Potet v Banks - [2011] NSWSC 1442

Supreme Court

New South Wales

Medium Neutral Citation: Potet v Banks [2011] NSWSC 1442
Hearing dates: 22/11/2011
Decision date: 22 November 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)I dismiss the proceedings;
(2)On condition that any costs order is not sought to be enforced against the plaintiff or her tutor personally, I order the plaintiff to pay the defendant's costs on the ordinary basis.

Catchwords: WILLS AND ESTATES - Family Provision Act 1982 - application for provision order by deceased's child (by her tutor) - defendant the deceased's de facto at the time of death - applicant and defendant's child by the deceased both suffering health problems - small estate - application dismissed
Legislation Cited: Family Provision Act 1982
Property (Relationships) Act 1984
Cases Cited: Singer v Berghouse (1994) 181 CLR 201
Category: Principal judgment
Parties: Anne Jolie Elise Potet by her tutor Susan Lynn-Brandon Potet
Tanya Caroline Banks
Representation: Counsel:
Mr D Bernie for plaintiff
Mr L Ellison SC for defendant
Solicitors:
SCLAdvisors for plaintiff
Roberts Mann Solicitors for defendant

File Number(s): S009/00290907

Judgment

HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of Adam Petrie (also known as Adam Federow) who died on or about 14 or 15 April 2008 by his own hand. He was survived by the defendant, who had been his de facto partner for some 18 months, and their child Brandon, who was born two months before his father's death.

He was also survived by another child, Anne, who was a child of the second wife of the deceased. She is the plaintiff in the proceedings.

A former de facto spouse and her children have been served with notice and make no claim.

The deceased's first wife, Jane Hawkins, and their children cannot be found. I am satisfied that it is impractical to serve them.

Last will of deceased

The deceased's handwritten suicide note left on 14 April 2008 before he died, which was proved to be his will, left all his property to the defendant, Tanya. She obtained a grant of administration cta.

Estate of deceased

The estate included his home at Broga, New South Wales, worth $300,000, insurance and death benefit of $49,599, a bike sold later for $8,000 and a Falcon utility now worth $3,500. There were debts of $200,645 plus an amount of $29,000 said to be due by the deceased to the defendant.

The home has been sold and some of the debts paid out. All that remains in the estate is the remaining proceeds of sale of $73,134.95 and a Ford ute worth $3,500 which cannot be sold.

The funds are held by the defendant's solicitor in a controlled money account.

The superannuation of ultimately $50,140 was paid out as follows: Zoe Wheelhouse, a daughter of a previous de facto of the deceased, the sum of $10,000; the defendant the sum of $40,150. The defendant used this sum to pay out the finance on a Toyota Rav 4…

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 Potet v Banks

Details

AGLC: Potet v Banks [2011] NSWSC 1442
Case: [2011] NSWSC 1442
Decision Date: 22 November 2011

CaseChat Overview and Summary

The case of Potet v Banks involved the child of a deceased individual, represented by a tutor, seeking a provision order from their father's estate under the Family Provision Act 1982. The deceased's de facto partner at the time of death was the defendant. Both the applicant and the de facto partner's child with the deceased experienced health issues. The estate was relatively modest. The court was tasked with determining whether the deceased had made reasonable financial provision for the applicant.

The court had to decide if the deceased had failed to make reasonable financial provision for the applicant under the Family Provision Act 1982. The court had to consider the health problems of both the applicant and the child born to the deceased and the de facto partner, as well as the size of the estate. The court also had to evaluate whether the deceased had acted reasonably in making provision for the applicant from the estate.

The court determined that the deceased had made reasonable financial provision for the applicant, taking into account the health issues of both the applicant and the de facto partner's child, as well as the modest size of the estate. The court found that the deceased had acted reasonably in making provision for the applicant from the estate, and therefore dismissed the application for a provision order. The court held that the deceased had not failed to make reasonable financial provision for the applicant under the Family Provision Act 1982.

The court dismissed the application for a provision order, finding that the deceased had made reasonable financial provision for the applicant under the Family Provision Act 1982. The court's decision was based on its assessment of the health issues of both the applicant and the de facto partner's child, as well as the size of the estate. The court held that the deceased had acted reasonably in making provision for the applicant from the estate, and therefore the application was dismissed.

Orders