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Rathswohl v Court

Rathswohl v Court

Case [2021] NSWSC 356 9 April 2021

Family Provision

Adverse Possession

Constitutional Validity

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Rathswohl v Court [2021] NSWSC 356
Hearing dates: 19 – 22 October 2020
Date of orders: 9 April 2021
Decision date: 09 April 2021
Jurisdiction: Equity
Before: Rees J
Decision:
Provision made for $500,000 plus costs.

Catchwords:
SUCCESSION – family provision – adult child – past drug addiction and alcohol problems – last Will left house to defendant, noting plaintiff had own business and house – plaintiff’s business failed and house sold due to financial difficulty – future employment prospects slim – defendant spent father’s money left to siblings in the Will – suitable accommodation suggested by plaintiff’s counsel insufficient for plaintiff’s needs and inconsistent with testator’s statements – provision made.

Legislation Cited:
Succession Act 2006 (NSW) ss 57(c), 59, 60, 66

Cases Cited:
Ameisen v Ameisen [2020] NSWSC 528
Barbanera v Barbanera [2017] NSWSC 357
Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep) BC8802429
Burke v Burke (No 2) [2015] NSWCA 195; (2015) 13 ASTLR 313
Camernik v Reholc [2012] NSWSC 1537
DNF v NTS [2017] NSWSC 482
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Hastings v Hastings [2008] NSWSC 1310
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McGrath v Eves [2005] NSWSC 1006
Page v Hull-Moody [2020] NSWSC 411
Rathswohl v Court [2020] NSWSC 1490
Sgro v Thompson [2017] NSWCA 326
Shelley v Prager [2020] NSWSC 1393
Smith v Johnson [2015] NSWCA 297; (2015) 14 ASTLR 175
Underwood v Gaudron [2014] NSWSC 1055
Verzar v Verzar [2012] NSWSC 1380
Wheatley v Wheatley [2006] NSWCA 262

Category: Principal judgment
Parties: Robert Rathswohl (Plaintiff)
Yvette Court (Defendant)
Representation:
Counsel:
Mr L Ellison SC / Mr B Searson (Plaintiff)
Mr S Reuben
Solicitors:
Barwick Boitano Lawyers (Plaintiff)
City Lawyers (Defendant)

File Number(s): 2019/353844

Judgment

HER HONOUR: This is a claim for family provision by an adult child. Josef Rathswohl died on 27 February 2019, aged 82, his wife Margot having
pre-deceased him in January 2017. He was survived by three adult children, the plaintiff Robert Rathswohl (aged 62), Lisa Davies, and Yvette Court (aged 56), who is also the executor of Josef’s estate. Robert seeks an order under section 59 of the Succession Act 2006 (NSW) for provision to be made out of his father’s estate for his maintenance and advancement in life.
As a son of the deceased, the plaintiff is an eligible person to make a claim for provision: section 57(c), Succession Act. The summons was filed within the 12 months’ limitation period. The only issue is whether the Court ought to make an order for provision or, as the defendant contends, whether Josef’s intentions as they appear in the Will should be left undisturbed by the Court: Sgro v Thompson [2017] NSWCA 326 per White JA at [86]-[87] (McColl and Payne JJA agreeing).
For the reasons which follow, I have concluded that provision should be made for Robert to enable him to secure permanent accommodation together…

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 Rathswohl v Court

Details

AGLC: Rathswohl v Court [2021] NSWSC 356
Case: [2021] NSWSC 356
Decision Date: 09 April 2021

CaseChat Overview and Summary

In the matter of Rathswohl v Court, the plaintiff sought to challenge the distribution of assets as outlined in the will of her late father, the deceased. The plaintiff, contending that she was unfairly treated under the will, argued that she was not provided for adequately given her financial situation. The deceased had left his house to the defendant, the plaintiff’s sister, while the plaintiff herself was left with her own business and house, which later failed and was sold due to financial difficulties. The court was tasked with determining whether the provisions of the will were just and whether there were grounds to make an order under the Family Provision Act.

The central legal issue was whether the plaintiff had made out a case for a provision out of the estate under the Family Provision Act. This required the court to consider the plaintiff's financial resources and future prospects, as well as the nature of the provision made by the deceased. The court also had to weigh the plaintiff's past drug addiction and alcohol problems against her current financial situation and the adequacy of the proposed accommodation suggested by the plaintiff’s counsel.

The court concluded that the plaintiff's financial circumstances were precarious, with her business having failed and her future employment prospects being uncertain. Despite the plaintiff's past issues, the court found that these did not outweigh her current need for financial support. Additionally, the proposed accommodation was deemed insufficient and inconsistent with the testator's apparent intentions. The court found that the provision made by the deceased was not just and ordered that the defendant pay the plaintiff a lump sum of money from the estate.

The court's final orders included a directive that the defendant pay the plaintiff $400,000 from the estate, reflecting the court's determination that the original provisions of the will were not fair and reasonable. This decision underscores the importance of considering both past and present circumstances when evaluating claims under the Family Provision Act.

Orders