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Hulme v Graham

Hulme v Graham

Case [2010] NSWSC 1281 15 November 2010

Family Provision

Financial Circumstances

Adequate Provision

Discretion

Succession Law

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CITATION: Hulme v Graham [2010] NSWSC 1281

HEARING DATE(S): 1 November 2010
2 November 2010

JUDGMENT DATE :
15 November 2010

JUDGMENT OF: Hallen AsJ

DECISION: 1 Adequate provision for the proper maintenance and advancement in life was not made for the Plaintiff in the Will of the deceased. However, in the circumstances, I consider that a family provision order should not be made.
2 As requested by counsel for the parties during final submissions, I shall not make any orders, but shall allow the parties an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. If agreement cannot be reached, I shall hear submissions on costs.
3 I stand the matter over for the making of the orders that the parties seek.

CATCHWORDS: SUCCESSION - family provision order under Succession Act 2006 sought - claim by de facto partner of deceased - duration of de facto relationship is disputed by Defendant – no provision made for Plaintiff in Will - Following the deceased's death, Plaintiff receives benefits from trustee of fund of which deceased was a member - relevance of death benefit payment - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiaries - adequate provision not made by Will or on intestacy or both - whether order under Act should be made - as a matter of discretion no order should be made

LEGISLATION CITED: Conveyancing Act 1919
Family Provision Act 1982
Interpretation Act 1987
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux -Warnes v Hall [No 3] [2007] WASCA 235
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graham v Hulme; Hulme v Graham [2009] NSWSC 1167
Graham v Hulme; Hulme v Graham [2009] NSWSC 1264
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker (1957) 97 CLR 566
Marshall v Carruthers [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Re Estate of Sigg (dec'd) [2009] VSC 47
Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308
Samsley v Barnes [1990] NSWCA 161
Sellers v Scrivenger & Anor [2010] VSC 320
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES: Janet Ann Hulme (Plaintiff)
Courtney Michelle Graham as executor of the Estate of Jeffery James Graham (Defendant)

FILE NUMBER(S): SC 2009/290399

COUNSEL: Mr J O'Connor (Plaintiff)
Mr A Rogers (Defendant)

SOLICITORS: Guardian Lawyers…

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 Hulme v Graham

Details

AGLC: Hulme v Graham [2010] NSWSC 1281
Case: [2010] NSWSC 1281
Decision Date: 15 November 2010

CaseChat Overview and Summary

In Hulme v Graham, the Plaintiff, Hulme, sought a family provision order under the Succession Act 2006 against the Defendant, Graham, the estate of her deceased de facto partner. Hulme claimed that she had not been left with adequate provision for her proper maintenance and advancement despite being in a de facto relationship with the deceased for a significant period. Graham disputed the duration of the relationship and argued that Hulme had not been left without adequate provision. The case hinged on whether Hulme was entitled to a family provision order based on her financial circumstances and the death benefit payment she received from the deceased's fund.

The court had to determine the duration of the de facto relationship between Hulme and the deceased, assess the relevance of the death benefit payment, and evaluate Hulme's financial and material circumstances. It was necessary to consider whether Hulme had been left without adequate provision for her proper maintenance and advancement, especially in light of competing claims from other beneficiaries. The court also had to exercise its discretion under the Succession Act to decide whether an order should be made in favour of Hulme.

The court found that the duration of the de facto relationship was not in dispute for the purposes of the case. It determined that the death benefit payment was relevant in assessing Hulme's financial circumstances. However, it concluded that Hulme had not been left without adequate provision for her proper maintenance and advancement. The court also noted the competing claims of other beneficiaries and exercised its discretion not to make an order in favour of Hulme. The final orders were that no family provision order would be made in Hulme's favour.

Orders