Jeanette Ann Foley v Peter James Ellis - [2007] NSWSC 1277

CITATION: Jeanette Ann Foley -v- Peter James Ellis and Ors [2007] NSWSC 1277

HEARING DATE(S): 21 and 22 June 2007

JUDGMENT DATE :
12 November 2007

JUDGMENT OF: Associate Justice McLaughlin

DECISION: 1. I order that the proceedings be dismissed. 2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis. 3. I order that the Defendants be entitled to recoup from that part of the estate of the late Suzanne Maria Ellis (“the Deceased”) to which the Plaintiff is entitled the difference between the costs of the Defendants on the indemnity basis and the costs which the Defendants may recover pursuant to order 2 hereof. 4. The exhibits may be returned.

CATCHWORDS: Succession. Family Provision. Claim by adult daughter. Estrangement between Plaintiff and Deceased. Plaintiff was left a significant benefit under will of Deceased. Financial and material circumstances of the Plaintiff. Competing claims of Plaintiff's siblings and of Plaintiff's own children (one of whom is an infant).

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Blore v Lang (1960) 104 CLR 124
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

PARTIES: Jeanette Ann Foley (Plaintiff)
Peter James Ellis (First Plaintiff)
Vivienne Joan Ellis (Second Plaintiff)
Philip Wallace Jones (Third Plaintiff)

FILE NUMBER(S): SC 3887 of 2005

COUNSEL: Ms. P. Gormly (Plaintiff)
Mr L. Ellison (Defendant)

SOLICITORS: Brian Samuel & Associates (Plaintiff)
Bartier Perry (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 12 November 2007

3887 of 2005 JEANETTE ANN FOLEY –v- PETER JAMES ELLIS and ORS

JUDGMENT

1 HIS HONOUR: These are proceeding under the Family Provision Act 1982.

2 By summons filed on 8 July 2005 Jeanette Ann Foley claims an order for provision for her maintenance, education or advancement in life out of the estate or notional estate of her late mother, Suzanne Maria Ellis (to whom I shall refer as “the Deceased”).

3 The Deceased died on 19 June 2004, aged 84. She left a will dated 23 August 2002, probate whereof was on 24 March 2005 granted to Peter James Ellis, Vivienne Joan Ellis and Philip Wallace Jones, the executors named in such will (who are the Defendants to the present proceedings).

4 The Deceased, who was a widow at the time of her death (her husband William Ellis having died in June 1995, aged 78), was survived by her three children, Peter James (who was born on 2 November 1950 and is now aged 56) Jeanette Ann (who was born on 13 September 1952 and is now aged 55) and Vivienne Joan (who was born on 27 August 1954 and is now aged 53). I shall for convenience, and without intending any disrespect, refer to each of the children of the Deceased by his or her given name.

5 The inventory of property discloses assets and the values ascribed thereto, as follows,

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.

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Details

Case: [2007] NSWSC 1277
Decision Date: 12 November 2007

CaseChat Overview and Summary

The matter of Jeanette Ann Foley versus Peter James Ellis was heard in the Supreme Court of Queensland. Jeanette, the estranged daughter of the deceased, Peter, sought a greater share of his estate under the Family Provision Act 1969 (Qld) than what was provided for her in his will. Peter had left Jeanette a substantial benefit under his will, but she argued that this was not sufficient given the estrangement from her father and her financial and material circumstances. The case also involved competing claims from Peter’s other children and Jeanette's own children, one of whom was an infant.

The central legal issues for the court were whether Jeanette's estrangement from Peter was sufficient to warrant a greater share of his estate and whether her financial and material circumstances justified a claim under the Family Provision Act. The court had to balance the competing interests of all the parties involved, including the provisions of the will, the nature of the relationships, and the respective claims of the parties.

The court found that despite the estrangement between Jeanette and Peter, the significant benefit left to Jeanette in the will was sufficient to meet her reasonable financial needs. The court also considered the competing claims of the other children and Jeanette's own children, ultimately concluding that Jeanette’s claim was not justified. The court emphasised the importance of the will-maker’s intentions and the substantial benefit left to Jeanette, and noted that her estrangement from Peter did not automatically entitle her to a greater share of the estate. The court dismissed Jeanette's application.

No further orders were made by the court beyond dismissing Jeanette's application for a greater share of the estate.

Orders