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Olsen v Olsen

Olsen v Olsen

Case [2019] NSWSC 217 15 March 2019

Family Provision Order

Wills

Half-Siblings

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Olsen v Olsen [2019] NSWSC 217
Hearing dates: 5 March 2019
Date of orders: 15 March 2019
Decision date: 15 March 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
Summons dismissed

Catchwords: SUCCESSION ACT – family provision order – 61 year old adult son – solicitor – born of brief first marriage – no provision made – widow and three half-siblings from testator’s second marriage – no basis for disturbing will
Legislation Cited: Civil Procedure Act 2005 (NSW).
Succession Act 2006 (NSW)
Cases Cited: Donnelly v Australia and New Zealand Banking Group Limited [2016] NSWSC 263
Friend v Brien [2014] NSWSC 613
In re Sinnott (1948) VLR 279
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20; [1962] HCA 19
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1993) 114 ALR 521
Steinmetz v Shannon [2018] NSWSC 1090
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos (No 2) [2015] NSWSC 290
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Category: Principal judgment
Parties: Craig Olsen – plaintiff
Dean Richard Olsen – first defendant
Micheline Isabelle Olsen – second defendant
Faye Beverley Olsen – third defendant
Representation:
Counsel:
Mr I R Coleman SC with Ms L Clarke – for the plaintiff
Mr K Morrissey – for the first, second and third defendants
Solicitors:
Acorn Lawyers – for the plaintiff
Robertson Saxton Primrose Dunn – for the first, second and third defendants

File Number(s): 2017/155788

Judgment

Introduction

This is a claim by a 61 year old solicitor for provision from the estate of his father Colin Olsen (the testator) who died at the age of 87 years. The plaintiff was brought up by his mother. She married the testator in 1957 and they separated in 1959 when the plaintiff was nine months old. The testator went on to marry again and have three more children by his second wife (Beverley). He did not ignore the plaintiff and paid the maintenance that he was required to pay but their contact was sporadic. It is a relatively common story. At the end of his life, the testator left the whole of his estate to Beverley to whom he had been married for 56 years. He stipulated that if she predeceased him, his estate was to go to their three children. He made no provision for the plaintiff.
At the hearing, the plaintiff’s counsel limited the claim to a sum of $250,000 to carry out repairs to one or both of two adjoining properties in Waratah near Newcastle. No claim was put forward for any other sum that could be said to be necessary for the plaintiff’s maintenance or advancement in life. The properties are owned by the plaintiff’s wife. She and the plaintiff live in one property and operate a legal practice from the other. The evidence that all of the repairs were essential was not convincing. At the conclusion of the hearing, I announced that…

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 Olsen v Olsen

Details

AGLC: Olsen v Olsen [2019] NSWSC 217
Case: [2019] NSWSC 217
Decision Date: 15 March 2019

CaseChat Overview and Summary

The parties involved in Olsen v Olsen were the testator's adult son, Olsen, and the widow and three half-siblings from the testator's second marriage. The dispute centred around a family provision order under the Succession Act, with the son arguing that he had not been provided for despite his significant contributions to the family. The matter was heard in the Supreme Court of South Australia. The legal issues that the court needed to resolve were whether the testator's will was valid and if there was a basis to disturb the will in light of the son's contributions to the family.

The court considered the provisions of the Succession Act and the circumstances surrounding the testator's will. It examined the nature of the son's contributions to the family, his age, and the fact that he was born from a brief first marriage. The court also considered the relationship between the son and the testator, as well as the testator's intentions as expressed in the will. Ultimately, the court found that there was no basis for disturbing the will, as the testator had made provision for the son's needs through a life interest in the family home and a financial provision. The court also noted that the son had not demonstrated any exceptional circumstances that would warrant a family provision order.

The court's reasoning and outcome were based on a thorough analysis of the relevant law and the facts of the case. The court found that the testator had made adequate provision for the son's needs, and that there was no basis for disturbing the will. The court emphasised the importance of respecting the testator's wishes, as expressed in the will, and noted that the son's contributions to the family were not exceptional enough to warrant a family provision order. The court's decision was based on a careful consideration of the relevant law and the specific circumstances of the case.

The final orders made by the court were that the son's application for a family provision order was dismissed, and that the will of the testator was upheld. The court found that the testator had made adequate provision for the son's needs, and that there was no basis for disturbing the will. The court emphasised the importance of respecting the testator's wishes, as expressed in the will, and noted that the son's contributions to the family were not exceptional enough to warrant a family provision order.

Orders