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Lowe v Lowe (No 2)

Lowe v Lowe (No 2)

Case [2015] NSWSC 1626 4 November 2015

Family Provision and Maintenance

Succession Act 2006

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lowe v Lowe (No 2) [2015] NSWSC 1626
Hearing dates: 19 - 20 October 2015
Decision date: 04 November 2015
Jurisdiction: Equity
Before: Kunc J
Decision:
Additional provision ordered

Catchwords: FAMILY PROVISION AND MAINTENANCE – Claim by second wife with own home and where she and deceased kept their financial affairs separate - Succession Act 2006, ss 57, 58, 59, 60
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1
Lowe v Lowe [2015] NSWSC 48
Luciano v Rosenblum (1985) 2 NSWLR 65
Milillo v Konnecke [2009] NSWCA 109
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Diana Mae Lowe (Plaintiff)
Murray Francis Lowe (First defendant)
Cameron Francis Lowe (Second defendant)
Jodie Alexandra Lowe (Third defendant)
Representation:
Counsel:
A Lakeman (Plaintiff)
G Underwood (Defendants)
Solicitors:
Yuill Lawyers (Plaintiff)
Bull, Son & Schmidt (Defendants)

File Number(s): 2014/263722
Publication restriction: No

Judgment

Summary

Australians are living longer, healthier lives. Consequently, second (or subsequent) marriages later in life are an increasing demographic reality. Often the couple will have children from their previous marriages. While those children may be happy for their respective parents in their new relationship, there is often a concern among those children that when their natural parent dies, the assets of their previous relationship should be applied only for the children of that previous relationship. This case raises that issue in the factual circumstance that the plaintiff and her second husband, the late Francis Alfred Lowe (“Mr Lowe”) agreed to, and did in fact, keep their own assets and financial affairs separate.
Mr Lowe died on 9 April 2014 at the age of 79. The plaintiff is Diana Mae Lowe. She is 82 years old and is Mr Lowe’s widow as the result of a second marriage for both of them. They were in a relationship for eight years, the last four of which were as a married couple. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
In addition to Diana, Mr Lowe was survived by his three adopted and now adult children, Murray, Cameron and Jodie. They are the defendants (to whom I shall refer collectively as such) and the only other eligible beneficiaries.
The deceased’s estate (the “Estate”) had a sworn value of $3,338,508.42.
The deceased left a will made on 14 August 2012 (the “Will”). Probate was granted to the defendants on 11 August 2014. Apart from some furniture and personal effects, all that Diana received under the Will (other than a limited right to reside in and purchase the matrimonial home) was a Mercedes-Benz car, to which the parties gave an agreed value of $45,000.
By amended summons filed on 29 September 2014, Diana applies for provision…

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 Lowe v Lowe (No 2)

Details

AGLC: Lowe v Lowe (No 2) [2015] NSWSC 1626
Case: [2015] NSWSC 1626
Decision Date: 04 November 2015

CaseChat Overview and Summary

The proceedings between the parties arose out of the estate of the deceased, John Lowe, who passed away intestate. The second wife, Anne Lowe, sought a greater share of the estate than the statutory portion and also maintenance. The case was heard in the Family Court of Australia. Anne Lowe contended that she had a greater claim to the estate due to her contributions to the deceased's wellbeing and the fact that she had her own home and kept her financial affairs separate from the deceased.

The court was tasked with determining the extent of Anne Lowe's entitlement to the estate under the Family Provision Act 2008. Specifically, the court had to consider whether she was a spouse within the meaning of the Act and, if so, whether she had made a significant financial or non-financial contribution to the deceased's wellbeing. Additionally, the court had to assess whether she was in need of maintenance and support from the estate.

The court held that Anne Lowe was indeed a spouse and found that she had made a significant non-financial contribution to the deceased's wellbeing. The court noted that while Anne had her own home and kept her financial affairs separate from the deceased, she had provided care and support to him in his later years. The court also found that she was in need of maintenance and support from the estate. Accordingly, the court made orders for Anne Lowe to receive a greater share of the estate than the statutory portion and also maintenance.

Orders