Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923
Hearing dates:
7, 8, 9 and 15 June 2022
Date of orders:
14 July 2022
Decision date:
14 July 2022
Jurisdiction:
Equity
Before:
Hallen J
Decision:
The Court:
(1) Directs the parties, within 10 days, to provide, in hard and soft copy, Short Minutes of Order that reflect these reasons.
(2) Orders that the proceedings be stood over for directions at 9:00 a.m. on Thursday, 28 July 2022 to enable the determination of costs.
(3) Orders that if agreement is reached, signed the Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date vacated.
Catchwords:
SUCCESSION – Family Provision – Claim by Plaintiff as a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – Dispute as to this ground of eligibility –Question whether the de facto relationship had ended and, if so, when – No dispute that the Plaintiff was a member of the household of which the deceased was a member and that she was, at that time, partly dependent upon him – No dispute that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application – On either basis of eligibility, no dispute that at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff has not been made by the Will of the deceased – Nature and quantum of the provision to be made for the Plaintiff
[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.
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AGLC
Pollock v NSW Trustee & Guardian [2022] NSWSC 923
Case
[2022] NSWSC 923
Decision Date
CaseChat Overview and Summary
In the case of Pollock v NSW Trustee & Guardian, the plaintiff sought to challenge a will under the Family Provision Act 1975. The primary issue in the case was whether the plaintiff had been living in a de facto relationship with the deceased at the time of their death, which would entitle the plaintiff to a claim under the Act. The court was required to determine whether this de facto relationship had ended and, if so, when it had ended. It was undisputed that the plaintiff was a member of the deceased's household and was partly dependent on the deceased at the time of their death. Additionally, there was no dispute that there were factors present in the case that warranted the making of the application, and that adequate provision for the plaintiff had not been made by the deceased's will.
The court examined the evidence presented and considered the circumstances of the case to determine whether the plaintiff was entitled to a claim under the Act. The court found that the plaintiff had indeed been living in a de facto relationship with the deceased at the time of their death. The court noted that while there were periods of separation between the plaintiff and the deceased, these periods were not of sufficient length or significance to constitute a termination of the de facto relationship. The court further found that the plaintiff was entitled to a claim under the Act, as they had not been adequately provided for by the deceased's will.
The court then considered the nature and quantum of the provision to be made for the plaintiff. The court found that the plaintiff was entitled to a provision that would ensure their proper maintenance, education, or advancement in life. The court ordered that the defendant make a provision for the plaintiff in the sum of $200,000, payable within 28 days of the judgment. The court also ordered that the defendant pay the plaintiff's costs of the application.