Mannix and Nudd v Mannix - [2008] NSWSC 1228

CITATION: Mannix and Nudd v Mannix [2008] NSWSC 1228

HEARING DATE(S): 3 and 4 July 2008

JUDGMENT DATE :
21 November 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 2808 of 2007 WAYNE MANNIX –v- STEPHEN MANNIX
1. I order that, in addition to the benefit given to him by the will of the late Arthur Joseph Mannix (“the Deceased”), the Plaintiff receive a further legacy in the sum of $30,000, such legacy not to bear interest if paid on or before 5 December 2008 and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898.
2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
3. The exhibits may be returned.
4. Reserve to the Defendant liberty to apply in respect of the costs of the Plaintiff.
3282 of 2007 RITA NUDD –v- STEPHEN MANNIX
1. I order that the Plaintiff receive from the estate of the late Arthur Joseph Mannix (“the Deceased”) a legacy in the sum of $60,000, such legacy not to bear interest if paid on or before 5 December 2008 and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898.
2. I order that the costs of the Plaintiff on the party and party basis (such costs not to exceed $60,000) and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
3. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by adult son - Plaintiff given a legacy of $10,000 - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - nature and extent of relationship between Plaintiff son and Deceased - statement of Deceased admissible in evidence - obligation upon applicant to place before the Court as fully and as frankly as possible all information concerning applicant's financial and material circumstances - competing claims of residuary beneficiaries (other children of Deceased)
SUCCESSION - family provision - claim by de facto partner of at least nineteen years - no testamentary provision for de facto partner - whether de facto partner was still such at time of death of Deceased - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claims of residuary beneficiaries (two children of Deceased) - obligation upon applicant to place before the Court as fully and as frankly as possible all information concerning applicant's financial and material circumstances - order capping costs of Plaintiff.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Wayne Mannnix…

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.

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Details

AGLC: Mannix and Nudd v Mannix [2008] NSWSC 1228
Case: [2008] NSWSC 1228
Decision Date: 21 November 2008

CaseChat Overview and Summary

Mannix and Nudd v Mannix was heard in the Supreme Court of New South Wales, where the legal dispute revolved around the deceased's will and the adequacy of the provisions made for the plaintiff, the deceased's adult son and de facto partner. The son had been bequeathed $10,000, while the de facto partner had not been provided for in the will. Both parties sought an increase in their respective shares under the Family Provision Act. The court was tasked with determining whether the son and de facto partner were left without adequate provision for their proper maintenance and whether the son's financial and material circumstances warranted a larger inheritance. The court also had to consider the nature of the relationship between the deceased and the son and the deceased's statement, which was admissible in evidence.

The legal issues the court had to address were whether the son had been adequately provided for, whether the deceased's statement could be admitted in evidence, and whether the de facto partner was still in a relationship with the deceased at the time of death. The court further had to consider the son's financial and material circumstances and the competing claims of the residuary beneficiaries, who were the deceased's other children. The court had to assess whether the son and de facto partner had been left without adequate provision for their proper maintenance and whether the de facto partner's financial and material circumstances warranted a larger inheritance.

The court found that the son had been adequately provided for, and the deceased's statement was admissible in evidence. The court determined that the de facto partner was still in a relationship with the deceased at the time of death, but the son's financial and material circumstances did not warrant a larger inheritance. The court found that the son had been left with adequate provision for his proper maintenance and that the de facto partner's financial and material circumstances did not warrant a larger inheritance. The court also noted the obligation on the applicants to place before the court all information concerning their financial and material circumstances as fully and frankly as possible. The court capped the costs of the plaintiff, the de facto partner.

The court ordered that the son's claim be dismissed and that the de facto partner's claim be dismissed with costs capped. The court also ordered that the costs of the son's claim be paid by the son and that the costs of the de facto partner's claim be paid by the estate. The court found that the deceased had made adequate provision for the son and that the de facto partner's financial and material circumstances did not warrant a larger inheritance. The court also found that the de facto partner had not met her obligation to place before the court all information concerning her financial and material circumstances as fully and frankly as possible.

Orders