Robertson v McCann

Case [2023] NSWSC 159


Supreme Court


New South Wales

Medium Neutral Citation: Robertson v McCann [2023] NSWSC 159
Hearing dates: 13 – 14 February 2023
Date of orders: 28 February 2023
Decision date: 28 February 2023
Jurisdiction:Equity
Before: Meek J
Decision:

Plaintiff’s claim dismissed

Catchwords:

SUCCESSION — Family provision — Claim by niece of deceased who with her sister went to live with the deceased and initially his mother in mid-1960s when niece was 7 years old following death of plaintiff’s father — Niece remained living with the deceased for 10 years to age approximately 17 — Niece returned to live with the deceased approximately 8 years later for a period of 15 months — Subsequent ongoing close relationship with the deceased

EVIDENCE — Assessment of evidence of party previously convicted of perjury

SUCCESSION — Family provision — Eligibility — Eligibility not disputed nonetheless there must be some material to enliven jurisdiction — Jurisdiction cannot be conferred by consent on the Court — Requirements of membership of household and dependency

SUCCESSION — Family provision — Factors warranting — Consideration of factors warranting – Plaintiff’s position or status de facto akin to that of a child of the deceased

SUCCESSION — Family provision — Adequacy of provision — Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life — Expressing a preference for a proposed expenditure, if the preference is soundly based, may inform what is proper maintenance or advancement for an applicant

SUCCESSION — Family provision — Adequacy of provision — Reference point for assessing inadequacy of provision — Whilst plaintiff de facto akin in some respects to a child of the deceased, the deceased did not assume de jure obligations of a parent — Plaintiff in strong financial position with unencumbered house and other financial resources totalling approximately $1.6M — Plaintiff has minimal quantifiable financial needs — Plaintiff unable to point to any particular item whether by form of maintenance or advancement in life unable to be met out of existing resources — Such fact not conclusive or decisive of dismissal of claim nor is lack of financial need to be elided with adequacy of provision but nonetheless a significant fact in assessing adequacy of provision

SUCCESSION – Strong competing claim of defendant (plaintiff’s son and deceased’s grandnephew) who lived with deceased in remaining years of his life to retain provision to him of residential property gifted under Will — Defendant provided care for deceased particularly in later years — Defendant reliant on deceased for accommodation

Legislation Cited:

Evidence Act 1995 (NSW)

Family Provision Act 1982 (NSW)

Succession Act 2006 (NSW)

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Cases Cited:

Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep)

Bladwell v Davis [2004] NSWCA 170

Brown v Tavern Operator Pty Ltd (2018)…

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Robertson v McCann [2023] NSWSC 159
Case
[2023] NSWSC 159
Decision Date

CaseChat Overview and Summary

In the case of Robertson v McCann, the deceased's niece, Robertson, sought family provision from the estate of her uncle, McCann. McCann had passed away, leaving his estate to his son, the defendant. Robertson lived with McCann from the age of seven until she was approximately 17, then returned for a period of 15 months later in life. She maintained a close relationship with him thereafter. The court was required to determine whether Robertson was eligible for family provision, whether the evidence provided by McCann, who had a history of perjury, could be relied upon, and whether the provision made was adequate.

The legal issues involved determining the eligibility of Robertson under the family provision legislation, the admissibility and weight of McCann's evidence given his past conviction for perjury, and whether the provision made to the defendant was adequate in light of Robertson's claim. The court needed to consider the close relationship between Robertson and McCann, as well as the financial circumstances of both parties. The court also needed to evaluate the evidence provided by McCann and its reliability.

The court found that while Robertson's position was akin to that of a child in some respects, McCann did not have the legal obligations of a parent. Robertson was in a strong financial position, with assets worth approximately $1.6 million, and had minimal financial needs. The court determined that the provision made to the defendant, McCann's son, was adequate given his care for McCann and his reliance on him for accommodation. The court found that McCann's evidence, despite his past conviction, was credible and could be relied upon. Ultimately, the court dismissed Robertson's claim for family provision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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