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Limberger v Limberger; Oakman v Limberger

Limberger v Limberger; Oakman v Limberger

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Case Copied 6 May 2021 50 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Hearing dates: 8-11 March 2021
Date of orders: 6 May 2021
Decision date: 06 May 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons

Catchwords:
SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will

Legislation Cited:
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Cases Cited:
Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176
Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100
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
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (No 2) [2015] NSWCA 195
Camden v McKenzie [2007] QCA 136
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009)

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.

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Details

Case: [2021] NSWSC 474
Decision Date: 06 May 2021

CaseChat Overview and Summary

In the case of Limberger v Limberger; Oakman v Limberger, the plaintiffs, two adult children of the deceased, sought provision from their father's estate under the Family Provision provisions of Chapter 3 of the Succession Act. The deceased had left no provision for the adult son, and only limited provision for the adult daughter. Both plaintiffs argued that they were left without adequate provision for their proper maintenance and advancement in life. The deceased's will outlined reasons for not providing for the adult son, citing estrangement, and for providing limited provision for the adult daughter, citing periods of estrangement. The deceased's estate was substantial, with 50% passing to the defendant and the balance to the grandchildren of the deceased.

The court was required to determine whether the plaintiffs were left without adequate provision for their proper maintenance and advancement in life. It needed to weigh the reasons for the deceased's actions, including the periods of estrangement and reconciliation before the deceased's death. The court also had to consider the competing claim of the defendant, who was entitled to 50% of the deceased's estate. The court had to decide if and to what extent provision should be made for each plaintiff and, if so, the appropriate amount.

The court found that the deceased's reasons for not providing for the adult son and providing limited provision for the adult daughter were not unreasonable, given the long periods of estrangement. However, the court found that the adult daughter was left without adequate provision for her proper maintenance and advancement in life. It concluded that the adult son's claim should be dismissed, but an order should be made in favour of the adult daughter. The court made an order for provision to be made for the adult daughter in lieu of the provision made for her in the deceased's will.

Orders