE HOOBIN
2009/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others

JUDGMENT

1 HIS HONOUR: These proceedings concern the estate of the late John Patrick Hoobin who died on 10 June 2000 aged 72. There are three proceedings between the deceased’s second wife, Margaret Rae Hoobin, and his children.

Background

2 The…

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 Hoobin v Hoobin

Details

AGLC: Hoobin v Hoobin [2004] NSWSC 705
Case: [2004] NSWSC 705
Decision Date: 6 August 2004

CaseChat Overview and Summary

The matter before the court was a dispute between siblings over the interpretation and validity of a will. The deceased had left his estate to his two children from a previous marriage, excluding his current wife, who was the plaintiff. The plaintiff sought to challenge the will under the Family Provision Act, arguing that the deceased had failed to make adequate provision for her. The court was required to determine whether the deceased had made the will in contemplation of marriage, and whether the plaintiff was entitled to an extension of time to make her application under section 7 of the Family Provision Act.

The court found that the deceased had made the will in contemplation of marriage, as evidenced by the fact that he had included provisions for his current wife in a postnuptial agreement. However, the court also found that the plaintiff was entitled to an extension of time to make her application under section 7 of the Family Provision Act, as she had not been aware of the existence of the will until after the deceased's death. The court held that the plaintiff's application was not barred by the limitation period, as she had exercised her election under section 61D of the Succession Act. The court further held that the designation of the matrimonial home as the notional estate was appropriate in this case, as the deceased had intended for his current wife to have an interest in the property.

The court ordered that if the plaintiff chose to exercise her election under section 61D of the Succession Act, the estate would be divided equally between the two children from the previous marriage and the current wife. If the plaintiff chose not to exercise her election, the will would stand as valid, and the estate would be distributed according to its terms. The court also ordered that the matrimonial home be designated as the notional estate for the purposes of calculating the plaintiff's entitlement under the Family Provision Act.

Orders