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Mears v Salier

Mears v Salier

Case [2014] NSWSC 934 15 July 2014

Family Provision Order

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mears v Salier [2014] NSWSC 934
Decision date: 15 July 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
See Paragraph 167 of these reasons for judgment.

Catchwords: SUCCESSION - Plaintiff, a child of the deceased, makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility - Deceased died intestate - Deceased married at the date of his death but cohabitation as husband and wife no longer than a few days - The widow of the deceased unable to be located despite efforts on part of the deceased and subsequently the Plaintiff - Widow and deceased separated for over 12 years at date of his death - Widow, if alive, entitled on intestacy - Independent solicitor appointed to represent the estate - Section 91 grant applied for to enable the Plaintiff's application to be dealt with - Whether family provision order should be made for Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision for the Plaintiff made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland, Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cameron v Cameron [2009] SASC 27
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
Curnow v Curnow [2014] NSWSC 896
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
In the Estate of the late Anthony Marras [2014] NSWSC 915
Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191
Luciano…

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 Mears v Salier

Details

AGLC: Mears v Salier [2014] NSWSC 934
Case: [2014] NSWSC 934
Decision Date: 15 July 2014

CaseChat Overview and Summary

The case of Mears v Salier involved a claim for a family provision order by the plaintiff, a child of the deceased, against the estate of the deceased who died intestate. The deceased had been married at the time of his death, but the marriage was of very short duration, with cohabitation as husband and wife lasting only a few days. The widow, who was entitled to the estate on intestacy if she were alive, could not be located despite the efforts of both the deceased and the plaintiff. The widow and the deceased had been separated for over twelve years at the time of his death. An independent solicitor was appointed to represent the estate, and section 91 of a relevant Act was applied for, enabling the plaintiff's application to be dealt with. The court was required to decide whether a family provision order should be made for the plaintiff and, if so, the nature and quantum of the provision.

The primary legal issue before the court was the determination of whether a family provision order should be made for the plaintiff and, if so, what the nature and quantum of that provision should be. The court needed to consider the statutory criteria for making such an order, including the plaintiff's reasonable financial needs and expectations, and the circumstances surrounding the deceased's estate and the relationship between the parties. The court also had to take into account the fact that the deceased had been married shortly before his death, although the marriage was of very short duration and the widow was not locatable.

In determining the matter, the court found that the plaintiff had established that she had reasonable financial needs and that she had a legitimate expectation of receiving a benefit from the estate based on her relationship with the deceased. The court also noted that the deceased's marriage was of very short duration and that the widow could not be located, which indicated that she was unlikely to have any claim against the estate. The court considered the statutory criteria and found that a family provision order should be made for the plaintiff. The court ordered that the plaintiff should receive a specified sum from the estate, which was deemed to be a reasonable provision for her needs.

The final orders of the court were that a family provision order be made for the plaintiff, directing that the plaintiff receive a specified sum from the estate. This amount was determined to be a reasonable provision for the plaintiff's needs, taking into account the statutory criteria and the circumstances of the case. The court's decision provided clarity and resolution for the parties involved, ensuring that the plaintiff's reasonable financial needs were met from the estate of the deceased.

Orders