Ogburn v Ogburn; Ogburn v Ogburn - [2012] NSWSC 79

Supreme Court

New South Wales

Medium Neutral Citation: John Xavier Ogburn v Marita Beresford Ogburn; Dominic Ogburn v Marita Beresford Ogburn [2012] NSWSC 79
Hearing dates: 13 to 16 February 2012
Decision date: 05 March 2012
Jurisdiction: Equity Division
Before: Ball J
Decision:
See paragraphs 92 to 96 of this judgment.

Catchwords: SUCCESSION - family provision and maintenance - position of adult children - position of widow - legitimate expectation of widow to maintain way of life shared with deceased - where married to deceased for approximately 30 years and contributed to purchase of property which forms part of estate - where property forms important part of widow's and deceased's shared lives. SUCCESSION - family provision and maintenance - notional estate - interrelation of question whether a notional estate order should be made and whether family provision order should be made - moral obligation to make adequate provision held not to outweigh moral obligation to widow -order made in relation to property acquired only for investment purposes.
Legislation Cited: Family Provisions Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Bladwell v Davis [2004] NSWCA 170
Cropley v Cropley [2002] NSWSC 349
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Young & Grainger v Outtrim [2011] NSWSC 291
Category: Principal judgment
Parties: John Xavier Ogburn (Plaintiff - 2010/421264)
Dominic Ogburn (Plaintiff - 2010/422223)
Marita Beresford Ogburn (Defendant)
Representation: Mr J Priestley (Plaintiff: John Xavier Ogburn)
Mr J E Armfield (Plaintiff: Dominic Ogburn)
Mr S Hughes (Defendant)
Susan Green (Plaintiff: John Xavier Ogburn)
Theece, Hodgson & Ward (Plaintiff: Dominic Ogburn)
Verekers (Defendant)

File Number(s): 2010/421264 and 2010/422223

Judgment

This judgment concerns proceedings brought by each of John Xavier Ogburn ( John ) and Dominic John Ogburn ( Dominic ) for family provision orders under chapter 3 of the Succession Act 2006 (NSW) (the Act ) in relation to the estate of their late father, John Armstrong Ogburn, who died in January 2010 at the age of 84. By his will, the deceased appointed his second wife, the defendant, his executor and left the whole of his estate to her.

The deceased and the defendant

In 1953, the deceased married his first wife, Moira Abotomey. They had 5 children, including the plaintiffs. The oldest of their children died at the age of 17.

The deceased separated from his first wife in 1971 and commenced a relationship with the defendant in mid-1972, although they had first met in 1966. The deceased was an artist. In about 1962, he founded the John Ogburn Studio in Lower George Street, Sydney, where he taught students painting and drawing. The defendant was one of his students between 1966 and mid-1968. She is currently 64 years old.

At the time the deceased and defendant commenced their relationship, the deceased lived outside of Sydney. However, from early 1973 he spent most of his time living at the defendant's apartment in North Sydney. At that time, the defendant commenced working as an art teacher at Loreto Kirribilli…

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.

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Details

Case: [2012] NSWSC 79
Decision Date: 05 March 2012

CaseChat Overview and Summary

The case before the court involved a dispute between adult children and a widow over the distribution of the estate of a deceased individual. The widow claimed entitlement to maintain her lifestyle shared with the deceased, having been married to him for about thirty years and contributing to the purchase of a property that formed part of the estate. The adult children sought to challenge the distribution of the estate, arguing that the widow's claim should not override their own rights.

The court was required to determine the appropriate distribution of the estate between the widow and the adult children, considering the widow's claim to maintain her shared lifestyle with the deceased and the children's challenge to this claim. The court also had to consider the notional estate and the moral obligations owed to both the widow and the children. The central issue was whether the moral obligation to make adequate provision for the widow outweighed the moral obligation to the children.

The court held that the moral obligation to the widow did not override the moral obligation to the children. The court found that the property in question was acquired solely for investment purposes and was not part of the shared lifestyle between the widow and the deceased. Consequently, the court made an order in relation to this property, but did not grant the widow's claim to maintain her shared lifestyle. The court recognised the widow's significant contribution to the estate but found that the moral obligation to the children could not be overlooked.

The final orders of the court included a determination regarding the distribution of the estate, with specific reference to the property acquired for investment purposes. The court did not grant the widow's claim to maintain her shared lifestyle, instead making an order that reflected the balance of moral obligations owed to both the widow and the children.

Orders