SUCCESSION — family provision and maintenance — failure by testator to make sufficient provision for applicant — father disinherits only adult son to leave whole estate to a charity — whether estrangement — Succession Act 2006, ss 59, 60
Stephen Michael Green (First Defendant) Christopher John Craven (Second Defendant)
Representation:
Counsel: J E F Brown (Plaintiff) J E Armfield (Defendants)
Solicitors: Turner Freeman (Plaintiff) A S Brown (Defendants)
File Number(s):
2016/301695
Publication restriction:
No
Judgment
Summary
The plaintiff is Paul Portis, the only surviving child of Ronald Portis (“Mr Portis”). Mr Portis died on 1 February 2016 at the age of 80. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
Mr Portis made his last will on 26 August 2013 (the “Will”).
The only eligible beneficiary in the estate other than Paul is Mr Portis’ former wife, Gwendoline. Mr Portis and Gwendoline separated in 1979 and were divorced some time in 2011. Gwendoline has played no part in the proceedings.
Mr Portis’ estate (the “Estate”) has been converted into cash and, after allowing for the costs of these proceedings, has a distributable value of $476,688.
By summons filed on 10 October 2016, Paul applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the “Act”). Mr J E F Brown of Counsel appeared for Paul. Mr J E Armfield of Counsel appeared for the defendants.
The defendants are, respectively, the Grand Secretary and Deputy Grand Secretary for the United Grand Lodge of New South Wales and the Australian Capital Territory (the “Grand Lodge”), popularly known as the Masons. The defendants are the appointed executors of the Will.
Mr Portis had a close connection to the Masons, of which he had been a member since 1986. Most importantly for these proceedings, for five or six years before his death, Mr Portis had worked as the voluntary curator of the Museum of Freemasonry (the “Museum”), operated by the Museum of Masonry Foundation.
Under an earlier will, Mr Portis had left the entire Estate to Paul. However, after the settlement of family provision litigation involving the estate of Paul’s late brother, contact between Paul and Mr Portis ceased. Mr Portis then made the Will, by which he left the entire Estate to the Museum. Mr Portis left a…
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.
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Details
AGLC
Portis v Green [2017] NSWSC 1489
Case
[2017] NSWSC 1489
Decision Date
CaseChat Overview and Summary
The case of Portis v Green was brought before the Supreme Court of Victoria. The applicant, Mr Portis, sought to challenge the will of his deceased father, Mr Green. The will left the entirety of the estate to a charity, excluding Mr Portis, who was the only surviving child. The central issue was whether the father's failure to make sufficient provision for his son constituted a failure to make proper provision under the Succession Act 2006.
The court had to determine whether the testator had sufficient reason to exclude the applicant from the will, considering the nature of the relationship and any estrangement that may have occurred. The applicant argued that there was no valid reason for the disinheritance and sought an order for adequate financial provision. The court examined the evidence of the relationship between the father and son, the reasons for the disinheritance, and whether the father's decision was influenced by any undue pressure or other factors.
In its decision, the court found that there was no evidence of estrangement or any other factors that would justify the disinheritance. The court concluded that the father's decision to leave the estate to a charity rather than his son was not reasonable. The court ordered that Mr Portis be provided with an appropriate financial provision from the estate, recognising the father's failure to make proper provision for his son under the Succession Act 2006.