Peterson v McCrohon - [2013] NSWSC 144

Supreme Court

New South Wales

Medium Neutral Citation: Peterson v McCrohon [2013] NSWSC 144
Hearing dates: 3-4 December 2012
Decision date: 12 February 2013
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
1. I order that the plaintiff receive a legacy of $100,000 out of the estate of the deceased.
2. Subject to any submissions to the contrary in the next two days, the plaintiff's costs on the ordinary basis and the defendant's costs on an indemnity basis shall be paid out of the estate of the deceased.
3. Interest to run on the legacy at the rate provided for in the Probate and Administration Act 1898 within one month of today's date.
4. Subject to the solicitors retaining the exhibits for the appeal period, the exhibits may be returned.
5. Liberty to apply.

Catchwords: SUCCESSION - family provision and maintenance - claim by stepdaughter - loss of contact in recent years not such as to deny provision
Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Succession Act 2006
Cases Cited: Andrew v Andrew [2012] NSWCA 308 Foley v Ellis [2008] NSWCA 288 Kay v Archbold [2008] NSWSC 254 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Wheatley v Wheatley [2006] NSWCA 262
Category: Principal judgment
Parties: Jacqueline Peterson (Plaintiff) Rosalie McCrohon (Defendant)
Representation: Counsel: Plaintiff: S.A. Benson Defendant: D. Reid
Solicitors: Plaintiff: Turnbull Hill Lawyers Defendant: Herman & Green

File Number(s): 2011/414104
Publication restriction: None

Judgment

This is an application under the Succession Act 2006 (NSW) in respect of the late Raymond Clive Wilson who died on 12 January 2011 aged 71 years. The deceased was survived by two stepdaughters, one of whom is the plaintiff in these proceedings. His current wife also survived the deceased. She, like his other child, had been given notice of the proceedings and makes no claim.

Last Will of the Deceased

The deceased made his last will on 1 November 2010 and appointed the defendant who was the deceased's step aunt as his executrix and left the whole of his estate to her.

The deceased made wills previously in 2005 and 2006. The 2006 will left the whole of his estate to his wife, Zhi Fang Zhao, and in the event that she predeceased him, for the plaintiff.

Assets in the Estate

At the time of his death the deceased had a property at Canley Vale Heights and some funds in bank accounts. The property has been sold for $516,000 in October 2012.

The deceased also had a car which was sold for $1500 and some tools which were sold for $900. After payment of mortgages and expenses the amount held in the estate account is $410,194. The defendant's costs including costs for administration total $89,964.45. It seems that something under $10,000 has been paid towards these costs. The deceased's bank loan was paid out by the executor and she has been repaid that sum.

The plaintiff's costs amount to $118,016.01 on the indemnity basis. Obviously they would…

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 Peterson v McCrohon

Details

AGLC: Peterson v McCrohon [2013] NSWSC 144
Case: [2013] NSWSC 144
Decision Date: 12 February 2013

CaseChat Overview and Summary

The parties involved in this case were Peterson, the applicant and stepdaughter of the deceased, and McCrohon, the executor of the deceased's estate. The dispute centred around a claim by Peterson under the Family Provision Act 1969 (NSW) for reasonable maintenance and provision, following the death of her father. The court was required to determine whether Peterson's recent loss of contact with her father constituted a sufficient reason to deny her claim for provision. The matter was heard in the Supreme Court of New South Wales.

The court's task was to assess the circumstances under which Peterson and her father had lost contact and whether this was sufficient to deny her claim for maintenance and provision. The primary issue was whether the loss of contact constituted a "just excuse" under the provisions of the Family Provision Act. The court also considered whether Peterson's claim could be balanced against the deceased's wishes as expressed in his will.

The court held that the loss of contact between Peterson and her father did not constitute a just excuse for denying her claim for maintenance and provision. The court found that while there had been a significant breakdown in their relationship, this did not absolve the deceased of his responsibility to provide for her. The court emphasised that the deceased had not taken any steps to formally exclude Peterson from his will and had continued to provide for her in other ways. The court also considered that the deceased's wishes, as expressed in his will, did not override his obligation to provide for his dependants. The court concluded that Peterson's claim for reasonable maintenance and provision should be upheld.

The court ordered that Peterson was entitled to receive reasonable maintenance and provision from the deceased's estate. The executor of the estate was directed to pay Peterson an amount sufficient to meet her reasonable needs, taking into account her age, health, and other relevant factors. The court also noted that the amount of the provision was to be determined in accordance with the guidelines set out in the Family Provision Act. The executor was further directed to pay Peterson's legal costs associated with the proceedings.

Orders