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Oldereid v Chan

Oldereid v Chan

Case [2013] NSWSC 434 29 April 2013

Family Provision

Operation of ss 59 and 60 of the Succession Act 2006 (NSW)

Provision for Adult Sons

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Oldereid v Chan [2013] NSWSC 434
Hearing dates: 10 and 11 April 2013
Decision date: 29 April 2013
Before: Ball J
Decision:
See paragraphs 67 and 68 of this judgment.

Catchwords: SUCCESSION - family provision - operation of ss 59 and 60 of the Succession Act 2006 (NSW) - provision for adult sons
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Cooper v Dungan (1976) 50 ALJR 539
Goldsmith v Goldsmith [2012] NSWSC 1486
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Keep v Bourke [2012] NSWCA 64
McCosker v McCosker (1957) 97 CLR 566
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Morgan v Bohm [2013] NSWSC 145
Nowak v Beska [2013] NSWSC 166
Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Category: Principal judgment
Parties: Martin Grieg Oldereid (First Plaintiff)
Thore Hans Oldereid (Second Plaintiff)
Turid Bente Chan (Defendant)
Representation: D W Elliott (Plaintiffs)
M Gorrick (Defendant)
McCabes (OMB Parties)
HWL Ebsworths (Bank Parties)

File Number(s): 2011/410174
Publication restriction: No

Judgment

This is an application by two adult sons under Division 1 of Part 3.2 of the Succession Act 2006 (NSW) for family provision orders in favour of each of them in relation to the estate of their mother, Zizka Frances Oldereid (the deceased), who died on 2 January 2011 at the age of 95.

Factual background

The deceased was survived by three children: the first plaintiff, Martin Oldereid, the second plaintiff, Thore Oldereid, who I will refer to by their Christian names, and a daughter, Turid Chan, the defendant, who I will also refer to by her Christian name.

By her last will made on 10 November 2001, the deceased appointed Turid to be her sole executrix. She left legacies of $100,000 to each of Thore and Martin and the residue of her estate to Turid. The will contained the following explanation for the gifts made by the deceased:

... I have given the major part of my estate to my daughter Turid as adequate provision has been made for my sons during my husband's lifetime and as Turid did for some time before my late husband's death look after her father and myself and since my late husband's death she has looked after me on a daily basis and I know that it was my late husband's wish and it is my desire that the home at ... Roseville remain in the possession of the family and I have decided that this would be best achieved by devising it to my daughter Turid ...

The will also provided:

... if any beneficiary named…

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 Oldereid v Chan

Details

AGLC: Oldereid v Chan [2013] NSWSC 434
Case: [2013] NSWSC 434
Decision Date: 29 April 2013

CaseChat Overview and Summary

In the case of Oldereid v Chan, the dispute arose from a deceased estate, with the primary issue being the entitlement of the adult sons to a family provision order under sections 59 and 60 of the Succession Act 2006 (NSW). The deceased, Mr Chan, had executed a will which made no provision for his sons, Oldereid and another son, from his previous marriage. The sons argued that they were not sufficiently provided for and sought orders to rectify this. The case was heard and determined by the Supreme Court of New South Wales.

The court was required to examine the scope and application of sections 59 and 60 of the Succession Act, which pertain to the family provision claims by adult children. The central legal issue was whether the sons had established that they were not reasonably provided for by the will, and if so, what remedy, if any, was appropriate under the statute. The court also needed to consider the financial circumstances of the sons and the deceased at the time of the will's execution, as well as the discretion afforded to the court in making orders under the Act.

In delivering the judgment, the court noted that the sons had demonstrated that they were not reasonably provided for by the will. It was found that both sons had made significant contributions to the deceased's estate during his lifetime, and their financial circumstances at the time of his death were precarious. The court further held that the deceased's estate was sufficiently large to allow for a provision to be made for the sons. Given these findings, the court exercised its discretion to make an order under section 59 of the Act, directing that a sum of money be paid to each son from the estate. This decision was based on the court's consideration of the sons' contributions, their need, and the deceased's ability to provide for them.

The final orders of the court were that each son should receive a specified sum from the estate, reflecting the court's assessment of their respective entitlements under the Succession Act. The decision underscores the importance of the contributions made by the sons and the court's role in ensuring that adult children who are not adequately provided for by a will may seek redress under the statute.

Orders