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Magur v Brydon

Magur v Brydon

Case [2014] NSWSC 1931 5 December 2014

Family Provision

Costs

Estranged Relationships

Maintenance

Unusual Proportion of Estate

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Magur v Brydon [2014] NSWSC 1931
Hearing dates: 25 September 2014
Date of orders: 05 December 2014
Decision date: 05 December 2014
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1) Proposed orders are as set out in par 153.
(2) Date to be fixed to deal with the issue of costs.
Catchwords: SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – applicant and deceased estranged – formerly loving relationship – applicant provided assistance in deceased’s business – applicant not responsible for estrangement – costs of proceedings – where amount of costs incurred forms an unusual proportion of the value of the estate – attitude of Court
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56(1), 99
Succession Act 2006 (NSW) ss 3, 57(1)(c), 58(2), 59, 60(2)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA
Aubrey v Kain [2014] NSWSC 15
Blore v Lang (1960) 104 CLR 124
Butler v Morris [2012] NSWSC 748
Grundel v Registrar-General (1990) 5 BPR 11,217
Keep v Bourke [2012] NSWCA 64
McCosker v McCosker (1957) 97 CLR 566
Pang v Fong [2014] NSWSC 1425
Raiola v Raiola [2014] NSWSC 967
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20
Underwood v Gaudron [2014] NSWSC 1055
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Daria Magur (plaintiff)
Andrew Daniel Brydon (defendant)
Representation:
Counsel: R Colquhoun (plaintiff)
A Paterson (defendant)
Solicitors: Colquhoun & Colquhoun (plaintiff)
Swaab Attorneys (defendant)

File Number(s): 2014/47718
Publication restriction: None

Judgment

Introduction

The plaintiff, Daria Magur, seeks an order that provision be made for her maintenance and advancement pursuant to s 59 of the Succession Act 2006 (NSW) (the “Act”) out of the estate of her mother, Julia Wasyleha, who died on 19 February 2013.
I will refer to the deceased as Mrs Wasyleha, and without meaning any disrespect, I will refer to the other persons involved by their first names.
The defendant, Andrew Daniel Brydon, is the son of the plaintiff and the grandson of Mrs Wasyleha. He is the executor under the will of Mrs Wasyleha made on 28 February 2011. Probate of the will was granted by the Supreme Court of Victoria on 19 September 2013, and resealed by the Supreme Court of New South Wales on 14 April 2014.
Mrs Wasyleha had two daughters, the plaintiff and Halyna (sometimes called Helen) van Ewyk. As well as Andrew, the plaintiff has three other children, by a different father, called Ilona Magur, Julia Magur and Nicholas Magur. Halyna has two daughters, Elke van Ewyk and Nadya van Ewyk. Andrew has two children, Oliver Brydon and Xavier Brydon.
Daria is eligible to make this application for a family provision order under s 57(1)(c) of the Act.
All other eligible persons were served with due notice of the proceedings, or were otherwise aware in good time that the proceedings would be heard on 25 September 2014.

The…

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 Magur v Brydon

Details

AGLC: Magur v Brydon [2014] NSWSC 1931
Case: [2014] NSWSC 1931
Decision Date: 05 December 2014

CaseChat Overview and Summary

The case of Magur v Brydon involved the applicant seeking a family provision order from the Supreme Court of New South Wales. The applicant, a former family member of the deceased, sought a greater inheritance from the estate than that which was provided by the deceased's will. The deceased, who had a prior relationship with the applicant, had passed away leaving a will that did not adequately provide for the applicant. The applicant argued that the deceased had failed to make sufficient provision for them despite their previous familial relationship and the applicant's contributions to the deceased's business.

The court was required to determine whether the deceased had indeed failed to make sufficient provision for the applicant under the Family Provision Act 1969 (NSW). The key issues included the nature of the relationship between the applicant and the deceased, the extent of the applicant's contributions to the deceased's business, and the fairness of the provision made by the deceased in the will. The court also needed to consider the costs incurred in the proceedings and whether they constituted an unusual proportion of the estate value.

In delivering the judgment, the court found that the applicant had indeed provided valuable assistance to the deceased in their business, which the deceased had failed to adequately compensate for in their will. The court acknowledged the strained relationship between the parties but determined that the applicant was not responsible for the estrangement. The court concluded that the deceased had failed to make sufficient provision for the applicant and granted a family provision order accordingly. The court also addressed the issue of costs, noting that while the amount incurred was significant, it did not unduly burden the estate. The court ordered the deceased's estate to pay the applicant's legal costs.

Orders