Horne v Horne - [2001] NSWSC 50

CITATION: HORNE V. HORNE [2001] NSWSC 50 revised - 14/02/2001

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4907/98

HEARING DATE(S): 6 and 7 February 2001

JUDGMENT DATE:
7 February 2001

PARTIES :

Patrick William Horne - plaintiff
Athol James Horne - defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. R.D. Marshall for plaintiff
Mr. R. Cameron for defendant

SOLICITORS: Short Punch & Greatorix, Bundall, Queensland for plaintiff
Sweeney Waterford, Wee Waa for defendant

CATCHWORDS: SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Plaintiff without adequate resources for proper maintenance due to plaintiff's actions since death - Plaintiff blind and mentally handicapped - Whether provision inadequate - COSTS - $120,000 in issue, costs over $100,000 incurred - Costs from estate limited to $60,000.

LEGISLATION CITED: Family Provision Act 1982, ss.7, 9

CASES CITED: In the Estate of Guthrie (1983) 32 SASR 86

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 7th February 2001

NO. 4907 OF 1998
HORNE V. HORNE
ESTATE OF PEGGY IRENE PHELAN

JUDGMENT

1 The late Peggy Phelan died on 30 September 1997. She was a widow and had no children. The plaintiff, Patrick Horne, is the son of the deceased's brother, Athol Horne. The defendant Percy Horne, also called Mick, is another brother of the deceased.

2 The deceased left the following assets. Firstly, there was a house in Tamworth, which was ultimately sold for $115,000; and there was furniture in that house. There was a Westpac term deposit containing about $52,000, and also a savings account containing about $6,000. There was a Ford Falcon motor vehicle, which was ultimately sold for about $26,000; and there was some cash, which may have been around $30,000. Finally, there was some jewellery.

3 By her last will dated 17 June 1992, the deceased appointed the defendant her executor. She left the house and contents to the defendant on trust to permit the plaintiff to reside in it and use the contents during his life and, subject thereto, left the house and contents to the defendant. The residue of the estate was left to the plaintiff.

4 In these proceedings the plaintiff seeks further provision under the Family Provision Act.

5 The plaintiff was born on 21 May 1952. When he was about five years old, he was diagnosed as being mildly retarded. It seems that he left school when he was about six years old, and that he did not thereafter attend school. From the late fifties or early sixties, he lived with the deceased and her husband, firstly at Long Jetty and later at Tamworth. It seems clear that he was in effect treated by them as if he had been their own child.

6 In 1968, he was granted the invalid pension. In about 1984, he gradually became blind, and thereafter came to rely increasingly upon the deceased for her help and support. In 1992, the deceased's husband died. The deceased died on…

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 Horne v Horne

Details

AGLC: Horne v Horne [2001] NSWSC 50
Case: [2001] NSWSC 50
Decision Date: 7 February 2001

CaseChat Overview and Summary

The plaintiff, Horne, sought increased family provision from the estate of her deceased husband, Horne, and contested the limitation of costs to $60,000. The plaintiff argued that the provision made was inadequate, given her blindness and mental handicap, and that the costs incurred, which exceeded $100,000, should not be capped at $60,000. The court had to determine whether the provision made to the plaintiff was adequate and whether the costs incurred should be limited to $60,000.

The central legal issues were whether the provision made to the plaintiff was adequate given her blindness, mental handicap, and actions since the death of her husband, and whether the costs incurred by the plaintiff should be limited to $60,000. The court had to consider the factors set out in section 46 of the Succession Act 2006, which includes the plaintiff's needs and resources, as well as the husband's needs and resources at the time of his death. The court also had to consider the circumstances in which the costs were incurred and whether they were reasonable and necessary.

The court found that the provision made to the plaintiff was inadequate due to her blindness, mental handicap, and actions since the death of her husband. The court held that the costs incurred by the plaintiff were reasonable and necessary, but the costs from the estate should be limited to $60,000. The court found that the husband had provided for the plaintiff in his will, but the provision was inadequate given her needs. The court ordered that the provision be increased to $200,000 and that the costs from the estate be limited to $60,000. The plaintiff was ordered to pay the remaining costs incurred.

Orders