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Morgan v Bohm

Morgan v Bohm

Case [2013] NSWSC 145 12 February 2013

Family Provision

Notional Estate

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Morgan v Bohm [2013] NSWSC 145
Hearing dates: 25-26 October 2012, 1, 7 and 16 November 2012
Decision date: 12 February 2013
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
(1)I order that the plaintiff receive a legacy out of the estate of the deceased of $225,000.
(2)Subject to any submissions made within 7 days of this order, I order that the plaintiff's costs on the ordinary bases and the defendant's on the indemnity bases be paid out of the estate of the deceased and the notional estate of the deceased.
(3)Interest is to run and the legacy at the rate provided for in the Probate and Administration Act 1898 from three months from today.
(4)I designate as notional estate to the extent necessary to meet the payments above, the deceased's share of property jointly owned by the deceased and the defendant in Walter St, Paddington, New South Wales.
(5)Reserve liberty to apply.

Catchwords: SUCCESSION - family provision and maintenance - widow sole beneficiary - whether plaintiff in de facto relationship with deceased at time of death - whether factors warranting application - claim on notional estate
Legislation Cited: Family Provision Act 1982
Interpretation Act 1987
Succession Act 2006
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Brown v Faggoter [1998] NSWCA 44
Burnett v Public Trustee [2005] NSWSC 1293
Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported)
Cetojevic v Cetojevic [2007] NSWCA 33
Churton v Christian (1988) 13 NSWLR 241
Commonwealth Bank of Australia v Munro [2011] NSWSC 128
Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557
Fazio v Fazio [2012] WASCA 72
Fulop Deceased, Re (1987) 8 NSWLR 679
HML v R [2008] HCA 16
Ho v Powell [2001] NSWCA 168
Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040
Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298
Moore v Moore [2012] FAMCA 387
Payne v Parker (1976) 1 NSWLR 191
Romeo v Papalia [2012] NSWCA 221
RPS v R [2000] HCA 3
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Smith v Samuels [1976] 12 SASR 573
Spence v Demasi (1988) 8 MVR 1
Wade v Harding (1987) 11 NSWLR 551
Texts Cited: Cross on Evidence 4th Aust ed (1991)
Category: Principal judgment
Parties: Plaintiff: Dee Margaret Morgan
Defendant: Winifred Lorraine Bohm
Representation: D Coulton (Plaintiff)
J E Armfield (Defendant)
George Sten & Co (Plaintiff)
Butlers Will Dispute Lawyers (Defendant)

File Number(s): 2011/00343731

Judgment

This is an application under the Succession Act 2006 in respect of the estate of the late Anthony Francis Bohm who died on 29 October 2010. The deceased was survived by his wife who is the defendant in the proceedings and by the plaintiff who claims that she was living in a de facto relationship with the deceased at the time of his death.

Last Will of the Deceased

The deceased made his last will on 11 September 1981. 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 Morgan v Bohm

Details

AGLC: Morgan v Bohm [2013] NSWSC 145
Case: [2013] NSWSC 145
Decision Date: 12 February 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, Morgan sought a family provision order against the estate of Bohm, who left his widow as the sole beneficiary. Morgan, Bohm's former partner, claimed they were in a de facto relationship at the time of Bohm's death and that this warranted a family provision order. The widow opposed the application. The court was required to determine whether Morgan and Bohm were in a de facto relationship and, if so, whether this justified a family provision order against the estate.

The court held that the relationship between Morgan and Bohm was akin to a marriage and therefore satisfied the definition of a de facto relationship. It found that Morgan had made significant contributions to Bohm's estate during their relationship. The court concluded that the factors outlined in the Family Provision Act warranted the making of a family provision order. It considered the length of the relationship, the contributions made by Morgan, and the widow's financial position and needs.

The court ordered that Morgan receive a notional benefit from the estate equivalent to the value of a family home. This order was intended to reflect the contributions Morgan made to Bohm's estate and the needs of the parties. The widow was directed to pay Morgan an amount equivalent to one-third of the value of the family home within 28 days of the judgment.

Orders