Large v Higham - [2010] NSWSC 104

CITATION: Large v Higham & Ors [2010] NSWSC 104
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 & 24-27 August 2009, 17 December 2009

JUDGMENT DATE :
23 February 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION:
ORDERS:
(1) Pursuant to UCPR r28.2 order that the following questions be decided separately:

(a) Whether the provision made for the plaintiff by the deceased was adequate for the plaintiff’s proper maintenance, education and advancement in life: Family Provision Act, s 9(2);
(b) In the event that the question in (a) be answered in the affirmative, what further provision ought to be ordered for the plaintiff.

CATCHWORDS: SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions
- uncontested that inadequate provision was made for the plaintiff out of the testator's estate - what is the proper provision that should be made for the plaintiff’s maintenance, education and advancement in life - little chance of plaintiff finding employment - plaintiff given legacy to further his advancement in life

LEGISLATION CITED: Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)

CATEGORY: Principal judgment

CASES CITED: Foley v Ellis [2008] NSWCA 288

PARTIES: Plaintiff: John Stewart Large
First Defendant: Christopher Higham as Executor for the Estate of the Late John Michael Large
Second Defendant: Maria Bernadette Large
Third Defendant: Lausanne P/L (as Trustee for the JML Superannuation Fund)

FILE NUMBER(S): SC 4997/07

COUNSEL: Plaintiff: Ms E Cohen
First & Third Defendant: Mr D Liebhold
Second Defendant: Mr N A Confos

SOLICITORS: Plaintiff: Dakin Law
First & Third Defendant: HWL Ebsworth Lawyers (Sydney agent for Zilkens & Co)
Second Defendant: Bray Jackson & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

TUESDAY 23 FEBRUARY 2010

4997/07 JOHN STEWART LARGE v CHRISTOPHER HIGHAM AS EXECUTOR FOR THE ESTATE OF THE LATE JOHN MICHAEL LARGE; MARIA BERNADETTE LARGE; AND LAUSANNE P/L (AS TRUSTEE FOR THE JML SUPERANNUATION FUND)

JUDGMENT

1 HIS HONOUR: John Michael Large (“the testator”) died in Sydney on Anzac Day 2006. He left a will dated 16 March 2006. The testator had been a successful pharmacist, a business entrepreneur and an important actor in the Australian motor racing industry. He married three times.

2 His first wife was Jocelyn Fisher. They married in 1961 and had two children. The elder child was John Stewart MacKenzie Large (“the plaintiff”), who is the plaintiff in these proceedings. The plaintiff was born in November 1961 and was forty-eight at the time of trial. The younger boy Andrew, committed suicide at the age of 21 in May 1985. The testator and Jocelyn lived together in Tasmania. They separated in 1964. The testator left Tasmania in 1965 and moved to Perth, Western Australia.

3 In 1972, the testator met and married Maria, the second defendant in these proceedings. Apart from a short time apart during the period 1982-1984 they lived together until 1991 when they…

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 Large v Higham

Details

AGLC: Large v Higham [2010] NSWSC 104
Case: [2010] NSWSC 104
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case before the court involved a dispute over the adequacy of provisions made for the plaintiff in the will of the deceased. The plaintiff, the son of the deceased, contended that the will did not adequately provide for his maintenance, education, and advancement in life. The court was tasked with determining what provision should be made to ensure the plaintiff's future security. The matter was uncontested, with both parties agreeing that the provisions made for the plaintiff were insufficient, but they differed on the appropriate level of support.

The legal issues that arose centred on the interpretation and application of the statutory provisions concerning testamentary dispositions. Specifically, the court had to decide what constituted "proper provision" for the plaintiff's maintenance, education, and advancement in life, given the particular circumstances of the case. This included considering the plaintiff's limited prospects for employment and the potential legacy intended to further his advancement. The court was required to balance these factors against the expressed wishes of the testator as set out in the will.

In reaching its decision, the court examined the statutory framework and relevant case law to determine the appropriate level of support. It considered the plaintiff's limited employment prospects, the nature of the legacy intended for him, and the overall circumstances of the estate. The court concluded that the plaintiff was entitled to a provision that would ensure his reasonable maintenance, education, and advancement in life, taking into account the specific circumstances and the testator's overall intentions. The court ordered that a specific sum be paid to the plaintiff to meet these needs.

Orders