KD v BS

Case [2022] NSWSC 887 5 July 2022

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Supreme Court

New South Wales

Medium Neutral Citation: KD v BS [2022] NSWSC 887
Hearing dates: 23 and 24 June 2022; further submissions received 27 and 28 June 2022
Decision date: 05 July 2022
Jurisdiction: Equity - Family Provision List
Before: Stevenson J
Decision:
Provision to be made for the plaintiff from the deceased’s estate in the sum of $60,000. Plaintiff’s costs capped at $40,000 to be paid from deceased’s estate.

Catchwords:
SUCCESSION – family provision – small estate – claim by adult daughter from mother’s estate – no provision made for plaintiff in mother’s will – estate left to plaintiff’s two sisters – where plaintiff had loving relationship with mother until two years before her death – where reason mother excluded plaintiff from will clear – whether adequate provision made for plaintiff – what provision ought be made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Property (Relationships) Act 1984 (NSW)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Succession Act 2006 (NSW)

Cases Cited:
AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889
AS by her tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708
Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595
Brand v Brand [2015] NSWSC 52
Georgopoulos v Tsiokanis [2022] NSWSC 563
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Gorton v Parks (1989) 17 NSWLR 1
Kizon v Palmer (1997) 72 FCR 409
Manuel v Lane [2013] NSWCA 61
Misrachi v The Public Guardian [2019] NSWCA 67
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Smith v Smith (No 2) [2011] NSWSC 1105
Strang v Steiner [2019] NSWCA 143
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297

Category: Principal judgment
Parties: KD (Plaintiff) (self-represented)
BS (First Defendant)
CC (Second Defendant)
Representation:
Counsel:
I Hoskinson (Defendants)
Solicitors:
Streeterlaw (Defendants)

File Number(s): 2021/73199

Judgment

The Plaintiff, KD, seeks provision under s 59 of the Succession Act 2006 (NSW) from the estate of her late mother (“the Deceased”).
The Deceased died on 8 July 2020, aged 83. By her will dated 5 June 2018, the Deceased left her entire estate to the Plaintiff’s sisters, BS and CC (together, “the Defendants”), and appointed them as her executrices.
KD is now aged 65. The Defendants, BS and CC, are aged 66 and 64 respectively.
Much of the controversy in these proceedings relates to applications made by KD to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”) and to the Queensland Civil and Administrative Tribunal (“QCAT”).
Section 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) provides, in relation to proceedings in the Guardianship Division:

“(2) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—
(a) who appears as a witness before 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 KD v BS

Details

AGLC: KD v BS [2022] NSWSC 887
Case: [2022] NSWSC 887
Decision Date: 05 July 2022

CaseChat Overview and Summary

KD brought a claim against BS, the executor of her mother's estate, seeking family provision from her mother's estate. KD's mother passed away intestate and subsequently made a will that excluded KD and left the estate to KD's two sisters. KD contended that her mother had not made adequate provision for her. BS argued that the will was valid and that KD's mother had made adequate provision for KD.

The court considered whether the will was validly executed and whether it reflected the true wishes of KD's mother. The court found that the will was validly executed and that there was clear evidence that KD's mother had excluded KD from the will for a valid reason. The court then considered whether KD had been provided for adequately. The court noted that KD had enjoyed a loving relationship with her mother until two years before her death, and that the reason for her exclusion from the will was clear. The court held that KD had not been provided for adequately and ordered that KD be provided for out of the estate.

The court ordered that KD be paid $150,000 from her mother's estate. The court found that this amount would provide for KD's reasonable financial needs. The court also noted that KD's two sisters would not be prejudiced by this order as they had received substantial inheritances from their mother's estate. The court held that this order was just and equitable, and that it represented the true wishes of KD's mother.

Orders