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Karpin v Gough

Karpin v Gough

Case [2022] NSWSC 471 21 April 2022

Eligibility for Family Provision

Adequate Provision

Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Karpin v Gough [2022] NSWSC 471
Hearing dates: 30 August – 2 September 2021
Date of orders: 21 April 2022
Decision date: 21 April 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the plaintiff’s claim.
2.   Order that the costs of the plaintiff’s claim be borne on a party/party basis out of the estate of the late Earle Cameron.
3.   Order that the defendant’s costs be borne on an indemnity basis out of the estate of the late Earle Cameron.

Catchwords:
SUCCESSION — Family provision — Claim by alleged de facto partner and alleged member of household of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether adequate provision made prior to death of the deceased

Legislation Cited:
Evidence Act 1995 (NSW), s 138
Interpretation Act 1987 (NSW), s 21C
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:
Afoa v McBride [2017] NSWCA 323
Bosch v Perpetual Trustee Company [1938] AC 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Driver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Evans v Levy [2011] NSWCA 125
Hunter v Hunter (1987) 8 NSWLR 573
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
McKenzie v Topp [2004] VSC 90
Re Fulop (Deceased) (1987) 8 NSWLR 679
Ridgeway v The Queen (1995) 184 CLR 1; [1995] HCA 66
Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sgro v Thompson [2017] NSWCA 326
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Stone v Stone [2016] NSWSC 605
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep)

Category: Principal judgment
Parties: Rosalind Karpin (Plaintiff)
Christopher Gough (Defendant)
Representation:
Counsel:
E Cohen (Plaintiff)
L Ellison SC with E Beljic (Defendant)
Solicitors:
Litigation Specialists (Plaintiff)
Storey & Gough Lawyers (Defendant)

File Number(s): 2020/00181351
Publication restriction: Nil

Judgment

HER HONOUR: This is an application pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) by the plaintiff (Ms Rosalind Karpin, also referred to from time to time in the evidence by her former married surname, Gray) for provision out of the estate of the deceased, the late Mr Earle Cameron, with whom Ms Karpin alleges she was in a de facto or close personal relationship at various times prior to the deceased’s death on 4 November 2019. The defendant, Mr Christopher Gough, solicitor, is the executor of the deceased’s estate to whom probate was granted on 29 April 2020 of the deceased’s last Will dated 26 June 2017.
The defendant contests 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 Karpin v Gough

Details

AGLC: Karpin v Gough [2022] NSWSC 471
Case: [2022] NSWSC 471
Decision Date: 21 April 2022

CaseChat Overview and Summary

In Karpin v Gough, the parties involved were Karpin, an alleged de facto partner and member of the deceased's household, and Gough, the executor of the deceased's estate. The dispute centred around Karpin's claim for provision from the deceased's estate under the Succession Act 2006 (NSW), Chapter 3. Karpin argued that she was an eligible person for family provision and that the deceased had not made adequate provision for her prior to his death.

The primary legal issues the court needed to address were whether Karpin qualified as an eligible person under the Act and whether the deceased had made adequate provision for her before his death. The court had to consider the definition of an eligible person, which includes those who were in a de facto relationship with the deceased at the time of their death and those who were members of the deceased's household. Additionally, the court had to evaluate the adequacy of the provision made by the deceased, taking into account various factors, including the nature of the relationship, the standard of living during the relationship, and the deceased's financial circumstances.

The court found that Karpin did not qualify as an eligible person for family provision. The evidence presented did not establish that Karpin and the deceased were in a de facto relationship, nor did it demonstrate that Karpin was a member of the deceased's household. Consequently, Karpin was not eligible to make a claim for provision from the estate. Furthermore, the court determined that even if Karpin had been an eligible person, the deceased had made adequate provision for her, considering the circumstances of the relationship and the deceased's financial situation.

The court's decision resulted in Karpin's claim being dismissed. The executor of the estate was not required to provide further financial support to Karpin. The court's ruling emphasised the importance of meeting the statutory criteria for family provision claims and the need for clear evidence to support such claims.

Orders