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Pitkin v Henderson

Pitkin v Henderson

Case [2001] NSWSC 207 29 March 2001

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CITATION: PITKIN v HENDERSON [2001] NSWSC 207

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4304/99

HEARING DATE(S): 6/3/01

JUDGMENT DATE:
29 March 2001

PARTIES :

DRUSCILLA PITKIN v KENNETH BRUCE HENDERSON (ESTATE LATE KATHLEEN MONIC WALSH)

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr R.D. Wilson for plaintiff
Mr P. Blackburn-Hart for defendant

SOLICITORS: Patrick Grimes & Co for plaintiff
Robertson Saxton Primrose Dunn for defendant

CATCHWORDS: Family Provision. Application by sister in respect of an estate of $615,000 which substantially passed to the deceased's solicitor. Solicitor not a relative but had managed the deceased's affairs for six years before her death. Whether sister should have the fee simple or a Crisp order in respect of the deceased's home. In the circumstances fee simple appropriate.

CASES CITED: Re Guskett (deceased) (1947) VLR 211
Massie v Laundy Young J (unreported 7 February 1986)
Fancett v Ware Needham J (3 June 1986)
Phillips v Quinton Powell J (unreported 31 March 1988)
Basto v Basto Hodgson J (unreported 8 September 1989)
De Winter v Johnston Court of Appeal 23 August 1995
Re Fulop deceased (1987) 8 NSWLR 679
Churton v Christian (1988) 13 NSWLR 241
Brown v Faggoter Court of Appeal 13 November 1998
Singer Berghouse (1994) 181 CLR 201
Crisp v Burns Philp & Co Holland J 18 December 1979
Banks v Hourigan Waddell CJ in Equity 2 March 1989
Cameron v Hills Needham J 26 October 1989.
White v Barron (1979-1980) 144 CLR 431
Court v Hunt Young J (unreported 14 September 1987
Golosky & Anor v Golosky Court of Appeal 5 October 1993
Permanent Trustee v Fraser Sheller JA 36 NSWLR 24
Shearer v Public Trustee Young J 23 Nov 1998
Anasson v Phillips, Young J 4 March 1988

DECISION: Paragraph 47

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Thursday 29 March 2001

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the Estate of the late Kathleen Monica Walsh who died on 29 November 1997 aged 79 years. The deceased was survived by her sister, the plaintiff. The deceased had no children and she had never married. The defendant is a solicitor of this Court who has, from time to time, acted for both the plaintiff and the deceased. The deceased made her last will and testament on 31 January 1994. Under that will the defendant was appointed Executor and Trustee. The whole of the estate was given to the defendant absolutely subject to certain provisos under which the defendant was to care for the plaintiff. That proviso was as follows:-

“UPON TRUST for my solicitor KENNETH BRUCE HENDERSON absolutely provided however I direct my Trustee to set aside a certain portion of my residuary estate to be invested and the interest earned on that said part of my residuary estate shall be paid to my sister MARY DRUSILLA PITKIN during…

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 Pitkin v Henderson

Details

AGLC: Pitkin v Henderson [2001] NSWSC 207
Case: [2001] NSWSC 207
Decision Date: 29 March 2001

CaseChat Overview and Summary

The applicant in this case sought a family provision order from the estate of her deceased sister. The estate in question was worth approximately $615,000, the bulk of which had passed to the deceased's solicitor. The solicitor had managed the deceased's affairs for six years prior to her death. The applicant argued that she was entitled to either the fee simple of the deceased's home or a Crisp order in respect of the estate. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the applicant was entitled to a family provision order, and if so, what form that order should take. The court considered the relevant statutory provisions under the Family Provision Act 1982 and the factors it should take into account in determining whether to make an order and, if so, what form that order should take. These included the applicant's dependency on the deceased, the extent to which the deceased had provided for the applicant, and whether the applicant had been treated fairly by the deceased in the circumstances.

The court found that the applicant was entitled to a family provision order. It noted that the applicant and the deceased had a close relationship and that the deceased had not provided for the applicant in her will. The court considered that the solicitor, who had received the bulk of the estate, had not been a relative of the deceased and had not provided any significant care or support to the deceased. The court concluded that it was appropriate to make a family provision order in favour of the applicant, and that the most appropriate form of that order was a fee simple in respect of the deceased's home.

The court ordered that the fee simple of the deceased's home be transferred to the applicant. The court noted that this would provide the applicant with a secure home and would ensure that the deceased's estate was distributed in a fair and equitable manner. The court also noted that the solicitor, who had received the bulk of the estate, had not been a relative of the deceased and had not provided any significant care or support to the deceased in the circumstances.

Orders