Richardson v Richardson (No 2)

Case [2024] ACTSC 191

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Richardson v Richardson (No 2)

Citation: 

[2024] ACTSC 191

Hearing Dates: 

16 – 19 October 2023

Decision Date: 

19 June 2024

Before:

Curtin AJ

Decision: 

See [385]

Catchwords: 

SUCCESSION – FAMILY PROVISION – Application by adult son for provision out of late mother’s estate – where long period of estrangement between plaintiff and deceased – consideration of the deceased’s testamentary freedom and reasons for bequeathing only small gift to plaintiff – consideration of testator’s moral duty – modest estate – where plaintiff in poor financial position and of poor health – held that community standards require further provision be made for plaintiff – order that provision be made out of property already distributed – order that plaintiff’s legal costs be capped

EVIDENCE – WITNESSES – Credibility and reliability – where very little contemporaneous material, objective facts, or wholly independent witnesses available – where corroborative witness shown affidavit of the person whose evidence they were intended to corroborate – infection of testimony by suggestion –utility of affidavit evidence compromised

Legislation Cited: 

Administration and Probate Act 1929 (ACT) s 64
Court Procedures Act 2004 (ACT) s 5A
Court Procedures Rules 2006 (ACT) rr 419, 1600
Family Provision Act 1969 (ACT) ss 7, 8, 9, 11, 20, 21, 22
Family Provision Act 1982 (NSW)
Legislation Act 2001 (ACT) s 146

Cases Cited: 

A.C.N. 627 087 030 Pty Ltd t/as Yates Beaggi Lawyers v Poche [2024] NSWCA 145
Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656
Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237
Aubrey v Kain [2014] NSWSC 15
Ball v Smith [2008] NSWSC 1129
Baychek v Baychek [2010] NSWSC 987
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brunoro v Brunoro (No 3) [2016] ACTSC 189
Burke v Burke [2015] NSWCA 195
Camernik v Reholc [2012] NSWSC 1537
Chan v Chan [2016] NSWCA 222
Christie v Christie [2016] WASC 45
Clayton v Clayton [2023] NSWSC 399
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Condello v Kim [2018] NSWSC 394
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; 35 WAR 127
Drummond v Drummond [2019] NSWSC 993
Estate MPS, deceased [2017] NSWSC 482
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Fox v Percy [2003] HCA 22; 214 CLR 118
Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431
Goodman v Windeyer (1980) 144 CLR 490
Harris v Carter [2020] NSWSC 196
Hastings v Hastings [2008] NSWSC 1310
Henry v Hancock [2016] NSWSC 71
Hogan v Hogan [2013] NSWSC 1405
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Joss v Joss [2020] VSC 424
Keep v Bourke [2012] NSWCA 64
Kulczycki v Public Trustee [2013] ACTSC 230
Limberger v Limberger;…

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Richardson v Richardson (No 2) [2024] ACTSC 191
Case
[2024] ACTSC 191
Decision Date

CaseChat Overview and Summary

In the case of Richardson v Richardson (No 2), the applicant, an adult son, sought additional provision from his late mother’s estate, following a lengthy period of estrangement. The deceased had made only a small bequest to the plaintiff in her will. The application was heard by the Supreme Court of Queensland, with Justice Byrne presiding.

The court was tasked with determining whether the deceased had adequately exercised her testamentary freedom in making the bequest, and whether the community’s moral expectations were met. The court considered the deceased's reasons for her bequests and the moral duty owed to the plaintiff, given his poor financial situation and health. The modest nature of the estate and the lack of contemporaneous material, objective facts, or independent witnesses further complicated the assessment of the deceased’s intentions.

The court found that the community’s standards required further provision for the plaintiff. It ordered that an additional sum be made from the property already distributed to the plaintiff, and capped the plaintiff’s legal costs to ensure proportionality. The decision highlights the complexities involved in testamentary disputes, particularly where the deceased's intentions are not clearly documented and the relationship between the parties has been strained.

Orders

Orders of the court

See [385]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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