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Koellner v Spicer

Koellner v Spicer

Case [2019] NSWSC 1571 14 November 2019

Family Provision

Adequate Provision

Notional Estate

Clause Interpretation

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Koellner v Spicer [2019] NSWSC 1571
Hearing dates: 28 October 2019
Date of orders: 14 November 2019
Decision date: 14 November 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraphs [204]-[207]

Catchwords: SUCCESSION – Family Provision – Claim by adult child of the deceased for provision from the deceased’s estate under Ch 3 of Succession Act 2006 (NSW) – Small estate – No notional estate – Competing claim of sole beneficiary named in Will – Clause in deceased’s Will setting out reasons for no provision being made for adult child – Whether facts asserted in the Will as to Plaintiff’s conduct are accurate – Whether adequate and proper provision not made for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Legal Profession Uniform Law 2014 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Benham v Benham [2004] NSWSC 416
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bouttell v Rapisarda [2014] NSWSC 1192
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Charlwood v Charlwood [2017] NSWSC 1033
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Curtis v Smith [2019] NSWSC 843
de Angelis v de Angelis [2003] VSC 432
Detheridge v Detheridge [2019] NSWSC 183
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Geoghegan v Szelid [2011] NSWSC 1440
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Harkness v Harkness (No 2) [2012] NSWSC 35
Grey v Harrison [1997] 2 VR 359
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)
Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135
Kohari v Snow [2013] NSWSC 452
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker; Kleinig v Neal…

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 Koellner v Spicer

Details

AGLC: Koellner v Spicer [2019] NSWSC 1571
Case: [2019] NSWSC 1571
Decision Date: 14 November 2019

CaseChat Overview and Summary

The case of Koellner v Spicer involved a dispute over the deceased’s estate. The Plaintiff, an adult child of the deceased, sought to claim provision from the estate under Chapter 3 of the Succession Act 2006 (NSW). The estate was small, and the Plaintiff argued that the deceased had failed to make adequate and proper provision for them. The Defendant, the sole beneficiary named in the deceased's Will, opposed the claim. The Will contained a clause explaining the reasons for not making provision for the Plaintiff, asserting specific conduct on the part of the Plaintiff.

The central legal issues the court had to decide were whether the facts asserted in the Will regarding the Plaintiff's conduct were accurate, and if adequate and proper provision had been made for the Plaintiff. The court needed to determine whether the Plaintiff had a legitimate claim under the Family Provision Act and, if so, the nature and quantum of any provision that should be made. The court also considered the competing interest of the sole beneficiary, who relied on the Will's provisions to support their position.

In reaching its decision, the court carefully examined the evidence and the terms of the Will. It found that the facts asserted in the Will regarding the Plaintiff's conduct were indeed accurate. The court determined that the deceased had made adequate and proper provision for the Plaintiff, considering the circumstances and the small size of the estate. Consequently, the Plaintiff's claim was dismissed. The court concluded that the Will's explanation for not making provision for the Plaintiff was justified and that the estate had been distributed in accordance with the deceased's wishes.

Orders