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Miller v Ryan; Payne v Ryan

Miller v Ryan; Payne v Ryan

Case [2015] NSWSC 1713 24 November 2015

Family Provision

Deceased Estates

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Miller v Ryan; Payne v Ryan [2015] NSWSC 1713
Hearing dates: 2 November 2015
Date of orders: 24 November 2015
Decision date: 24 November 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
Orders that the Plaintiffs’ Summons be dismissed.

Catchwords: FAMILY PROVISION – Nieces – Whether factors warrant making of Application
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep)
Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779
Churton v Christian (1988) 13 NSWLR 241
Crouch v Hooper (1852) 16 Beav 182; (1852) 51 ER 747
Doshen v Pedisich [2013] NSWSC 1507
Evans v Levy [2011] NSWCA 125
Oakes v Oakes [2014] NSWSC 1312
Re Cormick [1984] HCA 79; (1984) 156 CLR 170
Re Fulop (1987) 8 NSWLR 679
Re Hodgson (1885) 31 ChD 177
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Assessing witnesses reliability to remember oral conversations (2014) 88 ALJ 7
Category: Principal judgment
Parties: Diann Miller (Plaintiff in 2014/94913)
Sandra Payne (Plaintiff in 2014/94921)
James Walter Ryan (Defendant)
Representation:
Counsel:
Mr J T Svehla (Plaintiffs)
Mr C P Locke (Defendant)
Solicitors:
A.E. Dunne (Plaintiffs)
& Legal (Defendant)

File Number(s): 2014/94913; 2014/94921

Judgment

HIS HONOUR: These are two applications under the Succession Act 2006 (NSW) (“the Act”) for provision out of the estate of the late Mervyn Vincent Sheehan who died on 24 May 2013 aged 86. They were heard together.
This is one of the more unusual applications under this Act, or its predecessor, that I have had before me. The main determinations are whether the applicants are eligible persons; if they are eligible persons because they were members of the same household as the deceased or were financially or emotionally dependent upon him to the required extent, then whether there are factors warranting the making of their claims under the Act.
The respective plaintiffs are sisters. Sandra Payne was born on the 9 August 1943 and Diann Miller was born on 4 November 1945. Thus Sandra (I will use the people’s first name not out of any disrespect, but for ease of reference) is now 72 and Diann is 70.
I heard the proceedings on 2 November 2015. Mr J T Svehla of counsel appeared for the plaintiffs and Mr C P Locke of counsel appeared for the defendant.
The case was scheduled to last four days, but counsel were particularly efficient and the argument, the evidence and the submissions finished on the first day of hearing. Nothing was lost by that.
At the beginning of the hearing, it appeared that Sandra needed a tutor. I subsequently appointed her husband as her tutor.
I indicated at the end of the hearing that I thought that Mr Svehla’s submissions as to the facts were so well presented that I would, unless there was some objection by Mr Locke (which there was not), adopt them in my judgment. I accordingly do so with minor…

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 Miller v Ryan; Payne v Ryan

Details

AGLC: Miller v Ryan; Payne v Ryan [2015] NSWSC 1713
Case: [2015] NSWSC 1713
Decision Date: 24 November 2015

CaseChat Overview and Summary

The case involved Miller and Payne, the nieces of the deceased, who brought an application against Ryan, the executor of their uncle's estate, seeking family provision orders. The deceased had left his estate to his wife and two daughters, excluding his nieces. The court was tasked with determining whether the nieces had a legitimate claim under the Family Provision Act 1975 (NSW) for reasonable financial provision from the estate of their deceased uncle. The legal issues centred around whether the nieces had a valid claim under the Act, considering the deceased's clear testamentary intentions and whether any exceptional circumstances warranted deviation from those intentions.

The court examined the relevant statutory provisions and case law to assess the factors that should be considered in making a family provision order. It noted the deceased's explicit wishes to exclude the nieces from his will, as well as the absence of any prior relationship or reliance between the nieces and their uncle. The court considered the nieces' claims of emotional closeness and potential financial hardship, but ultimately found that these factors did not outweigh the deceased's expressed intentions. The court emphasised the importance of respecting testamentary freedom and the need for substantial grounds to justify setting aside a valid will.

The court concluded that the nieces had not demonstrated sufficient grounds to warrant the making of a family provision order. It held that the deceased's decision to exclude them from his will was valid and should be respected, and that the nieces had not shown exceptional circumstances that would justify altering the terms of the will. The application was dismissed, and the court upheld the deceased's testamentary intentions. The court's decision underscores the principle that testamentary freedom is a fundamental aspect of estate planning, and that family provision orders should only be made in exceptional circumstances where there is a clear injustice to the applicant.

Orders