Larkin v Leech-Larkin - [2017] NSWSC 1418

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Larkin v Leech-Larkin [2017] NSWSC 1418
Hearing dates: 19, 20, 21 July 2017; final written submissions received 14 August 2017
Date of orders: 20 October 2017
Decision date: 20 October 2017
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
Proceedings dismissed

Catchwords: Succession – family provision – estate left to son of deceased – plaintiff older son of deceased – mature and independent adult – no provision made for plaintiff – plaintiff estranged from deceased – unreasonableness of deceased’s attitude towards plaintiff – beneficiary’s contribution to assets and welfare of deceased – beneficiary’s expectation of inheriting property – financial mismanagement – whether provision for plaintiff is “proper”
Legislation Cited: Succession Act 2006 (NSW), ss 57(1)(c), 59(1)(c), 59(2)
Cases Cited: Bruce v Greentree [2015] NSWSC 1611
Evans v Braddock [2015] NSWSC 249
Kohari v NSW Trustee and Guardian (No 2) [2017] NSWSC 1080
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Stott v Cook (1960) 33 ALJR 447
Category: Principal judgment
Parties: Julian Dee Larkin (Plaintiff)
Lucien Francesco Leech-Larkin (Defendant)
Representation:
Counsel:
MB Evans (Plaintiff)
TJ Morahan (Defendant)
Solicitors:
Cohen & Krass (Plaintiff)
MH Peoples & Co (Defendant)

File Number(s): 2016/54177
Publication restriction: Nil

Judgment

This is an application for provision out of the estate of the late Wilma June (known as “June”) Leech-Larkin. The plaintiff, Julian Dee Larkin, is her son. The deceased was born in July 1926. In November 1948 she married Barnett Larkin. In March 1970 they separated. He died shortly after property settlement proceedings between them were finalised in 1983.
The deceased and Barnett Larkin had six children, with four sons surviving into adulthood. The plaintiff is the eldest son; he was born in June 1949. The defendant, Lucien Francesco Leech-Larkin, is the second son, who was born in October 1952. There are two younger sons, Vincent Aquinas William Leech-Larkin and Adrian Justin Leech-Larkin. For convenience and without disrespect, I will refer to each of the deceased’s sons by his Christian name.
The substantial asset in the deceased’s estate is a property at Springwood in the lower Blue Mountains which before the deceased’s death consisted of two lots, numbered 3 and 4. A house stands on lot 3. The rest of lot 3 and lot 4 had been developed as an extensive French-style garden known as “Francesca Park”. The house was the former matrimonial home of the deceased and Barnett Larkin, and was the deceased’s home after they separated. Lucien has also lived there for nearly all his life.
The deceased was diagnosed with cancer in 2012 and died in February 2015 at the age of 88. By her last will, made in March 2013, she left her estate to Lucien. Neither Vincent nor Adrian has made any claim against the estate. Probate of the will was granted to Lucien in February 2016.
Since the grant of probate, lot 4 has been sold. Lot 3 remains unsold. Lucien continues…

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 Larkin v Leech-Larkin

Details

AGLC: Larkin v Leech-Larkin [2017] NSWSC 1418
Case: [2017] NSWSC 1418
Decision Date: 20 October 2017

CaseChat Overview and Summary

The case of Larkin v Leech-Larkin involved a dispute concerning the distribution of the estate of a deceased person, who left his estate to his son, Leech-Larkin, excluding his older son, the plaintiff, Larkin. The dispute came before the Supreme Court of New South Wales, which had to determine whether the deceased's decision to exclude Larkin from his estate was unreasonable. Larkin argued that his exclusion was unjust due to his estrangement from his father, his contributions to the deceased's assets and welfare, and his expectation of inheriting a portion of the estate.

The legal issues before the court were whether the deceased's decision was unreasonable and whether the provision for Leech-Larkin was "proper" under the Family Provision Act. The court needed to consider the nature of the relationship between the deceased and Larkin, the contributions made by Larkin, and the deceased's financial mismanagement. The court also needed to weigh the deceased's unreasonable attitude towards Larkin against his expectations of inheriting the property.

The court found that the deceased's decision to exclude Larkin was unreasonable, given the strained relationship, Larkin's contributions, and the deceased's financial mismanagement. The court held that the deceased's attitude towards Larkin was unreasonable, and Larkin's expectation of inheriting property was reasonable. The court concluded that the provision for Leech-Larkin was not proper, and an order was made for a fair and reasonable provision to be made for Larkin from the estate.

Orders