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Mann v Starkey

Mann v Starkey

Case [2008] NSWSC 263 28 March 2008

Family Provision

Maintenance

Adequate Provision

Financial Circumstances

Succession Law

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CITATION: Mann v Starkey [2008] NSWSC 263

HEARING DATE(S): 13/03/08, 25/03/08

JUDGMENT DATE :
28 March 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Order that the summons be dismissed; 2. order that the plaintiff pay the defendant’s costs; 3. exhibits may be returned after 28 days

CATCHWORDS: SUCCESSION - Family provision and maintenance - whether testator made adequate provision for applicant - unsatisfactory evidence of applicant's financial circumstances.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Guardianship Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: Fraser v Venables (Supreme Court of New South Wales, McLaughlin M, 30 September 1998, unreported); BC9805011
Draper v Nixon [1999] NSWSC 629
Bennett v Bennett [2001] NSWSC 987
Ernst v Ryf [2001] NSWSC 1167
Van Ooyen v O’Driscoll [2002] NSWSC 445
Zaleski v Patterson [2005] NSWSC 54
Troy v Slede [2005] NSWSC 1080
Wheatley v Wheatley [2006] NSWCA 262
Briginshaw v Briginshaw (1938) 60 CLR 336
Singer v Berghouse (1994) 181 CLR 201
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

PARTIES: Ian Graeme Mann v Elizabeth Gayle Starkey

FILE NUMBER(S): SC 1364/07

COUNSEL: Plaintiff: P J Livingstone
Defendant: K Ottesen

SOLICITORS: Plaintiff: Lane & Lane
Defendant: David Jackson & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
FPA RUNNING LIST

WHITE J

Friday, 28 March 2008

1364/07 Ian Graeme Mann v Elizabeth Gayle Starkey

JUDGMENT

1 HIS HONOUR: This is an application under s 7 of the Family Provision Act 1982 (NSW) for an order for provision in favour of the plaintiff out of the estate or notional estate of the late Eric Alexander Mann.

2 Eric Alexander Mann died on 22 February 2006 aged 97. He was survived by two children. The plaintiff, his son, is now aged 70. His daughter, the defendant, is aged 61. The deceased was very close to his daughter’s son, Mr Christopher Starkey. The deceased made his last will on 11 August 2005. He divided his estate between his daughter (the defendant), as to a 65 percent share; his grandson (Christopher Starkey), as to a 17.5 percent share; and to his son (the plaintiff), as to a 17.5 percent share. The deceased lived in his own house until 15 March 2005, that is, until he was 96. He then moved to hostel care and his Dover Heights property was sold. After the sale the deceased gave his grandson, Christopher Starkey, $500,000 from the proceeds.

3 On Mr Mann’s death, his assets amounted to $1,524,886. He had no liabilities and the funeral expenses had been prepaid or were paid by the War Veterans’ Association and the Maroubra Junction RSL Sub-Branch (Mr Mann had served in the Middle East and New Guinea during the Second World War).

4 The deceased had made two earlier wills on 30 March 2005 and 31 May 2005. In his will of 30 March 2005 he left 55 percent of his estate to the defendant, 5 percent to Christopher Starkey and 40 percent to…

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 Mann v Starkey

Details

AGLC: Mann v Starkey [2008] NSWSC 263
Case: [2008] NSWSC 263
Decision Date: 28 March 2008

CaseChat Overview and Summary

Mann v Starkey is a case before the court concerning a family provision and maintenance dispute. The applicant, Mann, sought to challenge the validity of the will of the deceased, arguing that the testator, Starkey, had not made adequate provision for him. The primary issue was whether the testator had indeed made adequate provision for the applicant given the financial circumstances presented by the applicant. The court was tasked with determining if the applicant had provided sufficient evidence to substantiate his claim.

The court examined the evidence presented by the applicant regarding his financial situation. It was found that the evidence was unsatisfactory and lacked the necessary detail to form a reliable assessment of the applicant's financial needs. The court emphasised the importance of clear and comprehensive evidence in such matters, as it is crucial for the court to make an informed decision regarding the adequacy of provision made by the testator. Given the unsatisfactory nature of the evidence, the court ruled that the applicant had not met the burden of proof required to substantiate his claim.

As a result, the court dismissed the application, affirming that the testator had made adequate provision for the applicant based on the available evidence. The court's decision was rooted in the principle that family provision claims require clear and compelling evidence to support the applicant's position. The final orders of the court were that the application be dismissed, and no further orders were made in favour of the applicant.

Orders