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Peters v Salmon

Peters v Salmon

Case [2013] NSWSC 953 19 July 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Peters v Salmon [2013] NSWSC 953
Hearing dates: 19 to 21 June 2013
Decision date: 19 July 2013
Before: Ball J
Decision:
See paragraphs 93 to 95

Catchwords: SUCCESSION - family provision - provision for adult children - deceased left farming operations to one son - whether orders under the Succession Act 2006 (NSW) s 59 should be made where those orders may affect the continuing viability of farming operations the deceased left to one son to continue
Legislation Cited: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Donaldson v Lawless [2013] NSWSC 861
Harrisson v Skinner [2013] NSWSC 736
Oldereid v Chan [2013] NSWSC 434
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Category: Principal judgment
Parties: Donna Maree Peters (First Plaintiff)
Kerryn Therese Osmond (Second Plaintiff)
Esmae Frances Salmon (First Defendant)
Michael Augustine Salmon (Second Defendant)
Sue Frances Salmon (Third Defendant)
Representation: M Meek SC (Plaintiffs)
D A Smallbone (Defendants)
Peter Evans & Associates (Plaintiffs)
RJI Legal (Defendants)

File Number(s): 2012/60490
Publication restriction: Nil

Judgment

Introduction

This is an application by two adult daughters under Division 1, Part 3.2 of the Succession Act 2006 (NSW) (the Act) for family provision orders in favour of each of them in relation to the estate of their father, Maurice Augustine Salmon (the deceased), who died on 26 February 2011 at the age of 87.

The Deceased was survived by his wife, Esmae Francis Salmon (Mrs Salmon) and 7 children - Sue Francis Salmon (Sue), who was born in October 1950 and is 62, Jan Elizabeth Hay (Jan), who was born in April 1952 and is 61, Kerryn Therese Osmond (Kerryn) who was born in September 1956 and is 56, Donna Maree Peters (Donna), who was born in March 1960 and is 53, Michael Augustine Salmon (Michael), who was born in October 1962 and is 50, Luke Antony Salmon (Luke), who was born in March 1965 and is 48 and Shane Patrick Salmon (Shane), who was born in June 1967 and is 46. The Deceased had another daughter, Meryl, who predeceased him.

The deceased's principal asset was a farm, spread over a number of properties located at Currawarna, approximately 26 kms north east of Wagga Wagga. Since 1994 the farm has been used exclusively to run cattle and to produce hay and crops that are largely, if not entirely, used for feeding those cattle.

The properties

Set out below is a table which identifies each property owned by the deceased, its size and value for the purposes of probate, and provides a brief description of the property and how the deceased came to acquire it.

Name

Size
(acres)

Probate Value ($)

Description

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 Peters v Salmon

Details

AGLC: Peters v Salmon [2013] NSWSC 953
Case: [2013] NSWSC 953
Decision Date: 19 July 2013

CaseChat Overview and Summary

The case of Peters v Salmon involved a dispute over the distribution of a deceased's estate under the Succession Act 2006 (NSW). The deceased, who operated a farming business, left the majority of his estate to his son, who continued the farming operations. The deceased's widow and other children sought additional provision from the estate, arguing that the current distribution did not meet their reasonable financial needs and expectations. The primary legal issue for the court was whether the orders for additional provision under s 59 of the Succession Act should be made, particularly considering the potential impact on the farming operations left to the son.

The court considered the statutory criteria for making orders under s 59, focusing on whether the deceased had made inadequate provision for the petitioner's reasonable financial needs and expectations. The court also examined the implications of any additional orders on the farming operations, which were critical to the estate's ongoing viability. The court weighed the interests of the deceased's widow and children against the need to preserve the farming operations for the son who continued the business. In its reasoning, the court recognised the importance of the deceased's autonomy in estate distribution but also the necessity to provide for the reasonable financial needs of the family members.

Ultimately, the court determined that the deceased had made adequate provision for the widow and other children, considering both their financial needs and the importance of maintaining the farming operations. The court found that any additional orders would likely jeopardise the viability of the farming business, which was crucial to the estate. Consequently, the court declined to make orders for additional provision under s 59 of the Succession Act. The court emphasised the balance between family needs and the preservation of the deceased's intentions regarding the estate.

Orders