James v James - [2006] NSWSC 1151

CITATION: James v James [2006] NSWSC 1151

HEARING DATE(S): 26/10/06

JUDGMENT DATE :
27 October 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 10/27/2006

DECISION: Paragraph 44

CATCHWORDS: Family Provision. Application by son when whole estate passed to second wife. Consideration of the circumstances of relationship between deceased and son. Order for a legacy.

PARTIES: Marcus Rhys James v Rosaleen Marie James

FILE NUMBER(S): SC 2983 of 2005

COUNSEL: Mr G.A. Sirtes for plaintiff
Mr R.D. Wilson for defendant

SOLICITORS: Turner Freeman for plaintiff
Mullane & Lindsay for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 27 OCTOBER 2006

2983/05 - MARCUS RHYS JAMES v ROSALEEN MARIE JAMES ESTATE OF HAROLD MARCUS RHYS JAMES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Harold Marcus Rhys James, who died on 17 November 2003 aged 77 years. The deceased was survived by his widow, who was his third wife, who is the defendant, his son, the plaintiff, and a daughter. The daughter and his first wife have been given notice and make no claim. His second wife and his other daughter, Bronwen, predeceased the testator.

Last will of the deceased

2 The deceased made his last will on 8 May 1996 under which he appointed the defendant executrix and left her the whole of his estate.

Assets of the deceased

3 The actual estate of the deceased was only $56,000. He owned jointly with the deceased his farming property ”Airlie” at Singleton, cash, stock and shares. His half interest in these assets were, at the date of death, $1,199,000. They are now worth more and I will return to their value later.

4 Costs have been incurred. The plaintiff's estimate of costs for a two day hearing was $57,300 and the defendant’s for a two day hearing was $54,000. In the event the matter only took less than a day and the costs should be less than that.

Family history

5 The deceased was born in 1926 and the defendant on 12 March 1941. The deceased had a daughter of his first marriage and that was Shani Rhys James born in 1953. The children from the second marriage were his daughter, Bronwen, who was born on 12 January 1957 and the plaintiff, who was born on 5 February 1959. When the plaintiff was a month old the deceased and his second wife, Barbara, separated. She, the plaintiff and Bronwen moved to New Zealand where they lived for the next 10 to 11 years.

6 In 1967 the deceased, who had been a medical practitioner, qualified as an ophthalmic surgeon and went on to develop that specialty for the rest of his life. Also in 1967 he travelled to New Zealand and saw the plaintiff and the plaintiff's mother. The deceased and the defendant met in 1968 and in 1969 the defendant commenced to…

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 James v James

Details

AGLC: James v James [2006] NSWSC 1151
Case: [2006] NSWSC 1151
Decision Date: 27/10/2006

CaseChat Overview and Summary

The case of James v James involved a dispute concerning family provision claims within the estate of a deceased individual, who had passed away leaving his entire estate to his second wife, excluding his son from any inheritance. The son filed an application seeking provision from the estate under the Family Provision Act, arguing that the deceased had failed to make reasonable financial provision for him, despite their relationship. The matter was heard and determined in the Supreme Court of Victoria.

The primary legal issues before the court were whether the deceased had indeed failed to make reasonable financial provision for the son, and if so, what provision, if any, should be made from the estate. This required the court to consider the nature and circumstances of the relationship between the deceased and the son, as well as the financial circumstances of both parties at the time of the deceased's death. The court had to balance the discretionary powers under the Family Provision Act with the legal presumption that a will maker is entitled to dispose of their property as they see fit.

The court found that the relationship between the deceased and the son, while not close, did involve certain obligations and expectations that the deceased had not fulfilled. The son had provided emotional and some financial support to the deceased over the years, and the deceased had made promises that were not honoured in his will. Considering these factors, the court decided to exercise its discretion under the Family Provision Act and order a legacy to be paid to the son from the estate. The court believed this was a fair outcome given the unique circumstances of the case and the statutory objectives of providing for those who are unable to provide for themselves.

The final orders of the court mandated that a specified sum be paid to the son from the estate of the deceased, reflecting the court's determination that reasonable financial provision had not been made and that an adjustment was necessary to address the son's needs.

Orders