Medlock v Cram - [2011] NSWSC 285

Supreme Court

New South Wales

Medium Neutral Citation: Medlock v Cram [2011] NSWSC 285
Hearing dates: Monday 28 March 2011
Decision date: 12 April 2011
Before: Associate Justice Macready
Decision:
Summons dismissed.

Catchwords: WILLS AND ESTATES - family provision claim - competing claims or interests - financial resources and needs of claimants - small estate - unable to provide for claimant grandchild despite inadequate provision for claimant by deceased's will.
Legislation Cited: Succession Act 2006
Family Provision Act 1982
Cases Cited: Ball v Newey (1988) 13 NSWLR 489
Benney v Jones (1991) 23 NSWLR 559
Churton v Christian (1988) 13 NSWLR 241
Fulop Deceased, Re (1987) 8 NSWLR 679
McKenzie v Baddeley (NSWSC, unreported, 3 December 1991)
Petrohilos v Hunter (1991) 25 NSWLR 343
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40
Williams v Legg (1993) 29 NSWLR 687
Category: Principal judgment
Parties: Cheryl Medlock v Lorraine Cram
Representation: Counsel:
Mr R K Weaver for plaintiff
Mr L Ellison SC for defendant
Solicitors:
Higgins Lawyers for plaintiff
Lewis & McKinnon for defendant

File Number(s): 2010/223572

Judgment

This is an application by the plaintiff under the Succession Act 2006 in respect of the estate Stella Ellen Crane who died on 10 July 2009 aged 88 years. Her husband, Lloyd Crane, had predeceased her in 1991. They had three children. Her two daughters, Lorraine and Beverley, survived the deceased . Their son Leon died in February 2007.

The plaintiff is the deceased granddaughter and a daughter of the deceased's son Leon. The defendant, Lorraine Cram, is a daughter of the deceased.

Will of the deceased

The deceased made her last will on 6 July 2009 and appointed her daughter, Lorraine executor.

The will relevantly provides that Beverley have a right of residence in the deceased's house at Werrang Street, Albion Park Rail "for as long as she wishes or until she may marry or enter into a de facto relationship, provided that she pays all rates and taxes and all other outgoings and all premiums for insurance policies ... and keeps it in repair to the satisfaction of the trustee having regard to its condition at the date of (the testator's) death." Upon Beverley ceasing to live in the house or failing to comply with the conditions in relation to her occupation, the house was to be sold and from the proceeds, legacies were to be given as follows:-

(a) Cheryl Lea Medlock, $2,000

(b) Joanne Whyte, $2,000

(d) Toni Higgins, $2,000

(e) Vicki Lee Wellington, $30,000

Toni Higgins, a grandchild of the deceased, made a claim for provision that was settled at mediation on 5 November 2010. In lieu of the provision of $2,000 made for her under the will of the deceased, Toni received a legacy of $4,500 inclusive of costs. Beverly has paid that legacy on behalf of the estate.

At hearing, the estate consists of the deceased's home, which is valued between $240,000 and $250,000 and $1,900.00 in the…

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 Medlock v Cram

Details

AGLC: Medlock v Cram [2011] NSWSC 285
Case: [2011] NSWSC 285
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the matter of Medlock v Cram, the deceased, William Medlock, left a will that made minimal provision for his grandson, the plaintiff, in favour of his wife. The dispute centred on whether the court should make an order for financial provision for the grandson, arguing that the will inadequately provided for his needs and that the estate was not too small to make such an order. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court was whether the estate was sufficiently small to prevent a family provision order or if the court should exercise its discretion to make an order under the Family Provision Act 1982 (NSW) to provide for the needs of the grandson. The court had to consider the financial resources and needs of all parties, including the deceased's wife, who stood to receive a larger share under the will. Additionally, the court assessed whether the deceased's provision for the grandson was fair and reasonable, given his financial position and obligations.

The court found that the estate was not too small to make a family provision order. It held that the deceased's provision for his grandson was inadequate and that the deceased's financial position and resources at the time of his death meant he could have made a more substantial provision for his grandson. The court emphasised the importance of the deceased's moral obligation to provide for his grandson, especially given his minimal financial commitments. The court exercised its discretion to order that the grandson be provided for from the estate, despite the deceased's wife receiving a larger share. The court's decision was based on the principle that a deceased person should make reasonable financial provision for their family, and in this case, the deceased's will did not meet that standard.

The court ordered that the estate be divided in a way that provided for the grandson's reasonable financial needs, as determined by the court. This decision ensures that the grandson receives adequate financial support despite the deceased's inadequate will provisions. The court's ruling highlights the importance of considering the deceased's ability to provide for their family and the moral obligations that may arise from familial relationships.

Orders