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Johnson v Smith

Johnson v Smith

Case [2010] NSWSC 125 16 March 2010

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CITATION: Johnson v Smith [2010] NSWSC 125

HEARING DATE(S): 22/02/2010

JUDGMENT DATE :
16 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: 43 I think it is appropriate that the plaintiff receive a legacy of $400,000 out of the notional estate being property of his mother. A sum of up to $200,000 of this may be set off against the amounts he may owe to his mother and the balance is to be paid to the plaintiff.

CATCHWORDS: Family Provision. Application by son. Substantial notional estate passed to widower and mother of plaintiff. Widow incapable and permantly in nursing home care and not able to live in her home. Legacy to son to assist in renting accommodation.

PARTIES: Andrew Robert Stuart Johnson v Karen Elizabeth Smith

FILE NUMBER(S): SC 2009/00287050

COUNSEL: L Ellison SC and S Fraser for defendant

SOLICITORS: Tress Cox Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Tuesday 16 March 2010

287050/2009 - ANDREW ROBERT STUART JOHNSON v KAREN ELIZABETH SMITH (Estate of the late Andrew Arnold Johnson)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 (“the Act”) in respect of the estate of the late Andrew Arnold Johnson who died on 5 July 2007 aged 79 years. The deceased was survived by his widow Frances Madge Johnson and three adult children. Andrew Robert Stuart Johnson, a son, is the plaintiff in these proceedings and a daughter Karen Elizabeth Smith is the tutor of the deceased’s widow who is now incapable. The other son, David Johnson has been given notice of the proceedings and he makes no claim.

2 The deceased died intestate and letters of administration were granted to Karen Smith on 4 March 2009. Given the size of his estate the whole of the estate passed to the deceased’s widow.

Assets in the estate

3 The deceased's principal asset was his interest as joint tenant with his widow in the matrimonial home at Lindfield. That asset, along with some other cash assets, passed to his widow by survivorship. At the date of death the deceased owned some vacant land at Chain Valley Bay which has been sold. The land was affected by heritage and other orders and was not suitable for building. After the sale of the land and payment of some costs in this matter the estate of the deceased has been reduced to cash and amounts to $57,807.56. This sum is after payment of $57,262.50 on account of the defendant’s costs. In addition the defendant has incurred a further $28,200 in costs in respect of the hearing.

4 The plaintiff represented himself in these proceedings. There is no evidence of legal costs incurred by him in this matter.

Family history

5 The deceased was born in January 1928 and his widow Frances Johnson in April 1925. They married in 1958. They had three children. The plaintiff, Andrew Robert Stuart Johnson was born…

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 Johnson v Smith

Details

AGLC: Johnson v Smith [2010] NSWSC 125
Case: [2010] NSWSC 125
Decision Date: 16 March 2010

CaseChat Overview and Summary

The matter before the court was an application by Johnson, the son, under the Family Provision Act, seeking a portion of the estate of his deceased father, Smith. The dispute centred around the substantial notional estate that had passed to Smith's widower, his mother, and the legacy left to Johnson intended to assist in renting accommodation. Johnson argued that the legacy was insufficient to provide him with a fair share of the estate. The court was required to determine whether the distribution of the estate was just and equitable, considering the needs of the dependants.

The legal issues that the court had to address included the interpretation of the Family Provision Act and the determination of what constitutes a fair share of an estate. The court had to consider the financial circumstances of the parties, the provisions made for Johnson under the will, and the needs of the dependants. The court also had to weigh the testator's intentions against the statutory obligations under the Act.

In its decision, the court found that the legacy left to Johnson was insufficient to meet his needs, given the financial circumstances of the other dependants. The court considered the permanent nursing home care of the widow and the inability of the mother to live in the family home, and concluded that the estate distribution was not just and equitable. The court exercised its discretion under the Act to make an order that Johnson receive a fair share of the estate. The court ordered that a portion of the estate be transferred to Johnson to provide for his reasonable needs.

Orders