Kelly v Kelly - [2007] NSWSC 541

CITATION: Kelly v Kelly [2007] NSWSC 541

HEARING DATE(S): 29,30 November 2006
1 December 2006
30 April 2007

JUDGMENT DATE :
31 May 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

CATCHWORDS: Family Provision. - Application under Family Provision Act 1982 by a daughter who was left a small portion of deceased's grazing property. Balance left to son. Order for adjustment of parties' share of the property.

PARTIES: Donna Mary Kelly v Clarke John Kelly

FILE NUMBER(S): SC 1138 of 2005

COUNSEL: Mr J Wilson SC for plaintiff
Mr SG Cambpell Sc & Mr M Meek for defendant

SOLICITORS: Holman Webb for plaintiff
Lyons Barnett Kennedy for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 31 May 2007

1138 of 2005 Donna Mary Kelly v Clarke John Kelly

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ethel Kelly who died on 14 July 2004. The deceased was survived by the plaintiff, her daughter, and her son, the defendant. The deceased had been married and with her husband she had carried on a grazing business on their property “Oakvale”at Upper Horton in country New South Wales. Her husband predeceased her on 28 September 1985 and the deceased continued with the business until her death.

The will of the deceased

2 The deceased made her last will on the 11 September 2003 and under that will she appointed the plaintiff and the defendant executors and trustees of her will. The plaintiff received a specific bequest of:

3 The defendant received the balance of the property and the plant and livestock. The residue of the estate was divided between the plaintiff and the defendant equally.

Assets in the estate of the deceased

4 At the time of the hearing the estate comprised the following assets:

$18,700.00

$1,568,044.13

5 There were rates and taxation liabilities outstanding amounting to $8,991.27 leaving a net estate before costs of $1,559,052.86.

6 The parties have incurred substantial costs in the matter. The plaintiff's costs for a two-day hearing were estimated at $123,300 and the defendant’s at $109,925. This is a total of $233,225. The hearing occupied three days with another short period on a fourth day. The amount of these costs means that if the plaintiff is successful there will be no residue.

Family history

7 This is conveniently set…

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 541
Decision Date: 31 May 2007

CaseChat Overview and Summary

In the matter of Kelly v Kelly, the daughter of the deceased, who was left a small portion of the deceased's grazing property, sought an adjustment of the parties' shares of the property under the Family Provision Act 1982. The son, who was left the balance of the property, contested the application. The dispute was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether the daughter had made out a case under the Family Provision Act 1982 that the dispositions made by the deceased in his will were not reasonable in all the circumstances. The court needed to assess whether the deceased had failed to make reasonable financial provision for the applicant by leaving her a significantly smaller share of the property compared to her brother. This required a consideration of the deceased's intentions, the needs of the parties, and the contributions made by the parties to the estate.

The court found that the deceased had made provision for the applicant but that it was not reasonable in all the circumstances. The court highlighted that the deceased had not adequately considered the applicant's needs and contributions to the estate, particularly given the close relationship between the parties. The court also noted the disproportionate disparity in the shares of the property left to each child. As a result, the court ordered that the shares of the property be adjusted to reflect a more equitable distribution between the parties.

The final orders of the court were that the daughter's share of the property be increased and the son's share be correspondingly reduced. The exact quantum of the adjustment was left to be determined by further proceedings.

Orders