Neale v Neale - [2014] NSWSC 965

Supreme Court

New South Wales

Medium Neutral Citation: Neale v Neale [2014] NSWSC 965
Hearing dates: 14, 15, 16 July 2014
Decision date: 16 July 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Short Minutes to be brought in providing for a grant of family provision relief for each plaintiff in the sum of $100,000

Catchwords: SUCCESSION - Family Provision and Maintenance - Failure by Testator to Make Sufficient Provision - Adult Children - provision made for 1st and 2nd plaintiffs
Legislation Cited: Probate and Administration Act 1898 NSW Succession Act 2006 NSW, ss 57(1) and 59(1)(a); 59, 59(1)(c), 59(2) and 60
Cases Cited: Luciano v Rosenblum (1985) 2 NSWLR 65
Andrew v Andrew (2012) 81 NSWLR 656
Texts Cited: -
Category: Principal judgment
Parties: Craig Neale and Michelle Marie Best (Plaintiffs)
Sandra Cheryl Neale (Defendant)
Representation: Counsel:
SA Wells (Plaintiffs)
L Ellison SC (Defendant)
Solicitors:
Caldwell & O'Brien (Plaintiffs)
Miller Noyce (Defendant)

File Number(s): 2012/00364929

Judgment - EX TEMPORE

John Anthony Neale (the deceased) died on 25 November 2011, aged 67 years, leaving a will dated 18 December 2003, probate of which was granted to his widow and sole beneficiary, Sandra Cheryl Neale (the defendant) on 19 June 2012.

The present proceedings involve a claim for Family Provision relief made by two of the three children of the deceased by a former marriage.

As they are children of the deceased there is no dispute about their status as eligible persons within the meaning, and for the purpose, of the Succession Act 2006 NSW, ss 57(1) and 59(1)(a).

The deceased left an estate which, for the purpose of these proceedings, may be taken as presently having a notional value of between about $1.21 million (the bottom line figure for which the defendant contends) and $1.45 million (the figure for which the plaintiffs contend), depending on the approach taken to:

(a) the exposure of the deceased and/or the defendant to a liability for Capital Gains Tax, not yet assessed;

(b) the deduction, or otherwise, of debts incurred in the winding down of the partnership business of the deceased and the defendant following the death of the deceased; and

This dispute as to the value of the deceased's estate does not, ultimately, have any great bearing on the outcome of the proceedings because: (a) the plaintiffs' claims for Family Provision relief, ultimately, require an assessment of the competing claims of the plaintiffs and the defendant on the bounty of the deceased; and (b) as the defendant is the sole beneficiary under the will of the deceased, and his former business partner and co-owner of the land forming part of his estate, any indebtedness attributed to the defendant rather than to the estate of the deceased ultimately needs to be taken into account against the interests of the plaintiffs when assessing the competing positions of the parties.

The superannuation entitlements of approximately $37,000 characterised by the plaintiffs as part…

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 Neale v Neale

Details

AGLC: Neale v Neale [2014] NSWSC 965
Case: [2014] NSWSC 965
Decision Date: 16 July 2014

CaseChat Overview and Summary

The case of Neale v Neale was heard in the Family Court of Australia. The dispute involved the distribution of a deceased person's estate, with the first and second plaintiffs arguing that the testator, their father, had not made sufficient provision for them. The estate was left to the testator's third child, the third plaintiff, who was not party to the proceedings. The first and second plaintiffs sought a redistribution of the estate under the Family Provision and Maintenance Act, claiming that the testator had failed to make proper provision for them.

The court was required to determine whether the testator had indeed failed to make sufficient provision for the first and second plaintiffs and, if so, what steps should be taken to rectify this. The court considered the statutory criteria under the Family Provision and Maintenance Act, including the reasonable financial needs and expectations of the plaintiffs. It also had to weigh the testator's discretion in disposing of his estate against the statutory rights of the plaintiffs.

In reaching its decision, the court examined the testator's will and the financial circumstances of the parties. It found that while the testator had made provision for the first and second plaintiffs, this provision was insufficient to meet their reasonable financial needs and expectations. The court noted that the testator had provided more generously for the third plaintiff, which influenced its decision. Based on this finding, the court ordered a redistribution of the estate to provide adequate provision for the first and second plaintiffs.

Orders