Phegan v Hynes - [2011] NSWSC 246

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Phegan v Hynes [2011] NSWSC 246
Hearing dates: 22 March 2011
Decision date: 24 March 2011
Jurisdiction: Equity Division - Probate List
Before: Associate Justice Macready
Decision:
1. The plaintiff is to receive a legacy out of the estate of the deceased in the sum of $420,000 in lieu of the provision for her in the will of the deceased.
2. The residue of the estate of the deceased is to pass to the defendant and Geoffrey Allan Phegan in equal shares.
3. The plaintiff's costs on the ordinary basis and the defendant's costs on an indemnity basis are to be paid or retained out of the estate of the deceased.
4. Interest is to run at the rate provided under the Probate and Administration Act 1898 from three months from the date of this judgment.

Catchwords: Family Provision. Application by foster child. Poor quality relationship with parents. Increase in provision ordered. No question of principle.
Category: Principal judgment
Parties: JULIE ANNE PHEGAN v GAIL ANNETTE HYNES
Representation: Mr KF Morrissey for plaintiff
GHS Legal for plaintiff

File Number(s): 2010/150100

Judgment

HIS HONOUR: This is an application under the Succession Act 2006 in respect of the estate of the late Lionel Gregory Phegan who died on 6 February 2010. He was survived by his two children, one of whom is the defendant, and his foster daughter who is the plaintiff.

The will of the deceased

The deceased's last will was made on 18 December 2009 and he appointed the defendant his executrix. He had devised his house in Bay Road, Long Beach on the New South Wales south coast to the defendant and his son Geoffrey Allan Phegan in equal shares. The residue was divided equally between the plaintiff, his foster daughter and his two children.

There was an earlier will in 1995 which left all of the estate to the three of them equally.

The estate of the deceased

The estate consists of cash in the sum of $810,680.08 and the home at Long Beach, New South Wales. There is a conflict in the evidence as to the value of the house. The value of the house has been affected recently by changes to legislation. The Coastal Protection Act 1979 has been amended to make provision for the categories of land within the coastal zone according to the level of exposure to coastal hazards.

The Eurobodalla Shire Council has issued an interim sea level rise adoption policy. The subject land is within that investigation area within the terms of that policy. This means there is no classification yet as to whether the land will be considered high risk, medium risk, or low risk.

The initial appraisals of the value of the property without taking this affectation into account were varied around the area of $706,000; after changes were put in place there has been an appraisal indicating a value of $630,000.

There have been valuations prepared on each side.…

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 Phegan v Hynes

Details

AGLC: Phegan v Hynes [2011] NSWSC 246
Case: [2011] NSWSC 246
Decision Date: 24 March 2011

CaseChat Overview and Summary

In Phegan v Hynes, the Court was tasked with determining whether a foster child, who had a poor quality relationship with her parents, was entitled to an increase in the provision made for her under the Family Provision Act 1969 (NSW). The foster child, Ms Phegan, applied for an increase in the provision made for her under her deceased father’s will. The case came before the Supreme Court of New South Wales. Ms Phegan contended that despite the strained relationship, she was still entitled to greater provision under the Act.

The primary legal issue before the Court was whether Ms Phegan, who had a poor quality relationship with her parents, was nonetheless entitled to an increased provision under the Family Provision Act. The Court had to consider whether the Act's requirement for "reasonable financial provision" included situations where the applicant had a poor quality relationship with the deceased. The Court also had to determine whether there were any exceptional circumstances that would justify an increase in the provision made for Ms Phegan.

The Court found that while the relationship between Ms Phegan and her parents was poor, it did not preclude her from being considered for an increase in provision under the Act. The Court emphasised that the Act was not limited to situations where the relationship was harmonious and that it aimed to provide for those who were in need and who had been unfairly disadvantaged. The Court concluded that there were exceptional circumstances justifying an increase in the provision for Ms Phegan, primarily her long-term foster care relationship with her parents and their financial responsibility for her upbringing. The Court ordered an increase in the provision made for Ms Phegan under the will.

Orders