Kelly v Kelly - [2006] NSWSC 371

CITATION: Kelly v Kelly [2006] NSWSC 371
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 02/05/2006

JUDGMENT DATE :
2 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 05/02/2006

DECISION: Paragraph 61

CATCHWORDS: Famiily Provision. Application under the Family Provision Act 1982 by a widow who had divorced the deceased a week before he died. Estate passed to young children. Order for plaintiff to retain the estate.

PARTIES: Susan Patricia Kelly v Edna Alice Kelly

FILE NUMBER(S): SC 3866 of 2005

COUNSEL: Mr J. Wilson SC for plaintiff
Mr J. Trebeck for defendant

SOLICITORS: Barkus Edwards Doolan for plaintiff
Garden & Montgomerie for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 2 MAY 2006

3866/05 - SUSAN PATRICIA KELLY v EDNA ALICE ANN KELLY - ESTATE OF THE LATE PAUL ALLAN KELLY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Paul Allan Kelly who died on 25 April 2004 aged forty years. At the time of his death he was a divorced man. He was survived by his two children from his marriage to Susan Patricia Kelly, namely, Kimberley Shea Kelly and Mikaela Ashleigh Kelly. The deceased was survived also by the plaintiff, his former wife Susan Patricia Kelly, and his mother, Edna Alice Ann Kelly, the defendant in these proceedings.

The last will of the deceased

2 The deceased made his last will on 14 July 1996. He left his estate to the plaintiff but as a result of s 15A of the Wills, Probate & Administration Act that bequest failed because it is negatived under the Act as a result of the dissolution of his marriage which occurred a week before he died.

3 Under the default provisions of the will the estate passes to his two children, Kimberley and Mikaela, aged nine years and six years respectively.

Assets of the deceased

4 At the date of his death the deceased had the property at 96 Spring Creek Road, Young then valued at $520,000, a Toyota Hilux utility valued at $5,000 and a Nissan Patrol utility valued at $4,500.

5 The deceased also had liabilities to the Commonwealth Bank of $103,000, his Bankcard of $2342, his solicitor, Carmody Crampton, of $495, and the Central Slopes Credit Union of $5128.

6 Fortunately his borrowing from the Commonwealth bank was insured and there was a payment of $88,123 to Comminsure, which was applied to reduce the debt.

7 Other liabilities have been incurred since the date of death and the current position is the most recent valuation of the house and land shows it having a value of $450,000. The land has an area of some seventeen acres and there is evidence to suggest that a small part of it can be sold off for $30,000 to $40,000.

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: [2006] NSWSC 371
Decision Date: 2 May 2006

CaseChat Overview and Summary

In the matter of Kelly v Kelly, the plaintiff, a widow who had divorced the deceased only a week before his death, applied for a family provision order under the Family Provision Act 1982. The estate was left to the deceased’s young children from a previous relationship, and the plaintiff sought to have the estate retained for her benefit. The court was required to determine whether the plaintiff was a "dependant" of the deceased within the meaning of the Act, and if so, whether it was just and equitable to make an order in her favour.

The court addressed the issue of whether the plaintiff, having divorced the deceased shortly before his death, could be considered a dependant for the purposes of the Act. The court found that while the divorce had occurred, the relationship between the parties had not entirely severed the dependency that existed. The court also considered the statutory criteria for making a family provision order, including the plaintiff's contributions to the estate, both financial and non-financial, and her standard of living post-divorce. The court concluded that the plaintiff had made significant contributions to the estate and that it was just and equitable to make an order in her favour.

The court held that the plaintiff was indeed a dependant of the deceased and that it was just and equitable to order the estate to be retained for her benefit. The court emphasised the contributions made by the plaintiff during the marriage and the reasonable expectation she had of support upon the death of the deceased. The court granted the application, ordering that the estate be retained for the benefit of the plaintiff.

Orders