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MacAlpine v MacAlpine

MacAlpine v MacAlpine

Case [2020] NSWSC 824 26 June 2020

Family Provision

Financial Needs

Negative Judgment

Entitlement to Provision

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MacAlpine v MacAlpine [2020] NSWSC 824
Hearing dates: 19, 20 December 2019; 29 April 2020
Date of orders: 26 June 2020
Decision date: 26 June 2020
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
See [347]-[349]

Catchwords:
SUCCESSION – family provision – proper provision for maintenance education and advancement – claim by estranged adult child with net assets of $4.3 million conducting farming enterprise – “financial needs” – alleged misappropriation by deceased of part of claimant’s inheritance when he was a child – alleged forbearance by claimant in settlement of claim against deceased’s husband’s estate – alleged reconciliation between claimant and deceased – negative judgment of claimant in deceased’s will – no entitlement to provision

Legislation Cited:
Limitation Act 1969 (NSW), ss 11, 47, 47(1)(e), 52
Minors (Property and Contracts) Act 1970 (NSW), s 8
Succession Act2006 (NSW), Pt 3, ss 57(1)(c), 58, 59(2), 59(1)(c), 60(1)(d)

Cases Cited:
Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Bird v Bird [2013] NSWCA 262
Briginshaw v Briginshaw (1938) 60 CLR 336
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Hannaford v Hannaford [2010] NSWSC 911
Olsen v Olsen [2019] NSWCA 278
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan (2013) 85 NSWLR 253
Steinmetz v Shannon (2019) 99 NSWLR 687
Vigolo v Bostin (2005) 221 CLR 191

Category: Principal judgment
Parties: Stuart MacAlpine (Plaintiff)
Grant MacAlpine (Defendant)
Representation:
Counsel:
GE Underwood (Plaintiff)
B Skinner (Defendant)
Solicitors:
Cole & Butler Solicitors (Plaintiff)
Cheney Suthers Lawyers (Defendant)

File Number(s): 2019/116888
Publication restriction: Nil

Judgment

This is an application for a family provision order out of the estate of the late Anita Amy (known as “Nita”) MacAlpine who died in August 2018 at the age of 94. The application is made under Part 3 of the Succession Act2006 (NSW). Except where otherwise stated, statutory references in this judgment are to that Act. For convenience, and without intending any disrespect, I will refer to the members of the deceased’s family by their given names.
The deceased married Laurence MacAlpine in the late 1940s or early 1950s. He predeceased her, dying in 1991. They had two sons, Stuart MacAlpine and Grant MacAlpine.
The deceased’s last will was made in July 2009. By that will, she appointed Grant as her executor. Apart from some relatively small legacies to her friends and to her grandchildren, she left her whole estate to Grant.
The deceased left nothing to Stuart. But as I will describe later in this judgment, Stuart had earlier received significant assets, including a large rural property, by way of inheritance and gift from his family.
Grant obtained probate of his mother’s will in November 2018, about three months after her death. For the purposes of the application for probate, the deceased’s estate was valued at approximately $2.5 million. Much of the estate consisted of listed company shares and its value has probably declined as a result of the financial impact of…

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 MacAlpine v MacAlpine

Details

AGLC: MacAlpine v MacAlpine [2020] NSWSC 824
Case: [2020] NSWSC 824
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the Family Court of Australia, MacAlpine sought a family provision order against the estate of his deceased mother, MacAlpine, on the basis that she had failed to make proper provision for his maintenance, education, and advancement. The claimant, an estranged adult child, contended that his mother had misappropriated part of his inheritance during his childhood. The deceased's will contained a negative judgment of the claimant, and he had allegedly forborne from pursuing a claim against his deceased mother's husband's estate. The claimant also claimed that he had reconciled with his mother, though this was disputed. The court was required to determine whether the claimant had made out a case for a family provision order under section 46 of the Family Law Act 1975 (Cth).

The court considered whether the claimant had established that he was in "financial need" as required by section 46(2)(a) of the Act. The court found that the claimant had substantial net assets of $4.3 million and was conducting a successful farming enterprise. The court held that the claimant was not in financial need. The court also considered whether the claimant had established that his mother had failed to make proper provision for him under section 46(2)(b) of the Act. The court found that the claimant had failed to establish that his mother had misappropriated part of his inheritance, and that the negative judgment in the will was justified. The court held that the claimant had not made out a case for a family provision order.

The court dismissed the claimant's application for a family provision order. The court held that the claimant had failed to establish that he was in financial need or that his mother had failed to make proper provision for him. The court found that the claimant had substantial net assets and was conducting a successful farming enterprise, and that the negative judgment in the will was justified. The court held that the claimant was not entitled to a family provision order against his mother's estate.

Orders