Moon v Abrahams - [2010] NSWSC 69

CITATION: Moon v Abrahams [2010] NSWSC 69

HEARING DATE(S): 27/10/09, 28/10/09, 29/10/09

JUDGMENT DATE :
17 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 86 Parties to bring in short minutes.

CATCHWORDS: Family Provision application by adult daughter left with only small provsion as majority of deceased's estate passed to another daughter by survivorship. Minor further provision and plaintiff's costs capped.

PARTIES: Diana Jean Moon v Sharyn Maria Abrahams and Anor

FILE NUMBER(S): SC 2303/08

COUNSEL: JS Drummond for plaintiff
P Blackburn-Hart SC for defendant

SOLICITORS: GJ Harris & Co for plaintiff
IE Duffield for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Wednesday 17 February 2010

2303/2008 Diana Jean Moon v Sharyn Maria Abrahams and Robert Bruce Abrahams

JUDGMENT

1 His Honour: This is the hearing of proceedings commenced by summons filed 11 April 2008 in which the plaintiff sought an order pursuant to s 7 of the Family Provision Act 1982 (“the Act”) that provision be made for the plaintiff’s maintenance and advancement in life out of the estate or notional estate, of Gwenda Jean Cawsey, who died on 12 October 2006.

2 An amended summons was filed at the hearing on 27 October 2009 which sought further relief by way of declarations that the deceased’s interest in the proceeds of sale of property in Gestingthorpe Road, Perthville and the lands contained in folio identifier 31/DP87529 (“the Perthville Property”) forms the deceased’s notional estate pursuant to s 22 and s 23 of the Act and that the first and second defendants hold on trust for the deceased’s estate, the deceased’s interest in the proceeds of sale of the Perthville property.

3 On 26 October 2009 his Honour Justice White referred the whole of the proceedings to an Associate Judge for hearing. In the hearing no submissions were made in respect of the trust claim and the plaintiff relied instead upon the Court’s power to designate jointly owned property as notional estate.

Family History

4 The deceased had two daughters. The plaintiff, Mrs Diana Moon, is the deceased’s eldest child. She was born in June 1949 and is now aged 60. She married Bryan Moon in September 1972.

5 The first defendant, Mrs Sharyn Abrahams is the deceased’s second child. She was born in July 1954 and is now aged 55. The first defendant married the second defendant, Mr Robert Abrahams in January 1975.

6 In early 1996 the deceased separated from her husband, Donald Cawsey, and went to live with the plaintiff and her husband at Castlereagh until late 1997 when the deceased moved to a house she had inherited from her mother in Victoria Street, Berry.

7 The deceased, together with the plaintiff and the plaintiff’s husband, purchased as joint tenants two neighbouring properties in Chambers Flat, Queensland (“the Chambers Flat properties”) in 1997. It appears the deceased paid one half of the $205,000 purchase price.

8 In 1998 the deceased gave $5,000…

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 Moon v Abrahams

Details

AGLC: Moon v Abrahams [2010] NSWSC 69
Case: [2010] NSWSC 69
Decision Date: 17 February 2010

CaseChat Overview and Summary

The case of Moon v Abrahams involved a family provision application brought by an adult daughter who was left with only a small provision from her deceased father’s estate. The majority of the estate was passed to another daughter by virtue of survivorship. The court was tasked with determining the appropriate provision for the plaintiff, given the financial circumstances of both daughters and the wishes of the deceased.

The legal issues before the court included the interpretation of the Family Provision Act and the discretion afforded to the court in determining what constitutes "just and reasonable" provision for a dependent relative. The court had to balance the statutory presumption that the surviving spouse and children should receive a fair share of the estate against the plaintiff's particular needs and circumstances. Additionally, the court considered the deceased’s intentions, as expressed in his will and other evidence, to determine if they should influence the outcome.

In delivering the judgment, the court recognised the statutory presumption but emphasised the importance of considering the individual circumstances of each case. The court took into account the deceased's intentions, the financial needs and resources of both daughters, and the nature of the relationship between the deceased and each daughter. Ultimately, the court determined that while the statutory presumption should be followed, the circumstances of the case warranted a minor further provision for the plaintiff. The court also capped the minor further provision and ordered the plaintiff’s costs to be paid.

Orders