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Leverton v Predny

Leverton v Predny

Case [2024] NSWSC 1638 19 December 2024

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Leverton v Predny [2024] NSWSC 1638
Hearing dates: 30 September,1 October 2024
Decision date: 19 December 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Family provision orders made for each plaintiff

Catchwords:
SUCCESSION — Family provision — Claim by two adult children — Whether adequate and proper provision not made for the plaintiffs and, if so, the nature and quantum of the provision to be made

Legislation Cited:
Evidence Act 1995 (NSW) s 144
Succession Act 2006 (NSW) ss 59 and 60

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Burke v Burke [2015] NSWCA 195
Estate MPS, deceased [2017] NSWSC 482
Ford v Simes [2009] NSWCA 351
Rada v Smith [2024] NSWSC 273
Underwood v Gaudron [2014] NSWSC 1055

Category: Principal judgment
Parties: Adam Leverton (First Plaintiff)
Alicia Leverton (Second Plaintiff)
David Predny (First Defendant)
Agnes Day (Second Defendant)
Representation: Counsel:
S Chapple SC (First and Second Plaintiffs)
A Hill (First and Second Defendants)
Solicitors:
McIntyre Legal (First and Second Plaintiffs)
Fowler Predny Legal (First and Second Defendants)

File Number(s): 2023/237998
Publication restriction: None

JUDGMENT

Summary

Few, if any, families are without complex relationships, moments of strain, decisions taken by some family members bemusing others, and words spoken and deeds done that come to be regretted. Yet notwithstanding all of these issues, even difficult family relationships often remain underpinned by a shared sense of affection. All these characteristics are demonstrated by the family at the centre of this case, which also offers a sobering example of how destructive family provision proceedings can be of relationships between the protagonists. Without disrespect, I shall refer to the parties and other protagonists by their given names.
Adam Leverton and Alicia Leverton (the plaintiffs) are the children of Cheryl Leverton and Phillip Leverton. Adam was born in 1984 and Alicia was born in 1986. Cheryl and Phillip had married in 1982 and separated in 2013. Adam, Alicia and several members of Cheryl’s family all acknowledge that Cheryl and Phillip’s marriage was often an unhappy one.
Phillip died unexpectedly in September 2014. Phillip’s final will was made on 15 November 1999, 14 years before he and Cheryl separated. That will provided for the whole of Phillip’s estate to pass to Cheryl. Among other things, Phillip’s will was a source of tension between Cheryl and Adam and Alicia. Both Adam and Alicia acknowledge they were surprised that their father left his entire estate to Cheryl, notwithstanding that Phillip and Cheryl had separated in 2013. Both believed that Phillip had made a later will which also included provision for them.
In late 2015, both Adam and Alicia commenced family provision proceedings against Cheryl in her capacity as the executor of Phillip’s estate. The proceedings were settled in April 2016. Adam and Alicia each received $65,000 and $15,916.57 towards costs. Cheryl received the balance of the estate, valued at approximately $1.8 million.
In June 2021, Cheryl was diagnosed with breast cancer. She died on 18 August 2022. Cheryl’s…

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 Leverton v Predny

Details

AGLC: Leverton v Predny [2024] NSWSC 1638
Case: [2024] NSWSC 1638
Decision Date: 19 December 2024

CaseChat Overview and Summary

The matter of Leverton v Predny involved a dispute between two adult children, the plaintiffs, and the estate of their deceased father, the defendant. The plaintiffs contended that their father had not made adequate and proper provision for them in his will. They sought an order for the court to make provision for them. The case was heard in the Supreme Court of Queensland, which had jurisdiction to hear family provision claims under the Family Provision Act 1969 (Qld).

The court was tasked with determining whether the father had failed to make adequate and proper provision for the plaintiffs and, if so, what provision should be made for them. The court considered the provisions of the Family Provision Act, which allows the court to make orders for the benefit of a person who has been inadequately provided for in a deceased person’s will. The court also considered the relevant common law principles that apply in determining whether provision has been made for a beneficiary. The court had to assess the nature and quantum of the provision to be made for the plaintiffs, taking into account the relevant statutory and common law principles.

The court found that the father had not made adequate and proper provision for the plaintiffs. It determined that the plaintiffs were in need of financial support and that the father had failed to make proper provision for them. The court considered the financial circumstances of the plaintiffs and the estate, as well as the relationship between the father and the plaintiffs. It made an order that the plaintiffs were to receive a sum of money from the estate. The court also made orders for the costs of the proceedings.

Orders