Macleay v Birchall - [1999] NSWSC 219

CITATION: Macleay v Birchall [1999] NSWSC 219

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3745/98

HEARING DATE(S): 23 November 1998
24 November 1998

JUDGMENT DATE:
23 March 1999

PARTIES :

John Valentine Macleay (P)
Sydney Frank Birchall (D)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. R. Taperell (P)
Mr. L. Ellison (D)

SOLICITORS: Baker Love (P)
Teece Hodgson & Ward (D)

CATCHWORDS: Family Provision; Claim by adult stepson; Whether plaintiff comes within paragraph (d) of definition of eligible person; Whether plaintiff was a member of a household of which deceased was a member; Whether plaintiff was dependent upon deceased; Events and circumstances occurring more than half a century ago; Inconsistent versions given by plaintiff; Plaintiff's evidence was unreliable; Limited contact between plaintiff and deceased during last forty-four years of deceased’s life; Factors warranting the making of the application; Very substantial gifts made to plaintiff by his late father; Obligation upon an applicant to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances; Whether plaintiff has done so; Present needs of plaintiff ; Wish list presented by plaintiff

ACTS CITED: Family Provision Act 1982
Testator's Family Maintenance and Guardianship of Infants Act 1916

CASES CITED: Re Fulop (1987) 8 NSWLR 679
Churton v Christian (1988) 13 NSWLR 241

DECISION: See Paragraph 98

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Tuesday, 23 March 1999
3745 of 1997 JOHN VALENTINE MACLEAY -v-
SYDNEY FRANK BIRCHALL
1 MASTER: These are proceedings under the Family Provision Act 1982.
2 By summons filed on 25 August 1997, the plaintiff John Valentine Macleay seeks an order that further provision be made for him for his maintenance and advancement in life out of the estate of the late Doris Myra Macleay (to whom I shall refer as “the deceased”). (Subsequently, on 18 September 1997, an amended summons, seeking identical relief, was filed on behalf of the plaintiff. The reason for the filing of the amended summons was in order to correct the wrong spelling of the surname of the defendant appearing in the summons.)
3 The deceased died on 23 August 1996, aged ninety. She left a will dated 22 April 1996 and a codicil thereto dated 30 April 1996, probate whereof was on 17 March 1997 granted to Sydney Frank Birchall, the executor named in such will (who is the defendant to the present proceedings).
4 The assets of the estate included the former residence of the deceased at 21 King William Street, Greenwich (which was sold in December 1997 for $550,000) and a taxi licence valued by the Department of Transport at $261,982. After payment of liabilities totalling about $12,400, and making allowance for the costs of the present proceedings (those of the plaintiff estimated to be about $31,000 and of the defendant estimated to be about $29,000), together with further costs relating to the application for probate, administration expenses, costs on the sale of estate realty (totalling $44,300), the defendant estimates that…

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 Macleay v Birchall

Details

AGLC: Macleay v Birchall [1999] NSWSC 219
Case: [1999] NSWSC 219
Decision Date: 23 March 1999

CaseChat Overview and Summary

The case of Macleay v Birchall involved a claim by an adult stepson, Macleay, against the estate of his deceased stepmother, Birchall. The dispute was centred around the eligibility of Macleay for a family provision order under the relevant statute. The court had to decide if Macleay qualified as an eligible person under the definition, specifically whether he was a member of the household of which the deceased was a member, and if he was dependent upon the deceased. Additionally, the court had to consider the events and circumstances from over half a century ago, the credibility of Macleay's evidence, and the limited contact he had with the deceased during the latter's life. The court also examined the substantial gifts Macleay received from his late father and the obligation of the applicant to fully disclose their financial and material circumstances.

The legal issues before the court included the interpretation of the statutory definition of an eligible person, the relevance of past household membership and dependency, and the weight to be given to evidence that was inconsistent or unreliable. The court had to assess the evidence provided by Macleay, considering the significant time that had elapsed since the events in question and the lack of contact between him and the deceased. It also had to determine whether the substantial gifts received by Macleay from his late father warranted an application for a family provision order. Finally, the court considered the present financial needs of Macleay and the comprehensiveness of the information he had presented to the court.

In its reasoning, the court concluded that Macleay did not meet the criteria for being an eligible person under the statute. The court found that the plaintiff's evidence was unreliable and inconsistent, and that there was minimal contact between Macleay and the deceased during the last forty-four years of the deceased's life. The court also noted the very substantial gifts made to Macleay by his late father and held that the plaintiff had not fully and frankly disclosed all relevant information concerning his financial circumstances. Based on these findings, the court rejected the application for a family provision order, noting that the present needs of Macleay did not warrant a distribution from the estate. The court was also critical of the wish list presented by Macleay, which it deemed speculative and not based on reasonable needs.

The final orders of the court were that the application for a family provision order by Macleay was dismissed. The court did not make any order for the distribution of the estate to Macleay, finding that there were no grounds to do so under the circumstances presented.

Orders