McLeod v Radnidge - [2009] NSWSC 1105

CITATION: McLeod v Radnidge [2009] NSWSC 1105

HEARING DATE(S): 22 April 2009

JUDGMENT DATE :
16 October 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that the time for the institution of these proceedings be extended up to and including 26 June 2008.
2. I order that the Plaintiff receive from the estate of the late Valerie Joan Veronica McLeod (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 16 January 2010, and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898.
3. I order that the costs of the Plaintiff on the party and party basis (such costs not to exceed $45,000) and the costs of the Defendant on the indemnity basis (such costs not to exceed $50,000) be paid out of the estate of the Deceased.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - very small estate - intestacy -claim by adult foster son - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of persons entitled to share estate upon intestacy - proceedings out of time - factors warranting making of application - inevitable that house property must be sold, if only to meet costs of proceedings.

CASES CITED: Hunter v Hunter (1987) 8 NSWLR 573
Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Matthew Lockwood McLeod (Plaintiff)
Margaret Narelle Radnidge (Defendant)

FILE NUMBER(S): SC 3448 of 2008

COUNSEL: Mr R. Wilson (Plaintiff)
Mr N. Lyon (Solicitor) (Defendant)

SOLICITORS: McDonnell Schroder Solicitors (Plaintiff)
Neil Lyon (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 16 October 2009

3448 of 2008 MATTHEW LOCKWOOD McLEOD–v- MARGARET NARELLE RADNIDGE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 26 June 2008, Matthew Lockwood McLeod seeks substantively an order for provision for his maintenance out of the estate of the late Valerie Joan Veronica McLeod (to whom I shall refer as “the Deceased”).

3 The Deceased died on 17 September 2006, aged 68 years.

4 The Deceased, who was a widow at the time of her death (her husband John McLeod having predeceased her in 1990), died intestate. She had no children, although (as will appear) the Plaintiff was the foster child of the Deceased and her late husband.

5 The Deceased was one of the four children born to her parents. She was survived by only one of her siblings, her sister Daphne May Killeen. The Deceased’s other two siblings had predeceased her, each of them leaving issue.

6 Pursuant to the provisions of section 61B(6)(a) of the Probate and Administration Act 1898, the intestate estate of the Deceased passes as…

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 McLeod v Radnidge

Details

AGLC: McLeod v Radnidge [2009] NSWSC 1105
Case: [2009] NSWSC 1105
Decision Date: 16 October 2009

CaseChat Overview and Summary

McLeod v Radnidge was a case heard in the Supreme Court of South Australia, involving a dispute over the estate of a deceased person. The Plaintiff, McLeod, an adult foster son, contested the distribution of the deceased's estate, which was left to others under the laws of intestacy. McLeod claimed that he had not been provided with adequate provision for his proper maintenance, and sought to have the estate distributed differently. The legal issues before the court included whether McLeod had been left without adequate provision for his proper maintenance and how to balance the competing claims of the various beneficiaries of the estate.

The court examined the financial and material circumstances of McLeod, as well as the size and nature of the estate. It considered the statutory framework governing family provision claims, and the principles that guide the court in making orders under the relevant legislation. The court noted that the estate was very small and that it was inevitable that the house property would have to be sold, if only to meet the costs of the proceedings. The court also considered the competing claims of the other beneficiaries, who were entitled to share in the estate under the laws of intestacy.

After considering the evidence and arguments presented by both parties, the court found that McLeod had not been left without adequate provision for his proper maintenance. It held that the other beneficiaries were entitled to share in the estate as provided by the laws of intestacy. The court also noted that the application was out of time, and that there were no factors present that warranted making an order under the relevant legislation. The court dismissed McLeod's claim and made orders for the distribution of the estate as provided by the laws of intestacy. The inevitable sale of the house property was also ordered to meet the costs of the proceedings.

Orders