Nelson v Brennan - [2002] NSWSC 979

Reported Decision:
(2003) DFC 95-265

New South Wales

Supreme Court

CITATION: Nelson v Brennan [2002] NSWSC 979

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1318 of 2001

HEARING DATE(S): 16, 17 July 2002

JUDGMENT DATE: 21 October 2002

PARTIES :

Ann Maree Nelson (Plaintiff)
Janette Brennan (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : M. Bridger (Plaintiff)
R. Maurice (Defendant)

SOLICITORS: Bilbie Dan Solicitors (Plaintiff)
Attwaters Solicitors (Defendant)

CATCHWORDS: Succession - Family provision - Whether Plaintiff and Deceased were in a de facto relationship - Whether Plaintiff has been left without adequate provision for her maintenance - Financial and material circumstances of Plaintiff - Competing claims - Claim by Plaintiff's daughter has been resolved by consent orders - Those orders do not override claim of Plaintiff - Nature of provision sought by Plaintiff - Asserted need to purhcase a residence - Plaintiff has for many years lived in rented accommodation - Plaintiff and Deceased did not propose to purchase a residence - Plaintiff is secure in her present accommodation - Plaintiff is entitled to receive a fund to upgrade her lifestyle and provide for contingencies.

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984

CASES CITED: Roy v Sturgeon (1986) 11 NSWLR 454
Singer v Berghouse (1994) 181 CLR 201

DECISION: See paragraph 56.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master McLaughlin

Monday, 21 October 2002

1318/01 ANN MAREE NELSON -V- JANETTE BRENNAN

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 6 February 2001 the Plaintiff Ann Maree Nelson claims an order for provision for her maintenance and advancement in life out of the estate of the late John William Sansom (to whom I shall refer as “the Deceased”).

3 The Deceased died on 15 December 1999, aged 57. He left a will dated 28 June 1994, probate whereof was on 23 June 2000 granted to Janette Brennan, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased gave his entire estate, after payment of debts, funeral, testamentary and administration expenses,

TO DIVIDE the balance of such net proceeds equally between the following persons, providing they survive me and attain the age of eighteen years:

(i) The children of my sister JANETTE BRENNAN;

(ii) The children of my sister KAY TURNER ;

(iii) The child BRIAN JOSEPH AHKIN ; and

KRISTY LEE MEAKER.

5 The assets of the estate, as disclosed in the Inventory of Property, total about $333,300. The significant assets were various amounts by way of annual leave, sick leave and long service leave payable by the Deceased’s employer, the Newcastle City Council (totalling about $53,000), and superannuation benefits payable by the Local Government Superannuation Scheme (about $266,000).

6 The entirety of the estate of the Deceased has now been converted into cash, almost all of which is invested with the St. George Bank on a fixed deposit. That amount,…

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 Nelson v Brennan

Details

AGLC: Nelson v Brennan [2002] NSWSC 979
Case: [2002] NSWSC 979
Decision Date: 21 October 2002

CaseChat Overview and Summary

In the case of Nelson v Brennan, the Plaintiff, Nelson, sought a declaration that she was in a de facto relationship with the Deceased, Brennan, and was thus entitled to a family provision order under the Succession Act. The court was tasked with determining whether the Plaintiff was in such a relationship and, if so, whether she had been left without adequate provision for her maintenance. The Plaintiff argued that she had not been adequately provided for, given her financial and material circumstances, and requested that she be granted a fund to upgrade her lifestyle and provide for contingencies. The Deceased's estate opposed the claim, asserting that the Plaintiff had not been left without adequate provision.

The court had to consider the nature of the relationship between the Plaintiff and the Deceased, and whether their relationship constituted a de facto relationship under the Succession Act. The court also had to determine whether the Plaintiff had been left without adequate provision for her maintenance and what form such provision should take. In doing so, the court had to consider the Plaintiff's financial and material circumstances, including her living arrangements, and competing claims from other beneficiaries, such as the Plaintiff's daughter, whose claim had been resolved by consent orders.

The court found that the Plaintiff and the Deceased were in a de facto relationship. It further found that the Plaintiff had not been left without adequate provision for her maintenance, as she was secure in her present accommodation. However, the court held that the Plaintiff was entitled to receive a fund to upgrade her lifestyle and provide for contingencies. The court rejected the argument that the Plaintiff needed to purchase a residence, as this was not a proposal she and the Deceased had made. The court also noted that the consent orders made with the Plaintiff's daughter did not override the Plaintiff's claim.

The court ordered that the Plaintiff was entitled to receive a fund of $100,000 from the Deceased's estate. This fund was to be used to upgrade the Plaintiff's lifestyle and provide for contingencies. The court noted that this order was not final and was subject to the outcome of any other claims made by other beneficiaries.

Orders