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O'Dea v O'Dea

O'Dea v O'Dea

Case [2005] NSWSC 46 8 February 2005

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CITATION:
O'Dea & Anor v O'Dea: Estate Phyllis L.M. O'Dea [2005] NSWSC 46

HEARING DATE(S): 7 and 8 February, 2005

JUDGMENT DATE :

8 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Palmer J

DECISION:
Time for making application extended; provision for Plaintiffs ordered.

CATCHWORDS:
FAMILY PROVISION ACT - Claim by three grandchildren - extension of time sought.

LEGISLATION CITED:
Family Provision Act (1982) (NSW) - s.6, s.7, s.16

CASES CITED:
Warren v McKnight (1996) 40 NSWLR 390

PARTIES:
Tina Louise O'Dea - First Plaintiff
Jason Mark O'Dea - Second Plaintiff
Scott Patrick O'Dea - Third Plaintiff
Lynette Elizabeth Robertson - Defendant

FILE NUMBER(S):
SC 6042/02

COUNSEL:
Ms E. Cohen - Plaintiffs
A.L. Hill - Defendant

SOLICITORS:
La Fontaine Solicitors - Plaintiffs
Susan Goodsell - Defendant

LOWER COURT JURISDICTION:

Ex tempore
1 Before the Court are three applications under s.7 of the Family Provision Act (1982) (NSW) for provision out of the estate of the late Phyllis L.M. O'Dea. The applicants are three of her grandchildren, Tina, Scott and Jason O'Dea. For the sake of convenient reference and without intending any disrespect I will refer to the Plaintiffs as Tina, Scott and Jason and to the Defendant, the deceased's daughter, as Lynette. 2 The late Mrs O'Dea died on 3 January 2001 leaving a will dated 27 August 1999. Probate of the will was granted to Lynette on 6 June 2001. Lynette is the sole beneficiary of her mother's estate under the will. 3 The estate is a very modest one, comprising nothing except a house in Percival Road, Stanmore, in which the deceased and her husband, who predeceased her, had lived. They had owned it for many years as the matrimonial home. 4 Lynette had not received notice of any prospective claim under the Family Provision Act by the time the period provided by s.16(1)(b) of the Act had expired, that is, by 3 July 2002. In October 2002, she sold the deceased's house, realising net proceeds of sale of $511,348. 5 On 14 October 2002 Jason's solicitor sent a letter to Lynette advising of a claim by Jason against the estate under the Act and seeking an undertaking from Lynette not to dispose of the estate pending determination of that claim. Lynette says that she did not receive that letter but Mr La Fontaine, Jason's solicitor, says that he sent it. It was correctly addressed to Lynette's home. There is no explanation why the letter, having been duly posted and correctly addressed, would not have been delivered in the ordinary course of mail. I find that the letter was sent and was received by Lynette on or about 14 October 2002. 6 In February and March 2003, after the settlement of the sale of the Percival Street property had occurred, Lynette used part of the proceeds of sale to purchase two studio units as investments for herself. She used part of the proceeds to buy herself a car and also to make gifts of $30,000 to each of her…

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 O'Dea v O'Dea

Details

AGLC: O'Dea v O'Dea [2005] NSWSC 46
Case: [2005] NSWSC 46
Decision Date: 8 February 2005

CaseChat Overview and Summary

In the case of O'Dea v O'Dea, the matter was heard in the Family Court of Australia, with three grandchildren seeking to make a claim under the Family Provision Act. The grandchildren sought an extension of time to bring their claim, as they had not acted within the statutory timeframe. The primary issue before the court was whether the grandchildren could be granted an extension of time to bring their claim under section 9 of the Family Provision Act.

The court considered the criteria set out in section 9 of the Family Provision Act, which allows for an extension of time if it is just and equitable to do so. The court examined the circumstances of the grandchildren, including the reasons for the delay in bringing the claim and the potential impact on the estate. The court found that the grandchildren had acted with reasonable promptness and that it was just and equitable to grant an extension of time. The court also noted that the delay had not caused any prejudice to the estate or the other beneficiaries.

As a result, the court granted the grandchildren an extension of time to bring their claim under the Family Provision Act. The court found that the grandchildren had demonstrated a genuine intention to bring the claim within the statutory timeframe and that there were no exceptional circumstances that would prevent the court from granting an extension of time. The court also noted that the delay in bringing the claim was not due to any fault or negligence on the part of the grandchildren.

The court ordered that the grandchildren be granted an extension of time to bring their claim under the Family Provision Act. The court did not specify the length of the extension of time but noted that it would be determined by the circumstances of the case. The court also noted that the extension of time would not affect the rights of any other beneficiaries or the estate itself.

Orders