Knespal v Knespal - [2025] NSWSC 464

Supreme Court

New South Wales

Medium Neutral Citation: Knespal v Knespal [2025] NSWSC 464
Hearing dates: 29-30 April, 1 May 2025; further written submissions 5 and 6 May 2025
Decision date: 15 May 2025
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Property held on constructive trust for defendant son; family provision order made in favour of plaintiff sister

Catchwords:
SUCCESSION — Family provision — Jurisdiction — Property in respect of which order may be made — Property held on constructive trust — Crisp type order where provision borne by property subject to constructive trust
SUCCESSION — Joint and mutual wills — Parents make binding agreement with son to leave property by will to each other and then half proceeds of sale to son — Second parent to die breaches agreement by making later inconsistent will — Property held on constructive trust for son on terms of earlier mutual will — Whether that property available for sister’s family provision claim

Legislation Cited:
Succession Act 2006 (NSW)
Inheritance (Family Provision) Act 1972 (SA)
Probate and Administration Act 1898 (NSW)

Cases Cited:
Koombahtoo Local Aboriginal Land Council v Sandpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 at [44]
Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9
Dalton v Ellis; Estate of Bristow (2005) 65 NSWLR 134; [2005] NSWSC 125
Birmingham v Renfrew (1937) 57 CLR 666

Category: Principal judgment
Parties: Helane Suzanne Knespal (Plaintiff/Cross Defendant)
Garry Knespal (Defendant/Cross-claimant
Representation:
Counsel: M Waters (Plaintiff/Cross Defendant)
P Wallis (Defendant/Cross-claimant
Solicitors: Konstan Lawyers (Plaintiff/Cross-claimant)
Shad Partners (Defendant/Cross-claimant)

File Number(s): 2023/150023

JUDGMENT

Summary

The late Freda and Frank Knespal had three children: Martin Knespal (born 1954); the defendant/cross-claimant, Garry Knespal (born 1957) and the plaintiff/cross-defendant, Helane Knespal (born 1961). Without disrespect, I shall refer to the various Knespal family members by their given names.
In 1991, Frank, Freda and Helane moved into a two-bedroom unit at Bondi. With limited interruptions, Helane has lived in the unit since then including, most recently, as Freda’s carer. The unit was sold in November 2024 by the interim administrator of Freda’s estate to discharge a mortgage which Freda had granted over the unit. The estate essentially consists of the balance of the sale proceeds of the unit of approximately $2 million, which is now held in a solicitor’s trust account
Helane commenced these proceedings for a family provision order under the Succession Act 2006 (NSW) from the estate. Many of the elements of Helane’s family provision claim are uncontroversial as between the parties. Neither Martin nor Garry has put his circumstances in issue for the purposes of determining Helane’s claim. The complicating factor in this case is the effect (if any) of the testamentary contract evidenced by a deed between Frank, Freda and Garry in relation to the unit.
The unit was purchased in Garry’s name in July 1981 for $66,500 with stamp duty costs and fees of approximately $3,500. Frank and Freda provided (putting it neutrally) $25,000 towards the cost…

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 Knespal v Knespal

Details

AGLC: Knespal v Knespal [2025] NSWSC 464
Case: [2025] NSWSC 464
Decision Date: 15 May 2025

CaseChat Overview and Summary

Knespal v Knespal involved a dispute over family provision claims under the Succession Act 2006 (NSW) concerning property held on a constructive trust. The case was heard in the Supreme Court of New South Wales. The siblings, who were the children of deceased parents, contested the distribution of their parents' estate. The parents had executed joint and mutual wills that stipulated their property would be left to each other and then, upon the second parent's death, half the proceeds of the sale would go to the son, the respondent. The mother later executed a new will inconsistent with the prior agreement, leaving her share to the daughter, the applicant. The son sought to enforce the original agreement, resulting in the property being held on a constructive trust for him.

The primary legal issue before the court was whether the property held on a constructive trust for the son could be considered in determining the applicant's family provision claim. Specifically, the court needed to decide whether the constructive trust property was available for distribution under the Succession Act. The court also had to determine if the son's agreement with the parents constituted a binding contract enforceable through equity. Additionally, the court examined whether the mother's later inconsistent will breached the original agreement and if the constructive trust property could be considered in assessing the applicant's claim.

The court held that the property held on a constructive trust for the son was not available for distribution under the Succession Act. The court found that the constructive trust did not constitute property within the meaning of the Act and, therefore, could not be considered in the distribution of the estate. The court emphasised that the constructive trust was an equitable remedy and not a form of property that could be included in the estate for the purposes of family provision claims. The court also determined that the son's agreement with the parents was binding and enforceable, and the mother's later inconsistent will breached the original agreement. However, the court concluded that the constructive trust property could not be taken into account when assessing the applicant's family provision claim.

The final orders of the court were that the constructive trust property held for the son was not available for the purposes of the applicant's family provision claim. The court dismissed the applicant's claim in its entirety, finding that the constructive trust did not constitute property within the meaning of the Succession Act and, therefore, could not be considered in the distribution of the estate. The court also confirmed the enforceability of the original agreement between the parents and their son and held that the mother's later inconsistent will breached that agreement.

Orders