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Kitteridge v Kitteridge

Kitteridge v Kitteridge

Case [2022] NSWSC 193 1 March 2022

Family Provision

Claim Under Succession Act

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Supreme Court

New South Wales

Medium Neutral Citation: Kitteridge v Kitteridge [2022] NSWSC 193
Hearing dates: 31 January – 2 February 2022
Decision date: 01 March 2022
Jurisdiction: Equity
Before: Robb J
Decision:
See [130]-[133] below

Catchwords:
SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — substantial competing claim of another of the deceased’s sons, the defendant executor — reasonably large estate — no provision made for plaintiff in the deceased’s will — plaintiff and the deceased estranged for 30 years — estrangement provoked by the deceased in wake of divorce from plaintiff’s and defendant’s father and subsequent family rift — family provision litigation by deceased against own parents’ estates diverted inheritance from plaintiff — extensive series of written statements by the deceased explaining exclusion of plaintiff from will — further provision ordered

Legislation Cited:
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bates v Cooke [2015] NSWCA 278; (2015) 14 ASTLR 221
Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Kemperman v Antonenas [2021] NSWSC 1555
Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Sassoon v Rose [2013] NSWCA 220
Squire v Squire [2019] NSWCA 90
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330

Category: Principal judgment
Parties: Lee Kitteridge (Plaintiff)
Steven Kitteridge (Defendant)
Representation:
Counsel:
C Liedermann (Plaintiff)
R Bianchi (Defendant)
Solicitors:
Edwards Kirby Lawyers (Plaintiff)
Farrar Gesini Dunn (Defendant)

File Number(s): 2021/81198

Judgment

The plaintiff, Lee Kitteridge, is the second son of the late Brenda May Kitteridge, who died on 7 September 2020 at the age of 80 years.
The defendant, Steven Kitteridge, is the deceased's youngest son and the executor of the deceased's 15 March 2017 will under a grant of probate made by this Court on 27 November 2020.
The parties have an older brother, Robert Kitteridge, who has not taken part in these proceedings.
I will, with no disrespect to members of the Kitteridge family, refer to them by their first names.
In these proceedings, Lee seeks an order for further provision for his maintenance, education and advancement in life pursuant to Chapter 3 of the Succession Act 2006 (NSW) out of the estate of the deceased.
The primary asset of the estate is a residential property in Middle Cove that has a value between $2,250,000 and $2,420,000. The estate also includes cash of $147,867.23.
By her last will dated 15 March 2017, the deceased gave a legacy of $10,000 to her sister-in-law. The deceased gave 10% of the residue of her estate to her granddaughter. The final 90% of the residue of the deceased's estate was left to Steven.
Clause 6 of the will provided:

I have made no provision for…

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 Kitteridge v Kitteridge

Details

AGLC: Kitteridge v Kitteridge [2022] NSWSC 193
Case: [2022] NSWSC 193
Decision Date: 01 March 2022

CaseChat Overview and Summary

The case of Kitteridge v Kitteridge involved a claim by an adult child, the plaintiff, for provision from the deceased's estate under the Succession Act 2006 (NSW), Chapter 3. The plaintiff and the deceased had been estranged for 30 years, a period of estrangement that began following the deceased's divorce from the plaintiff's and the defendant's father, which led to a significant family rift. The deceased, who was the defendant in this case, had made no provision for the plaintiff in their will. The dispute arose from the deceased's substantial estate, which also faced a substantial competing claim from another son, the defendant executor.

The central legal issues before the court were whether the plaintiff, despite the long period of estrangement, was entitled to make a claim under the Succession Act, and if so, the extent of the provision to be made from the deceased's estate. The court had to consider the competing claims of the plaintiff and the defendant, the reasons behind the estrangement, and the deceased's documented rationale for excluding the plaintiff from their will. The court needed to balance the deceased's right to dispose of their estate as they wished against the statutory rights of the plaintiff under the Succession Act.

In its decision, the court found that the estrangement did not automatically disqualify the plaintiff from making a claim under the Succession Act. The court noted that the period of estrangement did not absolve the deceased from making reasonable provision for the plaintiff. The court considered the deceased's extensive written statements justifying the exclusion of the plaintiff from the will but found that these did not sufficiently address the statutory obligations under the Act. The court concluded that the deceased's actions in provoking the estrangement and the significant family rift did not absolve them of the obligation to make provision for the plaintiff. Consequently, the court ordered that further provision be made from the deceased's estate to the plaintiff.

The final orders of the court directed that the deceased's estate be adjusted to provide for the plaintiff, reflecting the court's determination that the deceased had not made sufficient provision for the plaintiff under the Succession Act. The court did not specify the exact amount of the provision but mandated that it be made from the deceased's estate, recognising the plaintiff's entitlement under the Act despite the estrangement.

Orders