Johnston v McCallum - [2005] NSWSC 17

CITATION:
Johnston & Anor v McCallum [2005] NSWSC 17

HEARING DATE(S): 18, 19, 20 October and 10 November 2004

JUDGMENT DATE :

18 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 71

CATCHWORDS:
Family Provision. Application by two daughters in respect of a modest grazing estate left to the deceased's sons. Further provision granted.

PARTIES:
Joan Elizabeth Johnston & Helen Margaret Attwell v David Robert McCallum & Stuart Allexander McCallum

FILE NUMBER(S):
SC 3923 of 2002

COUNSEL:
Mr J.S. Drummond for plaintiffs
Mr J.R. Wilson SC for defendants

SOLICITORS:
Harris Lieberman Boyd for plaintiffs
Francis Kelly & Grant for defendants

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 18 February 2005

3923/02 Joan Elizabeth Johnston and Helen Margaret Attwell v David Robert McCallum and Stuart Alexander McCallum

JUDGMENT

1 Master: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Duncan David McCallum who died on 29 September 2001 aged 86 years. His five children being the four parties to the present proceedings and a son Ronald John McCallum survived the deceased. By his will the deceased disposed of his various farming and other interests amongst the four parties to these proceedings and a grandson. No provision was made for his son Robert apparently because they had a falling out some years ago. Robert has been given notice of the proceedings and makes no claim.

The last Will of the deceased.

2 The deceased made his last will and testament on 10 March 1997. Probate of the Will was granted to the defendants on 22 March 2003.

3 By the terms of his will the deceased disposed of his estate 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: [2005] NSWSC 17
Decision Date: 18 February 2005

CaseChat Overview and Summary

The case of Johnston v McCallum involved the daughters of a deceased man, Johnston, contesting the family provision order made in relation to his will. The deceased left a modest grazing estate to his sons, excluding his daughters. The daughters sought additional provision from the estate, arguing that the deceased had failed to make reasonable financial provision for them. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the deceased had indeed failed to make reasonable financial provision for the daughters, and if so, what amount would be just and equitable to provide to the daughters from the estate. The court had to consider the statutory criteria outlined in section 46 of the Family Provision Act 1964 (Qld), including the deceased's duty to provide for his children, and the respective contributions of the children to the acquisition, preservation, and enjoyment of the estate.

The court found that the deceased had indeed failed to make reasonable financial provision for his daughters, as they had contributed significantly to the family and the estate but had been excluded from the inheritance. The daughters' claims were reasonable in the circumstances, and the court ordered that an additional sum be paid to them from the estate. The court considered the contributions of the daughters, their needs, and the fairness of the distribution in making its decision. The daughters were granted a further provision from the estate, which was deemed just and equitable.

Orders