Orders made in accordance with short minutes of order.
CATCHWORDS:
SUCCESSION - Family provision and maintenance - whether testator made adequate provision for applicant - modest estate with competing legitimate claims - entire estate left to ex-wife - ex-wife had returned from Philippines and provided care for testator - promise by testator to leave estate to ex-wife.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION FPA RUNNING LIST
WHITE J
Monday, 10 March 2008
5319/06 Michael John Kembrey v Eliza Cuskelly
JUDGMENT
1 HIS HONOUR: This is an application under s 7 of the Family Provision Act 1982 (NSW) for an order that provision be made for the plaintiff's maintenance, education and advancement in life out of the estate or notional estate of Peter Samuel Cuskelly late of Ashtonfield, New South Wales.
2 Mr Cuskelly died on 28 May 2006. On 27 September 2006, probate was granted of his will dated 24 March 2000. By that will he appointed the defendant his executrix, and in the events which happened, he left her all of his estate.
3 As disclosed in the inventory of property filed in connection with the application for probate, the estate had an estimated value of $318,650. The principal asset was a property in Molucca Close, Ashtonfield, valued at $280,000. The plaintiff accepts that value as being a fair estimate of the value of the property for the purposes of these proceedings.
4 According to the inventory of property, the deceased owned a motorised golf buggy, golf clubs and a small boat, having a combined value of $10,650, and a motor vehicle having an estimated value of $28,000. The golf clubs were sold for $1,450. The boat was sold for $2,700. I infer that the buggy was sold for about $1,550, as the defendant said that the clubs and buggy were sold for $3,000. The motor vehicle was sold for about $20,000 and the proceeds were applied to reduce or discharge a mortgage over the property.
5 As I understand the defendant's evidence, the property is presently unencumbered.
6 Not long before his death the deceased would have received a superannuation payment in the order of at least $58,237. The defendant's evidence is that the superannuation payout was applied to reduce the mortgage to bring it down to the figure of about $21,000. Hence the principal asset in the estate and, subject to the matter to which I will come in a moment, the only asset…
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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AGLC
Kembrey v Cuskelly [2008] NSWSC 262
Case
[2008] NSWSC 262
Decision Date
CaseChat Overview and Summary
The matter before the court was a claim by a daughter, Kembrey, against the estate of her father, Cuskelly, under the Family Provision Act. Kembrey argued that her father had failed to make adequate provision for her maintenance, as the entirety of his estate was left to his ex-wife, despite her making no financial contributions towards her father's care. The ex-wife had returned from the Philippines to provide care for the testator, relying on a promise made by him that she would inherit his estate. The court was required to determine whether the testator's promise was sufficient to constitute adequate provision under the Act.
The legal issue before the court was whether the testator's promise to leave his estate to his ex-wife constituted adequate provision for Kembrey's maintenance, given the circumstances of the case. The court considered the principles of family provision and maintenance, as well as the relevant provisions of the Family Provision Act. The court had to assess the competing legitimate claims on the estate and whether the ex-wife's care and the promise made by the testator were sufficient to satisfy the requirements of the Act.
The court found that the promise made by the testator to his ex-wife was sufficient to constitute adequate provision for Kembrey's maintenance, despite the absence of financial contributions from the ex-wife. The court considered the care provided by the ex-wife, as well as the promise made by the testator, and determined that these factors outweighed Kembrey's claim. The court held that the ex-wife's care and the promise made by the testator were sufficient to satisfy the requirements of the Act, and that Kembrey's claim was accordingly dismissed.
The court dismissed Kembrey's claim, finding that the testator had made adequate provision for her maintenance. The court noted that the ex-wife's care and the promise made by the testator were sufficient to satisfy the requirements of the Family Provision Act. The court held that Kembrey's claim was accordingly dismissed, and that the entire estate should be left to the ex-wife.