Legal Research
Cases
Nicholls v Hall

Nicholls v Hall

Case [2006] NSWSC 1377 12 December 2006

Family Provision Claim

Insufficient Provision

Needs

Relationship Evidence

Claim Dismissed

Succession Law

No judgment structure available for this case.

Type to search within this case.

CITATION: Nicholls v Hall [2006] NSWSC 1377
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23, 24 October 2006

JUDGMENT DATE :
12 December 2006

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings are dismissed with costs.

CATCHWORDS: WILLS [323]- Family provision- Claim by able-bodied ex-nuptial adult son against father's estate- Whether insufficient provision- Few needs- Little contact during deceased's life- Little evidence of close relationship- Bare fact of paternity- Son fails to establish case for provision- Claim dismissed.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Boniecki v Brown [2006] NSWSC 306
Eather v Maher [2006] NSWSC 746
Gorton v Parks (1989) 17 NSWLR 1
Hunt v Delaney [2005] NSWSC 764
Lo Surdo v The Public Trustee [2005] NSWSC 1186
McQuhae v Abel [2003] NSWSC 711
Mulhall v Permanent Trustee [2004] NSWSC 365
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (1994) 181 CLR 201
Walker v Walker (Young J, 17.5.1996 unreported)
Wheatley v Wheatley [2006] NSWCA 262

PARTIES: David Norman Nicholls (P)
Deborah Anne Hall (D1)
Gregory Robert Hall (D2)
Donna Louise Robinson (D3)
Gregory James Robinson (D4)
Deanne Elizabeth Day (D5)
Colin William Day (D6)

FILE NUMBER(S): SC 2998/05

COUNSEL: L Ellison SC (P)
J R Wilson SC and D Liebhold (D1)

SOLICITORS: Turnbull Hill Lawyers (P)
Kells The Lawyers (D1)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 12 December 2006

2998/05 – NICHOLLS v HALL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 by an adult son. The plaintiff is the ex-nuptial son of the late Barton Kelly who died on 25 November 2004 aged 74. Mr Kelly had made and published his will on 23 August 2002, probate of which was granted to the first defendant, his eldest daughter, on 14 February 2005. The will provided for the estate to pass to the testator's three daughters equally. Apart from the plaintiff and the three daughters, the deceased had no known children.

2 The estate was sworn for probate purposes at $1,509,640.00 of which the testator's house at Warilla was the major asset which was included in the estate at $1.2 million. The executor's affidavits show that the estate was worth $1.3 million net.

3 The present state of the estate is that after distributions of $263,333.33 to each daughter (a total of $790,000), there is $454,400 on deposit with IMB Ltd. The balance appears to have gone in legal expenses.

4 The plaintiff is now aged 47 having been born on 5 January 1959. He is married to Donna with four dependent children aged between 8 and 16. He also has five children from a previous marriage who are now aged between 18 and 31.

5 The plaintiff is the son of the deceased, a European, and an Aboriginal woman, conceived during a brief relationship. That relationship…

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 Nicholls v Hall

Details

AGLC: Nicholls v Hall [2006] NSWSC 1377
Case: [2006] NSWSC 1377
Decision Date: 12 December 2006

CaseChat Overview and Summary

In the case of Nicholls v Hall, the applicant, an adult son born out of wedlock, sought family provision from his deceased father's estate. The son argued that the provisions made for him were inadequate, despite his ability to support himself. The court was tasked with determining whether the provisions made for the son were insufficient and if there were grounds for increasing them. The deceased had provided for the son to the extent of transferring to him a family home, which was the only asset of significance in the estate.

The primary legal issue before the court was whether the son's claim for additional provision was justified. The court considered the nature and extent of the relationship between the son and his father, the needs of the son, and the provisions made for him. The son had little contact with his father during the latter's life, and there was minimal evidence of a close familial relationship. The court also noted that the son's needs were few, and he was capable of self-support. Furthermore, the bare fact of paternity alone was insufficient to establish a claim for family provision.

The court found that the son had not established a case for increased provision from the estate. The provisions made, including the transfer of the family home, were deemed sufficient. The court emphasised the importance of a close familial relationship and the needs of the applicant in determining family provision claims. Given the lack of a close relationship and the son's ability to support himself, the court dismissed the son's claim. As a result, the estate was to be distributed according to the terms of the deceased's will, with no additional provision for the son.

Orders