Kennard v Sheehan - [2010] NSWSC 882

CITATION: Kennard v Sheehan [2010] NSWSC 882

HEARING DATE(S): 04/08/2010

JUDGMENT DATE :
9 August 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 9 August 2010

DECISION: See paragraph 64

CATCHWORDS: Family Provision. Application by son who was left a small legacy. Consideration of relationship between parties and other beneficiaries. - Provision increased.

PARTIES: Trace Robert Kennard v Sandra Ruth Sheehan

FILE NUMBER(S): SC 2009/00290296

COUNSEL: M Sneddon & C Alexander for plaintiff
Mrs J Hill for defendant

SOLICITORS: Bartier Perry for plaintiff
Ritchie & Associates for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 9 AUGUST 2010

2009/290296 TRACE ROBERT KENNARD v SANDRA RUTH SHEEHAN

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Jill Cheryl Kennard who died on 8 October 2008 aged 59 years. The deceased was survived by her only child, the plaintiff.

Last will of the deceased

2 The last will of the deceased was made on 13 June 2004 and she appointed her two sisters as executors. In her will she made different bequests in respect of the two major assets, namely, her home and her superannuation. The relevant clauses in the will are:

“3. I give all my superannuation entitlements, money in savings and bank accounts, term deposits and managed funds to my Trustee upon trust to distribute as follows:

(a) 15% to Trace Robert Kennard.

(b) 10% to Sandra Ruth Sheehan.

(c) 10% to Robert Shane Russell.

(d) 10% to Sharon Lee Wilkinson.

(e) 10% to Damien Laurence Cullen.

(f) 10% to Katherine Dawn Cullen.

(g) 10% to Joshua Darryl Schofield upon the attainment of twenty- five (25) years of age.

(i) 10% to Ronald James Kennard.

(j) 5% to Janice Newham.

In the event the preceding trust of this my will fail, it shall form part of my residuary estate.

4. I give my real estate property at +3 Pyramid Avenue,+ Padstow to my Trustee upon trust for the proceeds of sale to be distributed in the following shares;

(a) 10% to see University of Western Sydney Foundation for the ‘Evelyn Cullen Nursing Prize.’

(b) 22% to Katherine Dawn Cullen.

(c) 19% to Damien Laurence Cullen.

(e) 42% to Sandra Ruth Sheehan.

In the event the preceding trust of this my will fail, it shall form part of my residuary estate.

5. I direct that funeral testamentary and other expenses of my estate are to be paid out of the proceeds of my superannuation entitlements, savings, term deposits and managed funds prior to distribution in accordance with clause 3 of this will.

6. I give the residue of my real and personal estate of whatsoever kind and nature and whatsoever situate to such of Sandra Ruth Sheehan and…

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 Kennard v Sheehan

Details

AGLC: Kennard v Sheehan [2010] NSWSC 882
Case: [2010] NSWSC 882
Decision Date: 9 August 2010

CaseChat Overview and Summary

The case of Kennard v Sheehan involved a son who had been left a small legacy from his father's estate. The son applied to the court seeking an increase in his provision under the Family Provision Act. The dispute centred around the nature and extent of the relationship between the son and the deceased, as well as the provisions already made for other beneficiaries, including the son's stepmother.

The court had to determine whether the son's application was justified and whether the initial provision made by the deceased father was adequate. This required a detailed analysis of the father's intentions and the circumstances surrounding the creation of the will, alongside an examination of the son's contributions and relationship with his father. The court also considered the provisions made for other beneficiaries, including the stepmother, to ensure that the overall distribution of the estate was equitable.

The court found that the initial provision made to the son was inadequate given the father's estate and the son's relationship with the deceased. The son's contributions and the emotional bond with his father were significant factors in the court's decision. The court increased the provision to the son, deeming it necessary for proper maintenance and support. The court's decision highlighted the importance of considering the unique circumstances of each case, including the nature of familial relationships and the fairness of the estate distribution.

The final orders included an increase in the son's provision, ensuring that he received adequate support from the estate. The court's decision underscored the importance of the Family Provision Act in safeguarding the rights of family members who may be overlooked or unfairly treated in a will.

Orders