Pert v Norris-smith - [2007] NSWSC 1427

CITATION: PERT v NORRIS-SMITH & ANOR [2007] NSWSC 1427

HEARING DATE(S): 26, 27 & 28/11/2007

JUDGMENT DATE :
11 December 2007

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ at 1

DECISION: Summons dismissed.

CATCHWORDS: FAMILY PROVISION - de facto relationship over 20 years - testator by will left plaintiff half proceeds of sale of house and also furniture and personal effects - also half share proceeds of insurance - assets about $1,009.000 - residue to 4 adult daughters of testator - plaintiff received assets worth about $40,000 and entitled to $310,000 from sale of house - aged 63 suffering dementia and other disabilities, Age Pension. Medical evidence showed need for hostel care, entry bond $180,000 - HELD provision adequate, application refused.

LEGISLATION CITED: Family Provision Act 1982, ss 7 and 9

CASES CITED: Luciano v Rosenblum [1985] 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Permanent Trustee Co. Ltd v Fraser (1995) 36 NSWLR 2446

PARTIES: Helen Mary Pert - Plaintiff
Penelope Anne Rhoades (previously Norris-Smith) - First Defendant
Cassandra Jane Herbert - Second Defendant

FILE NUMBER(S): SC 4551/2004

COUNSEL: Ms A. Cotter-Moroz - Plaintiff
Mr C. Harris SC - Defendants

SOLICITORS: G.A. Guthrie (Woolgoolga) - Plaintiff
Clinch Neville Long - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Tuesday 11 December 2007

4551/2004 HELEN MARY PERT v PENELOPE ANNE NORRIS-SMITH & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff claims further provision out of the estate of the late Brian Ashton Rhoades, under ss 7 and 9 of the Family Provision Act 1982. He died on 29 November 2003 and this Court granted probate of his will to the defendants on 15 April 2004.

2 The plaintiff and the testator lived together, first at 11 Kinka Road Duffy's Forest and later at 3 Arrawarra Road, Mullaway, New South Wales, in a de facto relationship from a time not exactly established, probably in the years 1981 to 1984, and the relationship continued until his death. They were never married to each other. Their relationship was a domestic relationship and the plaintiff is an eligible person within the definitions in s 6(1). There were serious strains and deeply felt and strongly expressed grounds for dissatisfaction on the part of the testator with the relationship. In the last months of the testator's life there were indications and statements of a wish on his part to end the relationship, but no definitive event brought the relationship to an end. The relationship brought with it an obligation of the testator to make adequate provision for the plaintiff’s maintenance and advancement in life; the testator recognized this by making substantial provision for the plaintiff in his will, although he expressed dissatisfaction with legal advice that he should do so. The plaintiff's claim must pass the tests in s7 and s9 of the Family Provision Act. In accordance with s 9(2) I am not to make an order under s 7 unless satisfied that the provision under the will is at…

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 Pert v Norris-smith

Details

AGLC: Pert v Norris-smith [2007] NSWSC 1427
Case: [2007] NSWSC 1427
Decision Date: 11 December 2007

CaseChat Overview and Summary

The case of Pert v Norris-smith involved a dispute concerning family provision under the Family Provision Act 1982 (Qld). The plaintiff, Pert, had been in a de facto relationship with the deceased, Norris-Smith, for over twenty years. Upon Norris-Smith's death, Pert was bequeathed half of the proceeds from the sale of their shared home, as well as the furniture and personal effects, and half of the insurance payout. The remaining assets were to be distributed to Norris-Smith's four adult daughters. At the time of the hearing, the estate was valued at approximately $1,009,000, with Pert entitled to around $310,000 from the sale of the house, in addition to other assets worth about $40,000. Pert, who was 63 years old and suffering from dementia and other disabilities, was receiving the Age Pension. Medical evidence suggested that Pert would need to enter a hostel, with an entry bond of $180,000.

The legal issues the court needed to address included whether the testamentary provisions made for Pert were adequate, and if the application under the Family Provision Act should be granted. The court had to consider the contributions Pert made to the relationship, the duration of the relationship, and the needs of Pert in light of the estate's total value. Furthermore, the court needed to determine if the provisions made in the will were just and equitable in all circumstances.

The court determined that the provisions made for Pert were adequate. The judge considered the long-term de facto relationship and Pert's contributions, but also weighed these against the significant assets left to the four daughters. The judge held that the distribution was fair and reasonable, taking into account Pert's existing assets and the Age Pension. The court also acknowledged Pert's need for future care, but concluded that the provisions already made were sufficient to meet those needs. The application for further family provision was therefore refused.

The final orders of the court were to dismiss the application for family provision, finding that the provisions made for the plaintiff were adequate and did not require alteration.

Orders