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Mulcahy v Weldon

Mulcahy v Weldon

Case [2001] NSWSC 474 12 June 2001

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CITATION: MULCAHY v. WELDON [2001] NSWSC 474

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4732/99

HEARING DATE(S): 18/05/2001

JUDGMENT DATE:
12 June 2001

PARTIES :

Patricia Elizabeth Mulcahy - Plaintiff
Paul John Weldon - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : Ms L. Robinson - Plaintiff
Mr C.J. Bevan & Mr J. Raneri - defendant

SOLICITORS: G.H. Healey & Co - Plaintiff
Turner Freeman - Defendant

CATCHWORDS: FAMILY PROVISION - former spouse - marriage in 1971, separation in 1988, divorce in 1989 - order of Family Court for property settlement adopted agreed Terms of Settlement in March 1990 and plaintiff received $150,000 - TS contained covenant to execute Deed of Release of Family Provision claims but neither side required Deed to be executed and no order under s.31 - H died 1998 and left estate $358,000 to distant cousins he had never met - plaintiff now lives in Aged Persons accommodation, Age Pension and savings $2000 and no other resources - no continuing relationship or contact after separation: HELD under s.9(1), no factors warranting application, proceedings dismissed.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)

CASES CITED: Wilson v. Harper [1908] 2 Ch 370
Churton v. Christian (1988) 13 NSWLR 241
White v. Baron (1980) 144 CLR 431
Dijkhuijs (formerly Coney) v. Barclay (1988) 13 NSWLR 639
Permanent Trustee Co. Ltd v. Fraser (1995) 36 NSWLR 24.
Burke v. Public Trustee [1997] SASC 6423

DECISION: Proceedings are dismissed. Costs reserved.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

TUESDAY 12 JUNE 2001

4732/99 PATRICIA ELIZABETH MULCAHY v. PAUL JOHN WELDON
ESTATE OF THE LATE JOHN ROBERT MULCAHY
JUDGMENT

1 HIS HONOUR: John Robert Mulcahy (in the will called Robert John Mulcahy) late of Maroubra, retired waterside worker, died at a date which cannot be exactly established between 19 April 1998 and 20 May 1998 aged 67 years and on 16 October 1998 this Court granted to the defendant Paul John Weldon probate of his last will dated 31 July 1992. By the provisions of the will which took effect Mr Mulcahy appointed Mr Weldon executor and he gave the whole of his property to Mr Weldon and his sister Susan Weldon in equal shares.

2 The plaintiff is the former wife of Mr Mulcahy. She was born on 26 August 1932 and married Mr William James Moffit in 1953; Mr Moffit died in 1965 and the plaintiff has three adult children of that marriage. She married Mr Mulcahy on 9 January 1971. Their marriage was dissolved by decree of the Family Court of Australia about 1989; the exact date has not been established. No provision was made by the will for the plaintiff. By her Amended Summons of 21 June 2000 she claims provision pursuant to s.7 of the Family Provision Act 1982 (NSW) for her maintenance and advancement in life out of his notional estate. As the former wife of Mr Mulcahy she is an…

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 Mulcahy v Weldon

Details

AGLC: Mulcahy v Weldon [2001] NSWSC 474
Case: [2001] NSWSC 474
Decision Date: 12 June 2001

CaseChat Overview and Summary

In the case of Mulcahy v Weldon, the plaintiff, who was previously married to the deceased, sought family provision from the estate of her former husband, who passed away in 1998. The marriage began in 1971 and ended with a divorce in 1989, following a separation in 1988. The dispute involved the plaintiff's request for additional financial support from the deceased's estate, which was valued at $358,000 and was left to distant cousins the deceased had never met. The plaintiff, who was residing in aged persons' accommodation, was receiving the Age Pension and had savings of $2000, with no other resources. There had been no ongoing relationship or contact between the parties since their separation.

The central legal issue in this case was whether the plaintiff was entitled to family provision from the deceased's estate under section 9(1) of the relevant legislation. The court needed to consider the circumstances of the parties, including the duration of the marriage, the contributions made by the plaintiff, and any other factors that might warrant the making of a family provision order. The court also needed to assess whether there were any factors that would justify the dismissal of the plaintiff's application.

In delivering its judgment, the court examined the terms of the property settlement agreement, which had been adopted in March 1990 and included a covenant to execute a Deed of Release of Family Provision claims. However, neither party required the execution of the Deed, and no order was made under section 31. The court considered the plaintiff's financial situation, her contributions to the marriage, and the absence of a continuing relationship or contact between the parties since their separation. The court found that there were no factors warranting the making of a family provision order under section 9(1) of the legislation. Consequently, the court dismissed the plaintiff's proceedings.

The court's final orders were that the plaintiff's application for family provision from the deceased's estate was dismissed. The court determined that the circumstances did not warrant the making of a family provision order, and the plaintiff was not entitled to any further financial support from the estate.

Orders