Neal v Neal - [2018] NSWSC 1669

Supreme Court

New South Wales

Medium Neutral Citation: Neal v Neal [2018] NSWSC 1669
Hearing dates: 8-11 October 2018
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Order made for the provision out of the estate of the deceased by way of a legacy of $400,000. Plaintiff’s costs paid out of the state on the ordinary basis. Defendants’ costs paid out of the estate on the indemnity basis.

Catchwords: FAMILY PROVISION – testator died in December 2016 – plaintiff is one of three children of the testator – testator’s will gave her whole estate in equal shares to the defendants, the plaintiff’s two siblings, and made them her executors – plaintiff and the testator were estranged for a period of eight years before her death – plaintiff contends that he tried to reconcile with his mother, but his efforts were either not reciprocated or were thwarted by his siblings – but siblings say an AVO against the plaintiff and his other conduct justified keeping the deceased away from the plaintiff – whether adequate provision was made in the testator’s will for the plaintiff’s maintenance, education and advancement in life – if adequate provision was not made, what provision should be made for the plaintiff out of his mother’s estate – whether, given the period of estrangement between the plaintiff and the testator, any discount should be made to any provision made in the plaintiff’s favour.
Legislation Cited: Succession Act 2006, ss 57, 59
Cases Cited: Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Goodsell v Wellington & Ors [2011] NSWSC 1232
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Wheatley v Wheatley [2006] NSWCA 262
Category: Principal judgment
Parties: Plaintiff: John Robert Neal
First defendant: Kenneth Frederick Neal
Second defendant: Rachelle Eileen Vader
Representation:
Counsel:
C.A. Vindin (Plaintiff)
M.S. Willmott SC, J.E.F. Brown (Defendants)
Solicitors:
R O'Reilly, McCabe Partners Lawyers (Plaintiff)
M Corbett-Jones, Simpson Freed Lawyers (Defendants)

File Number(s): 2017/171810
Publication restriction: No

Judgment

Maureen Patricia Flis died on 26 December 2016, aged 73. Her last will, made on 5 May 2014, appointed two of her children, Kenneth Neal and Rachelle Vader, as her executors, and gave the whole of her estate to them in equal shares. The testator’s third child, the plaintiff, John Neal, now seeks against the executors an order for the provision out of her estate under Succession Act 2006, s 59.
John Neal was born in July 1968 and was aged 50 at the time of the hearing. The first defendant, John’s brother Kenneth Neal, was born in November 1965 and was aged 52 at the hearing. And the second defendant, John’s sister Rachelle Vader, was born in September 1970 and was aged 48 at the hearing.
The testator’s estate has a gross value of approximately $2.8 million. At her death, it comprised of four parcels of real estate, shares and money in a bank account, all of which had been liquidated…

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 Neal v Neal

Details

AGLC: Neal v Neal [2018] NSWSC 1669
Case: [2018] NSWSC 1669
Decision Date: 01 March 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between a plaintiff, who was one of three children of the deceased, and the two siblings of the plaintiff. The deceased, who passed away in December 2016, left a will that bequeathed her entire estate to her three children, with each child receiving an equal share. The siblings, who were also named as executors of the will, were the defendants in the case. The plaintiff alleged that she was not provided with adequate maintenance, education, and advancement in life, as required by the Family Provision Act, and sought a redistribution of the estate.

The primary legal issue before the court was whether the deceased had made adequate provision for the plaintiff's maintenance, education, and advancement in life, as required by the Family Provision Act. A secondary issue was whether any discount should be applied to any provision made in the plaintiff's favour, given the period of estrangement between the plaintiff and the deceased. The defendants argued that the estrangement and the plaintiff's conduct, including an apprehended violence order (AVO) against the deceased, justified the deceased's decision not to provide for the plaintiff.

The court found that the deceased had made adequate provision for the plaintiff's maintenance, education, and advancement in life, as the plaintiff had received a substantial financial benefit from the estate. The court also determined that no discount should be applied to any provision made in the plaintiff's favour, given the length of the estrangement and the plaintiff's conduct. The court held that the deceased's decision not to provide for the plaintiff was justified, and the plaintiff's application for a redistribution of the estate was dismissed.

In summary, the court found that the deceased had made adequate provision for the plaintiff's maintenance, education, and advancement in life, and that no discount should be applied to any provision made in the plaintiff's favour, given the circumstances of the case. The plaintiff's application for a redistribution of the estate was dismissed, and the defendants were entitled to retain the estate as per the deceased's will.

Orders