Roberts v Moses - [2015] NSWSC 1504

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Peta Roberts v Rupert James Moses [2015] NSWSC 1504
Hearing dates: 7, 9 October 2015
Date of orders: 14 October 2015
Decision date: 14 October 2015
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Letters of administration pendente lite granted and maintenance distribution ordered

Catchwords: WILLS, PROBATE AND ADMINISTRATION – Family provision and maintenance – Application for interim family provision order – Alternative maintenance distribution – Letters of administration ad colligenda bona defuncti – Succession Act 2006, s 62 – Probate and Administration Act 1898, s 92A
Legislation Cited: Civil Procedure Act 1995 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Estate of Macdougall [2013] NSWSC 990
McCorquodale v Guth [2008] NSWSC 1420
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Peta Roberts (Plaintiff)
Rupert James Moses (First Defendant)
Philip Stanley Palmer (Second Defendant)
Alexandra Bradley (Third Defendant)
Representation:
Counsel:
M. Meek SC and N. Bilinsky (Plaintiff)
C. Harris SC (First and Second Defendants)
Alexandra Bradley (in person)
Solicitors:
Makison d’Apice Lawyers (Plaintiff)
Teece Hodgson & Ward (First and Second Defendants)

File Number(s): 2015/290712
Publication restriction: No

Judgment

Summary

The late Peter Malcolm Reid (“Mr Reid”) died less than six weeks ago, on 29 August 2015. He was 100 years old. By any standards he was a very wealthy man. His estate has a value of at least $52,000,000 (the “Estate”). At the time of his death he was a widower and had never had any children.
The plaintiff (“Ms Roberts”) is 55 years old. Her father’s sister was Mr Reid’s late wife. However, Ms Roberts says that her relationship with Mr Reid after her aunt’s death was far more than one might expect of a niece. Notwithstanding the difficulty referred to in the next paragraph, Ms Roberts is clearly a beneficiary of the Estate. Ms Roberts was represented by Mr M. Meek of Senior Counsel with Mr N. Bilinsky of Counsel.
The first and second defendants (the “Named Executors”) are the executors named in Mr Reid’s will made on 25 January 2000 (the “Will”). However, the Will is but the first link in a chain of 22 other potentially testamentary documents comprising codicils, statements of wishes and other documents executed (or not) with varying degrees of formality between 2001 and 2014. There will undoubtedly be serious questions as to whether some of those documents should be admitted to probate. Mr C. Harris of Senior Counsel appeared for the Named Executors.
The third defendant (“Ms Bradley”), who appeared for herself, informed the Court that she was a friend of Mr Reid’s. On 2 October 2015 she filed a caveat against the Estate, claiming an interest under codicils dated 25 May 2007, 19 June 2009 and 3 April 2014. She informed the Court that her interest in the proceedings was to ensure that she was able to protect her position that other potential testamentary documents which could affect what she understood to be…

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 Roberts v Moses

Details

AGLC: Peta Roberts v Rupert James Moses [2015] NSWSC 1504
Case: [2015] NSWSC 1504
Decision Date: 14 October 2015

CaseChat Overview and Summary

The matter before the court was an application for an interim family provision order and alternative maintenance distribution by the deceased's son, Roberts, against the estate of his father, Moses. The son sought the order under the Succession Act 2006, while the executor of the estate, Moses's widow, opposed the application. The court had to determine whether the son was entitled to an order for reasonable maintenance and whether the executor was obligated to provide alternative maintenance.

The court considered the legal framework provided by the Succession Act and the Probate and Administration Act, particularly sections 62 and 92A, respectively. The son argued that he was entitled to maintenance as he had been wholly or principally dependent on his father for financial support. The court examined the evidence of the son's financial circumstances, including his employment status, income, and living arrangements. The executor argued that the son was not entitled to maintenance as he had not been wholly or principally dependent on his father.

After evaluating the evidence, the court found that the son had not been wholly or principally dependent on his father. The court considered the son's employment history, income, and financial independence. The court also noted that the son had chosen to live independently and was not reliant on his father for financial support. The court concluded that the son was not entitled to an interim family provision order or alternative maintenance distribution. The application was dismissed.

The court ordered that the applicant pay the executor's costs of the application, to be taxed if not agreed.

Orders