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Page v Page

Page v Page

Case [2016] NSWSC 1218 6 September 2016

Family Provision Order

Eligible Person

Dependancy

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Page v Page [2016] NSWSC 1218
Hearing dates: 15, 16 and 17 August 2016
Date of orders: 06 September 2016
Decision date: 06 September 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s Summons be dismissed.

Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the brother of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased and the executrix appointed under the Will to whom Probate granted – No provision for the Plaintiff made in deceased’s Will – Small actual estate in NSW and in Vanuatu – No competing financial claimants although widow and her children are beneficiaries named in the Will – Allegation of sexual abuse by deceased of the Plaintiff when members of the same household – Conduct of the deceased towards the Plaintiff - Whether the Plaintiff an eligible person - Whether wholly or partly dependant on the deceased – Whether factors warranting the making of the Plaintiff’s application – Unnecessary to decide whether adequate and proper provision not made in Will of the deceased for the Plaintiff because Court not satisfied that Plaintiff is an eligible person or that there are factors warranting the making of his application.
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Court (Suppression and Non-Publication Orders) Act 2010 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199
Alexander v Jansson [2009] NSWSC 1000
Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Bayssari v Bazouni [2014] NSWSC 910
Broadcasting Corporation (NZ) v Attorney-General [1982] 1 NZLR 120
Brown v Faggoter [1998] NSWCA 44
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646
Chen v Lu [2014] NSWSC 1053
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 54
Dunn v McCarthy [2010] NSWSC 675
Boniadian v Boniadian; Beniation v Boniadian [2004] NSWSC 499
Evans v Levy [2011] NSWCA 125
Fallow v Mullins [2012] NSWSC 406
Global Torch Ltd v Apex Global Management Ltd [2013] EWHC 223
Hume v The Council of the Kings School [2010] NSWSC 186
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of…

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 Page v Page

Details

AGLC: Page v Page [2016] NSWSC 1218
Case: [2016] NSWSC 1218
Decision Date: 06 September 2016

CaseChat Overview and Summary

The case of Page v Page involved a claim by the Plaintiff, the brother of the deceased, seeking a family provision order under Chapter 3 of the Succession Act 2006. The Defendant, the widow and executrix of the deceased, opposed the application. The dispute centred around the deceased’s Will, which made no provision for the Plaintiff, and the distribution of a modest estate in New South Wales and Vanuatu. The Plaintiff alleged that the deceased had sexually abused him while they lived together and claimed that the Defendant's actions and omissions warranted his application. The Plaintiff argued that he was wholly or partly dependent on the deceased and sought relief under the Family Provision Act.

The court was required to determine whether the Plaintiff qualified as an "eligible person" under the Act and if there were sufficient grounds for his application. Specifically, the court needed to assess the Plaintiff’s dependency on the deceased and whether the alleged conduct warranted a family provision order. The court considered the allegations of sexual abuse and the Plaintiff’s claim of dependency, as well as the nature of the estate and the distribution under the Will. The court held that it was not necessary to decide whether adequate and proper provision had been made for the Plaintiff because it found that the Plaintiff did not meet the criteria of an eligible person and that the factors presented did not warrant the making of his application.

The court concluded that the Plaintiff was not an eligible person under the Act and did not demonstrate the necessary dependency on the deceased. The court found that the Plaintiff’s application was not warranted by the factors presented, and therefore, the Plaintiff’s claim was dismissed. The court did not reach the question of whether adequate and proper provision had been made in the Will because it found the Plaintiff did not meet the eligibility requirements or present sufficient grounds for his application.

Orders