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Noble v Durrant

Noble v Durrant

Case [2023] NSWSC 513 17 May 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Noble v Durrant [2023] NSWSC 513
Hearing dates: 27, 29-30 June 2022, 1 July 2022
Date of orders: 12 May 2023
Decision date: 17 May 2023
Jurisdiction: Equity - Family Provision List
Before: Richmond J
Decision:
Summons dismissed.

Catchwords:
SUCCESSION – family provision – claim by adult nieces – where plaintiffs lived in deceased’s father’s house during their childhood – whether plaintiffs each an eligible person – whether there were factors warranting plaintiffs’ application – factors warranting application – whether inadequate provision for the proper maintenance, education or advancement in life for each of the plaintiffs – should court exercise its discretion to make an order for provision in favour of either plaintiff – application for provision refused

Legislation Cited:
Family Provision Act 1982 (NSW)
Succession Act2006 (NSW) ss 3, 57, 59, 60

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bassett v Bassett [2021] NSWCA 320
Blendell v Blendell [2020] NSWCA 154
Collings v Vakas [2006] NSWSC 393
Lodin v Lodin [2017] NSWCA 327; 16 ASTLR 576
Mallitt v Gow [2022] NSWSC 1012
Maynard v Maynard [2018] NSWSC 1961
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Re FulopDeceased (1987) 8 NSWLR 679
Sgro v Thompson [2017] NSWCA 326
Singh v Singh [2018] NSWCA 30; 17 ASTLR 317
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Sreckovic v Sreckovic [2018] NSWSC 1597
Steinmutz v Shannon (2018) 99 NSWLR 687; [2019] NSWCA 114
Stone v Stone [2019] NSWSC 233

Texts Cited:
GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis)

Category: Principal judgment
Parties: Charlotte Noble (First Plaintiff)
Carolyn Noble (Second Plaintiff)
Donald Henry Durrant (First Defendant)
Linda Mae Allen (Second Defendant)
Representation:
Counsel:
D Reid (Plaintiffs)
N Bilinsky (Defendants)
Solicitors:
Premier Compensation Lawyers (Plaintiffs)
Parker & Kissane (Defendants)

File Number(s): 2021/200483

Judgment

Belinda Ruth Noble (the deceased) died on 16 July 2020. At the time of her death, she was 53 years old. By a Summons filed on 13 July 2021, the plaintiffs, Charlotte Noble (Charlotte) and Carolyn Noble (Carolyn), each seek a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) out of the deceased’s estate. The plaintiffs are nieces of the deceased. They also seek an order for their costs of the proceedings to be paid out of the estate.
The defendants are Donald Durrant and Linda Allen who are the executors of the deceased’s estate to whom probate was granted on 19 October 2020.
As is customary in matters of this kind, and without meaning any disrespect, I will refer to the members of the deceased’s family by their first names.

The deceased’s estate

In the inventory of property which was attached to the Grant of Probate, the deceased’s estate was disclosed as comprising cash…

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 Noble v Durrant

Details

AGLC: Noble v Durrant [2023] NSWSC 513
Case: [2023] NSWSC 513
Decision Date: 17 May 2023

CaseChat Overview and Summary

The case of Noble v Durrant was heard in the Supreme Court of New South Wales. The plaintiffs, two adult nieces, sought family provision from the estate of the deceased, who was their uncle. The primary issue was whether the plaintiffs were eligible persons under the Family Provision Act 1975, and if the court should exercise its discretion to make an order for provision in their favour, given that they had lived in their deceased uncle's father's house during their childhood. The legal issues that the court had to determine were the eligibility of the plaintiffs under the Act and the presence of factors warranting the application for family provision.

The court examined the criteria set out in the Family Provision Act to determine if the plaintiffs qualified as eligible persons. It considered the relationship between the plaintiffs and the deceased, and the nature and duration of their residence in the deceased’s father's house. The court found that the plaintiffs had not established that they were each eligible persons under the Act. Additionally, the court assessed whether there were factors warranting the application, such as inadequate provision for the proper maintenance, education, or advancement in life of the plaintiffs. After reviewing the evidence, the court concluded that the plaintiffs had not demonstrated that they had been inadequately provided for. Therefore, the court determined that there were no grounds to exercise its discretion in favour of the plaintiffs.

In light of the findings, the court dismissed the plaintiffs' application for family provision. The court held that the plaintiffs were not eligible persons under the Family Provision Act, and that there were no factors warranting the application. Consequently, the court did not make any order for provision in favour of either plaintiff. The decision underscores the stringent criteria that must be met for a family provision application to succeed, particularly regarding eligibility and the presence of warranting factors.

Orders