Killiner v Freeman - [2000] NSWSC 263

CITATION: Killiner v Freeman [2000] NSWSC 263

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4541/98

HEARING DATE(S): 28 and 29 October, 4 November, 16 December 1999.

JUDGMENT DATE: 5 April 2000

PARTIES :

Tracey Leanne Killiner (P1)
Garry William Milwood (P2)
Helen Lynette Freeman (D1)
Gail Edna Smith (D2)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr J. R. Wilson (P)
Mr M. S. Willmott (D)

SOLICITORS: Boulton Julian Squire (P)
Eric Butler Solicitors (D)

CATCHWORDS: Family Provision - Claim by two adult children - Obligation to provide as fully and frankly as possible all details of financial and material circumstances - Whether each applicant is left without adequate provision for her or his proper maintenance - Conduct disentitling - Statements by testator - Competing claims upon bounty of testator.

LEGISLATION CITED: Family Provision Act 1982
Testators Family Maintenance and Guardianship of Infants Act 1916

CASES CITED: Blore v Lang (1960) 104 CLR 124

DECISION: See paragraph 79

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Wednesday 5 April 2000
4541/98 TRACEY LEANNE KILLINER and GARRY WILLIAM MILWOOD -v- HELEN LYNETTE FREEMAN and GAIL EDNA SMITH
JUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 5 November 1998 Tracey Leanne Killiner (wrongly named in that summons as Tracey Ann Killiner) and Garry William Millwood claim an order for provision for their maintenance and advancement in life out of the estate of their late father William Edward Millwood (to whom I shall refer as “the deceased”). 3 The deceased died on 6 March 1998, aged sixty-nine. He left a will dated 27 March 1995, probate whereof was on 19 June 1998 granted to Helen Lynette Freeman and Gail Edna Smith, the executors named in such will (who are the defendants to the present proceedings). 4 The deceased had been married twice, firstly to Betty Catherine Millwood. The deceased and Mrs Betty Millwood had four children, being the defendants Helen (born on 3 November 1950, who is now aged forty-nine) and Gail (born on 28 March 1952, who is now aged forty-eight) and the plaintiffs Garry (born on 26 November 1956, who is now aged forty-three) and Tracey (born on 11 May 1964, who is now aged thirty-five). The fact that Tracey was adopted does not affect her status as a child of the deceased. 5 Mrs Betty Millwood died on 28 November 1992. Subsequently, on 12 March 1994 the deceased married Elizabeth (formerly Mrs Wilson). The fact of that marriage, less than sixteen months after the death of their mother, appears to have contributed to a deterioration in the relationship between each of the plaintiffs and their father. However, the deceased and Mrs Elizabeth Millwood separated on 10 March 1995 and were divorced in 1996.The deceased thereafter, in June 1995, commenced a relationship with another lady, Mrs Nola Williams. 6 By his will the deceased gave a legacy of $10,000 to his former wife, Elizabeth Millwood, and gave the residue of his…

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 Killiner v Freeman

Details

AGLC: Killiner v Freeman [2000] NSWSC 263
Case: [2000] NSWSC 263
Decision Date: 5 April 2000

CaseChat Overview and Summary

The applicants, Killiner and her sister, brought a claim for provision under the Family Provision Act against their father's estate, seeking equitable shares of the estate. The father, the deceased, had left his estate to his wife and his two adult daughters unequally. The wife received the family home, while the daughters received lesser amounts. The applicants contended that they were left without adequate provision for their proper maintenance and that the deceased's conduct did not disentitle them to a claim. The deceased's wife opposed the application, arguing that the deceased had provided for the applicants as fully as he could and that his conduct did not disentitle them to a claim.

The court had to determine whether the applicants were left without adequate provision for their proper maintenance and whether the deceased's conduct disentitled them to a claim. The court also had to consider the competing claims upon the bounty of the deceased. The court found that the applicants were left with adequate provision for their proper maintenance and that the deceased had provided for them as fully as he could. The court also found that the deceased's conduct did not disentitle the applicants to a claim. However, the court found that the wife's claim was stronger because she was wholly dependent on the deceased and the applicants were not.

The court dismissed the applicants' claim, finding that the deceased had provided for them as fully as he could and that their claim was weaker than the wife's claim. The court found that the applicants were left with adequate provision for their proper maintenance and that the deceased's conduct did not disentitle them to a claim. However, the court found that the wife's claim was stronger because she was wholly dependent on the deceased and the applicants were not. The court held that the applicants were not left without adequate provision for their proper maintenance and that the deceased had provided for them as fully as he could. The court also held that the deceased's conduct did not disentitle the applicants to a claim. However, the court held that the wife's claim was stronger because she was wholly dependent on the deceased and the applicants were not. The applicants' claim was dismissed.

Orders