Hunt v Delaney - [2005] NSWSC 764

CITATION:
Hunt v Delaney [2005] NSWSC 764

HEARING DATE(S): 28/07/2005

JUDGMENT DATE :

29 July 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice Macready at 1

DECISION:
Paragraph 65

CATCHWORDS:
Family Provision. Application under the Family Provision Act by two children of deceased. Children abandoned by mother at a young age and estate left to charities. Orders for provision by way of legacy.

PARTIES:
Alfred William Hunt and Pricilla Hunt v Michael Joseph Delaney

FILE NUMBER(S):
SC 5746/2004

COUNSEL:
Mr J.A. Trebeck for plaintiff
Ms. J. Steele for defendant

SOLICITORS:
Maurice Buckley C T Poole & Son for plaintiff
Hall Legal for defendant

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 29 JULY 2005

57461/04 - ALFRED WILLIAM HUNT & ANOR V MICHAEL JOSEPH DELANEY - ESTATE OF NANCYE DOREEN HUNT AKA NANCY DOREEN HUNT

JUDGMENT:

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Nancye Doreen Hunt, who died on 6 March 2004. The deceased was survived by her three children, two of whom are the plaintiffs in this action.

2 The third child has been given notice and she makes no claim on the estate.

WILL OF THE DECEASED

3 The Defendant, a solicitor who had acted for the deceased from time to time, was appointed executor under the deceased’s last will dated 27 September 1991.

4 The deceased left her estate equally between the St Vincent de Paul Society and the Royal Blind Society. She made no provision for the plaintiffs and instead directed that her body be cremated privately and that the family was not to be notified of her death.

ASSETS IN THE ESTATE

5 The Estate has been reduced to cash and amounts to $499,545.23. Some defendants costs have been paid and the remaining costs and fees to be paid for the defendant amount to $31,673.70. The plaintiff’s costs are estimated at $37,128.98. This leaves a net distributable estate of some $430,742.55.

FAMILY HISTORY

6 The plaintiff, Alfred Hunt, was born on 18 February 1953 and his sister, Priscilla, was born 10 November 1954. Their sister, Wendy Monica Hunt, (otherwise known as Wendy Richards,) was born on 22 May 1956. By November 1956 the children had been placed under the New Zealand Department of Education Child Welfare Division for the purposes of preventative supervision. It was in 1957 that the parents of the children separated and the deceased apparently obtained custody. Not long thereafter the children were sent to live with their father’s sister for some three months. They eventually came back and they were returned to the father. At this stage the deceased, the children’s mother, apparently gave back custody to the father.

7 They lived with the father for sometime and on 9 January 1963 a complaint was made in the Local Magistrate’s Court that the children were neglected and were living in an environment detrimental to their wellbeing. 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 Hunt v Delaney

Details

AGLC: Hunt v Delaney [2005] NSWSC 764
Case: [2005] NSWSC 764
Decision Date: 29 July 2005

CaseChat Overview and Summary

The case of Hunt v Delaney involved two children who sought provision from the estate of their deceased father under the Family Provision Act. The deceased left his estate to various charities, having been abandoned by their mother at a young age. The children applied for the court to make orders for their provision by way of a legacy. The central legal issues revolved around the interpretation of the Family Provision Act and whether the children were entitled to seek provision under the statute, despite the deceased's decision to leave his estate to charities.

The court had to determine if the children had been "properly provided for" by the deceased, and if not, whether it was just and equitable to make orders for their provision. The court examined the circumstances of the children's abandonment and the deceased's decision to leave the estate to charities, considering the principles of the Family Provision Act. The court also assessed the evidence presented by the children to establish their need and the deceased's capacity to provide for them.

In its judgment, the court found that the children had not been properly provided for by the deceased's estate plan, given the unique circumstances of their abandonment and the deceased's decision to leave the estate to charities. The court held that it was just and equitable to make orders for the children's provision, balancing the deceased's right to dispose of his estate as he saw fit with the children's need for support. The court ordered that the children were to receive a legacy from the estate, ensuring they were properly provided for despite the deceased's wishes.

Orders