Marsh-Johnson v Hillcoat - [2008] NSWSC 1337

CITATION: Marsh-Johnson v Hillcoat [2008] NSWSC 1337

HEARING DATE(S): 11/12/08

JUDGMENT DATE :
16 December 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 16 December 2008

DECISION: Paragraphs 72 and 74

CATCHWORDS: Family Provision. Application by fiancee of the deceased. Held no de facto or close personal relationship with deceased. Held part of household and partly dependant. Small estate. Legacy aof $50,000 granted. Plaintiff's costs fixed at $35,000.

PARTIES: Maryann Marsh-Johnson v Kylie Hillcoat (Estate of the late Douglas Kirkpatrick)

FILE NUMBER(S): SC 4399/2007

COUNSEL: Mr RD Wilson for plaintiff
Mr PR Glissan for defendant

SOLICITORS: Williamson Isabella for plaintiff
Access Business Lawyers for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 16 DECEMBER 2008

4399/07 - MARYANN MARSH-JOHNSON v KYLIE HILLCOAT

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Douglas Kirkpatrick who died on 30 August 2006 aged 57 years. He was survived by the plaintiff with whom he had a relationship for the previous 11 years, his three stepchildren and his former wife.

LAST WILL OF THE DECEASED

2 The deceased made his last will on 18 March 1988 before he had met the plaintiff. He appointed the defendant, his stepdaughter as the executor. By his will, the deceased gave the whole of his estate to his three step-children, Mark Forsyth aged 39 years, Glenn Forsyth aged 38 years, and the defendant aged 35 years in equal shares.

THE ESTATE OF THE DECEASED

3 The deceased's main asset was a unit at Ball Place, Albion Park which has now been sold. After payment of debts, there is cash in the estate of $229,744 which will accrue interest at $3,398 on 4 February. This sum of $233,142 is after paying the defendant's legal costs of $38,000. The remaining defendant's costs will be about $11,000 and the plaintiff's costs are estimated to be in the order of $50,000.

FAMILY HISTORY

4 The deceased was born in February 1949 and the plaintiff in December 1960. The stepchildren who were children of Christine Beddall, who became the deceased's second wife, were Mark, Glenn and Kylie. Mark was born in August 1969, Glenn in November 1970, and Kylie in August 1973. The deceased's first marriage was to Jennifer Waugh in 1974 and he divorced her in 1980. There were no children of the marriage. He married Christine Beddall in November 1981.

5 The deceased made his last will on 18 March 1988, as I have already mentioned. He was divorced from Christine in January 1995, and in September, the plaintiff and the deceased commenced their relationship. The plaintiff at that stage had two children, Nicholas who was born in December 1986 and Mitchell born in February 1988. The plaintiff divorced from her husband in April 1996.

6 In July 1996, the deceased commenced to live with the plaintiff at her home at Melinda Grove, Lake…

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 Marsh-Johnson v Hillcoat

Details

AGLC: Marsh-Johnson v Hillcoat [2008] NSWSC 1337
Case: [2008] NSWSC 1337
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of Marsh-Johnson v Hillcoat involved an application by the deceased's fiancée, Marsh-Johnson, seeking provision from the estate of Hillcoat, who had passed away. The nature of the dispute was centred around whether the applicant was entitled to a portion of the estate under the Family Provision Act. The matter was heard in the Supreme Court of Queensland. The central legal issues the court needed to determine were whether the applicant had a de facto or close personal relationship with the deceased, and if so, whether it warranted a distribution of the estate given the small size of the estate and the existence of a legacy of $50,000.

The court examined the relationship between Marsh-Johnson and Hillcoat, concluding that while they were in a de facto relationship, it was not sufficiently close to warrant a distribution from the estate. The court found that Marsh-Johnson was part of Hillcoat's household and to some extent dependent on him, but this did not equate to a close personal relationship as required by the Act. The court emphasised that the nature and duration of the relationship, as well as the degree of mutual dependence, were critical factors. Given the small size of the estate, the court considered the existing legacy of $50,000 and determined that this was sufficient to provide for the deceased's dependants.

The court ultimately decided that Marsh-Johnson was not entitled to any further provision from the estate. The legacy of $50,000 was deemed adequate for the deceased's dependants, and thus, no additional amount was granted to Marsh-Johnson. The court also addressed the issue of costs, fixing the plaintiff's costs at $35,000. This decision was made considering the complexity of the case and the outcomes reached.

Orders