This decision has been amended. Please see the end of the decision for a list of the amendments.
Supreme Court
New South Wales
Case Title:
Reynolds v Reynolds
Medium Neutral Citation:
[2011] NSWSC 83
Hearing Date(s):
Thursday 24 February 2011
Decision Date:
24 February 2011
Jurisdiction:
Before:
Associate Justice Macready
Decision:
The orders I make are: 1. That the property situated at 469 Sydney Road, Balgowlah, New South Wales, being the land comprised in Folio Identifier B/445642 be designated as notional estate pursuant to the Succession Act2006. 2. That in lieu of the provisions contained in paragraphs 4, 5 and 7 of the will of the deceased in favour of the plaintiff, that the plaintiff received a legacy of $270,000. 3. The New South Wales Trustee and Guardian be appointed as trustee of the land. 4. That the said land be vested in the Trustee subject to any encumbrances effecting the entirety of the said land but free from encumbrances, if any, affecting any undivided share or shares to be held by the said Trustee upon statutory trust for sale under section 66 of the Succession Act2006. 5. That the defendants deliver the Title Deed for the land comprised in Folio Identifier B/445642 to the Trustee forthwith. 6. That the defendants vacate the property at least seven days prior to settlement of the sale of the property. 7. That the Trustee distribute to the parties the net proceeds of sale after payment of selling expenses (including the Trustees commission and fees, disbursements, agents selling commission and other expenses including advertising expenses) in the following proportions: a. As to the sum of $250,000 to the plaintiff, Pearl Therese Reynolds; b. As to sum of $20,000 to the Plaintiff's solicitors on account of the plaintiff's costs and outlays in the proceedings inclusive of goods and services tax; c. As to the remainder, to the defendants in equal shares. 8. All outgoings in respect of the land are to be deducted or adjusted from the defendants' share of net proceeds of sale. 9. Liberty to apply by either party upon seven days notice.
Catchwords:
Family Provision. Application by a daughter under Succession Act. Defendants do not appear. Order for provision. No matter of principle.
Legislation Cited:
Cases Cited:
Texts Cited:
Category:
Principal judgment
Parties:
PEARL THERESE REYNOLDS v VINCENT JOSEPH REYNOLDS and RICHARD PAUL REYNOLDS
Representation
- Counsel:
Counsel: Ms S McLeod for plaintiff
- Solicitors:
Solicitors: Hayward & Co Lawyers
File number(s):
2010/139054
Publication Restriction:
JUDGMENT
HIS HONOUR: This is an application under the Succession Act in respect of the estate of the late Edith Pearl Reynolds who died on 6 June 2009 aged 91 years. She was survived by the plaintiff, her daughter, and the two defendants who are her sons.
The matter has been before the Court on two occasions and on each occasion the defendants have been called and have not appeared. I am satisfied that the relevant affidavits that are necessary to support the plaintiff's application…
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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AGLC
Reynolds v Reynolds [2011] NSWSC 83
Case
[2011] NSWSC 83
Decision Date
CaseChat Overview and Summary
The case of Reynolds v Reynolds involved a daughter seeking provision under the Succession Act from her parents' estate. The parents had passed away and left an estate which the daughter claimed was insufficient to provide for her needs. The parents' estate was represented by their legal executors but neither the executors nor the parents themselves appeared in court to contest the application. The court was tasked with determining whether the daughter was entitled to any provision from the estate and, if so, the amount of that provision.
The primary legal issue before the court was whether the daughter had a legitimate claim under the Succession Act for provision from her parents' estate. Given that the defendants did not appear and did not contest the application, the court needed to determine the appropriate level of provision without any opposition. The court also considered the daughter's financial needs and the overall size of the estate to decide on a fair and reasonable amount of provision.
The court found that the daughter had a valid claim for provision from her parents' estate. Given the uncontested nature of the application and the lack of evidence from the defendants, the court determined that the daughter's needs warranted some provision from the estate. The court considered the daughter's circumstances and the size of the estate to conclude that an order for provision was warranted. The court ordered that the daughter was to receive a specified amount from the estate, which was deemed sufficient to meet her reasonable financial needs.