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Pearson v Jones

Pearson v Jones

Case [2000] NSWSC 799 14 August 2000

Family Provision

Claims by Adult Grandchildren

Dependence

Gifts and Benefits

Relevant Need

Entitlement to Order for Provision

Family Law

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CITATION: Pearson & Anor v Jones [2000] NSWSC 799

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1123/99

HEARING DATE(S): 29-31 March 2000

JUDGMENT DATE: 14 August 2000

PARTIES :

Geoffrey Gordon Pearson and Jennifer Margaret Pearson
Philip Wallace Jones

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr A M Gruzman (Plaintiff)
Mr J R Wilson (Defendant)

SOLICITORS: Johnston Vaughan Solicitors (Plaintiff)
Marshall Marks Kennedy Solicitors (Defendant)

CATCHWORDS: Family Provision - Claims by adult grandchildren - Whether or not plaintiffs were partly dependent upon testator - Residence of testator was divided into two separate flats - Testator and her husband lived in one - Plaintiffs and their parents lived in the other - Frequent visitations between the two flats - Testator provided gifts and benefits to plaintiffs and their parents - Where plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the plaintiffs, such gifts and benefits, are not sufficient to establish that the plaintiffs were partly dependent upon testator - Whether there are factors which warrant the making of the application - Whether either or both plaintiffs have otherwise established relevant need - Whether, in any event, either Plaintiff has established an entitlement to an order for provision

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Petrohilos v Hunter (1991) 25 NSWLR 343
Re Fulop (1987) 8 NSWLR 679
Ball v Newey (1988) 13 NSWLR 489

DECISION: 1. I order that the summons be dismissed.; 2. I order that the Plaintiffs pay the cost of the Defendant.; 3. The exhibits may be returned.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Monday, 14 August 2000
1123/99 GEOFFREY GORDON PEARSON and JENNIFER MARGARET PEARSON -v-PHILIP WALLACE JONES
JUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 21 January 1999 the Plaintiffs, Geoffrey Gordon Pearson and Jennifer Margaret Pearson, claim that orders for provision be made for the education, maintenance and advancement in life of each Plaintiff out of the estate of their late grandmother, Edna Annie Pearson (to whom I shall refer as “the Deceased”). 3 The Deceased died on 15 January 1998, aged 95 years. She left a will dated 23 February 1984, probate whereof was on 28 September 1998 granted to Philip Wallace Jones, one of the executors named in such will (who is the Defendant to the proceedings); the other executor pre-deceased the testator. 4 By that will, the Deceased, in the events which have happened, gave the entirety of her estate to the children of her deceased daughter, Marjorie Isabel Lundin. 5 The chief asset in the state of the Deceased was a house property situate at and known as 59 Gale Road, Maroubra. In the inventory of property a value of $675,000.00 is ascribed to that house property. However, it was agreed between the parties that the present value of that property was $700,000. 6 The only other assets 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 Pearson v Jones

Details

AGLC: Pearson v Jones [2000] NSWSC 799
Case: [2000] NSWSC 799
Decision Date: 14 August 2000

CaseChat Overview and Summary

The case of Pearson v Jones involved a dispute under the Family Provision Act 1969 (NSW). The plaintiffs, adult grandchildren, sought to challenge the will of the deceased, their grandmother. They argued that they were partly dependent on her and should receive provision from her estate. The grandmother had divided her residence into two separate flats, residing in one with her husband and the plaintiffs and their parents living in the other. The grandmother provided gifts and benefits to the plaintiffs and their parents. However, the plaintiffs' parents had the primary responsibility for their maintenance, care, and support.

The primary legal issue was whether the plaintiffs were partly dependent on the grandmother, given the nature of their residence and the provision of gifts and benefits. The court also had to determine if there were factors warranting the making of the application and whether the plaintiffs had established relevant need or entitlement to an order for provision. The court examined the degree of dependency and the nature of the gifts and benefits provided, considering the plaintiffs' residence with their parents and their parents' responsibility for their care.

The court found that the plaintiffs were not partly dependent on the grandmother because they were residing with their parents, who had the primary responsibility for their maintenance, care, and support. The gifts and benefits provided by the grandmother, while generous, did not establish the required dependency. The court also considered the factors warranting the making of the application and found that the plaintiffs had not established relevant need or entitlement to an order for provision.

Accordingly, the plaintiffs' claims were dismissed. The court held that the plaintiffs were not partly dependent on the grandmother, and there were no factors warranting the making of the application. The plaintiffs had not established relevant need or entitlement to an order for provision. The estate was to be distributed according to the terms of the will.

Orders