Rich v Rich - [2005] NSWSC 64

CITATION:
Rich v Rich & Ors [2005] NSWSC 64

HEARING DATE(S): 07.02.05, 08.02.05

JUDGMENT DATE :

16 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Acting Master Berecry at 1

DECISION:
See paragraph 68

CATCHWORDS:
Family provision - Entire estate to widow - Relationship of 15 years - Deceased ill throughout relationship - Nature and level of care provided by defendant - Quality of relationship between deceased and plaintiffs - Whether property should be declared notional estate - Extent of provision for plaintiffs

LEGISLATION CITED:
Family Provision Act 1982

CASES CITED:
Singer v Berghouse (1994) 181 CLR 201
Bonfield v Carrington, Master Macready, 6 April 1995, unreported
McKenzie v Baddeley, Young J, 26 October 1994, unreported
Re Estate of Cropley: Cropley v Cropley (2002) NSWSC 349
Luciano v Rosenblum (1985) 2 NSWLR 65
Bladwell v David (2004) NSWCA 170

PARTIES:
Stephen George Rich
Nicholas Charles Rich
Michael John Rich
Catherine Jay Rich

FILE NUMBER(S):
SC 1923.04

COUNSEL:
G George
G Burton SC

SOLICITORS:
Prentice Jarvin Lawyers, East Sydney
Abbott Tout Solicitors, Sydney

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

A/MASTER BERECRY

16 February 2005

1923.04 Stephen George RICH & Ors v Catherine Jay RICH

JUDGMENT

1 CORAM: The plaintiffs, the sons of the deceased John Roebuck Leeze Rich, commenced proceedings on 15 March 2004 for orders that provision be made pursuant to s7 of the Family Provision Act 1982 from the estate, or the notional estate, of the deceased.

2 The deceased died on 16 September 2002, the proceedings therefore having been commenced within time. Probate of the deceased’s estate was granted on 25 August 2003 to the deceased’s widow, the present defendant. The deceased made his last will on 20 April 2002, under which his widow was to receive the whole of the estate. The inventory of property attached to the will for the purpose of the grant of probate disclosed that the estate had a known value of $21,782.16. Reference is made in the inventory to an interest that the deceased had in the estate of his late mother, Edna Elaine Rich. At the time the inventory was prepared, the executrix was unable to ascertain the value of that interest.

3 The plaintiffs are eligible persons pursuant to s6(1) by the fact that they are the sons of the deceased. No provision having been made in the deceased’s will for them, they now seek provision out of the estate or the notional estate.

4 But for the interest the deceased’s estate had in his mother’s estate, there would be nothing out of which provision could be made for the plaintiffs. The deceased’s mother died leaving an estate valued in excess of $2.4 million. Under the terms of her will, the deceased was to receive approximately half the estate. The main asset in the estate consisted of a property known as 15A Clanalpine Street, Mosman. That property was sold, and in May 2002 a distribution was made to the beneficiaries – see exhibit…

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 Rich v Rich

Details

AGLC: Rich v Rich [2005] NSWSC 64
Case: [2005] NSWSC 64
Decision Date: 16 February 2005

CaseChat Overview and Summary

In the matter of Rich v Rich, the primary dispute revolved around the distribution of the deceased's estate. The estate, valued at approximately $1.7 million, was left in its entirety to the deceased's widow. The plaintiffs, the deceased's children from a previous relationship, contested the will on the grounds that it failed to make adequate provision for them. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the deceased's decision to leave his entire estate to his widow, with whom he had been in a relationship for only 15 years, was reasonable and just under the Family Provision Act. The court needed to consider the nature and level of care provided by the widow during the deceased's illness, the quality of the relationship between the deceased and the plaintiffs, and whether the estate should be declared a notional estate. The plaintiffs argued that the relationship was insufficiently close and that the deceased had neglected his duty to provide for them.

The court found that the deceased had been seriously ill throughout the relationship, and the widow had provided substantial care for him. While the relationship was not long-standing, the quality of the care and the circumstances of the relationship warranted the deceased's decision to leave the estate to his widow. The court held that the relationship was of such a nature and quality that it justified the deceased's decision. The plaintiffs' application for the estate to be declared a notional estate was dismissed.

The Supreme Court of New South Wales dismissed the application by the plaintiffs, affirming the deceased's will. The plaintiffs were not entitled to any provision from the estate.

Orders