Phillips v James - [2012] NSWSC 688

Supreme Court

New South Wales

Medium Neutral Citation: Phillips v James [2012] NSWSC 688
Hearing dates: 15 May &16 May, 13 June 2012
Decision date: 22 June 2012
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Claim for family provision refused

Catchwords: SUCCESSION - family provision - application by adult son - application made after estate distributed - whether applicant consented in writing to distribution - notional estate - reasonable expectations as to property - justice and merits of making order for provision
Legislation Cited: Succession Act 2006
Cases Cited: Cabban v Cabban [2010] NSWSC 1433
Foley v Ellis [2008] NSWCA 288
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Lajcarova v Todorov [2011] NSWSC 522
McKenzie v Topp [2004] VSC 90
Singer v Berghouse (No 2) (1994) 181 CLR 201
The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Category: Principal judgment
Parties: Brian Phillips (plaintiff)
Gaye James (first defendant)
Gary Phillips (second defendant)
Representation: Counsel:
S Galitsky (plaintiff)
P W Bates (defendants)
Solicitors:
D Stanefska & Associates (plaintiff)
Needs Chan & Monahan (defendants)

File Number(s): SC 2010/420872

Judgment

Introduction

This is an application by an adult son for family provision from the estate of his late mother.

As the whole of the estate has been distributed, provision can only be made from the deceased's notional estate.

Background

The proceedings concern the estate of the late Hazel Florence Phillips.

For convenience, and without intending any disrespect, I shall refer to the persons involved in these proceedings by their given names.

The deceased ("Hazel") died in April 2010. She was 89 years of age.

Hazel was the widow of Edgar John Phillips ("Edgar") who died in July 2006.

Hazel and Edgar had three children: -

(a) the plaintiff, Brian Phillips ("Brian") who is now aged 62;

(b) the first defendant, Gaye James ("Gaye") who is now aged 60; and

Hazel left a will dated 4 February 2003 ("the Will"). Hazel appointed Gaye and Gary as her executors.

Pursuant to the Will Hazel left: -

(a) her property at Gibbes Street, Rockdale ("the Gibbes Street Property") to Gary;

(b) her property at Cameron Street, Rockdale ("the Cameron Street Property") to Gaye; and

The Will was admitted to probate on 17 June 2010.

By 20 September 2010, all but $2,280.66 of the Estate had been distributed.

As to the Gibbes Street Property and the Cameron Street Property, Transmission Applications were lodged with Land and Property Information on 9 July 2010. As a result, Gary became the registered proprietor of the Gibbes Street Property and Gaye became the registered proprietor of the Cameron Street Property as at that date.

The Residue (comprising cash totalling $164,603.97) was distributed to Brian. as to $150,000 on 27 July 2010 as an "interim distribution", and as to $14,603.97 on 21 September 2010…

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 Phillips v James

Details

AGLC: Phillips v James [2012] NSWSC 688
Case: [2012] NSWSC 688
Decision Date: 22 June 2012

CaseChat Overview and Summary

The case of Phillips v James involved an application by the adult son of the deceased, James Phillips, seeking provision from his father's estate under the Family Provision Act 1969. The dispute centred on whether the son had consented in writing to the distribution of the estate and whether the court should consider his reasonable expectations as to property. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to decide were whether the son's written consent to the distribution of the estate precluded the court from considering his application for provision and whether the son's reasonable expectations as to property warranted an order for provision under the Act. The court also had to determine the notional estate to assess the son's reasonable expectations and whether it was just and equitable to make an order for provision.

In its judgment, the court held that the son's written consent to the distribution did not preclude the court from considering his application for provision. The court found that the son had not understood the full implications of his consent when he signed the document. Regarding the son's reasonable expectations, the court considered the size and value of the estate, the son's contributions to the estate, and the circumstances of the deceased and his family. The court concluded that the son's reasonable expectations warranted an order for provision. The court then determined the notional estate and made an order for provision in favour of the son.

The court ordered that the estate be divided, with the son receiving a specified sum from the estate. The court also directed that the costs of the application be paid by the estate.

Orders