Ryan v NSW Trustee and Guardian - [2011] NSWSC 319

Supreme Court

New South Wales

Medium Neutral Citation: Ryan v NSW Trustee & Guardian [2011] NSWSC 319
Hearing dates: Friday 1 April 2011
Decision date: 18 April 2011
Before: Associate Justice Macready
Decision:
See paragraph 49.

Catchwords: WILLS AND ESTATES - family provision claim by three of the deceased's 10 children for further provision out of the deceased's very small estate. Order for further provision made.
Legislation Cited: Family Provision Act 1982
Cases Cited: Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Category: Principal judgment
Parties: Travis Alexander Ryan & Ors v NSW Trustee & Guardian
Representation: Counsel:
Mr B Townsend for plaintiff
Ms V Hartstein and Mr S Feredoes for deft.
Solicitors:
Tieli Blazland Lawyers for plaintiff
NSW Trustee & Guardian

File Number(s): 2009/00287381

Judgment

This is an application under the Family Provision Act 1982 in respect of the estate of the late Edwin Lawrence Ryan who died intestate on 12 August 2007 aged 61 years. The deceased was survived by a former wife, three defacto partners and at least 10 children.

The three plaintiffs are the deceased's three youngest children, Travis aged 13, Caitlin aged 11 and Russell aged 10 years. The plaintiffs' mother Kim Maria Skinner, who is their tutor in the proceedings and the most recent of the deceased's defacto partners, brings the claim .

Entitlement

Since the deceased died intestate and having regard to the various people who have survived the deceased, the estate will pass equally to his children. There are at least 10 children as there is the suggestion by the plaintiffs' tutor, Kim Skinner, that there was another child named Anthony Dootson. The tutor gave Anthony's address to the defendant who obtained a grant of letters of administration in the estate. After giving notice to Anthony, there was no response and there is no information available from the defendant to prove that in fact he was a child of the deceased.

The deceased's former wife is Rita Santos. Various searches have been made under her name and other names she may have used and I am satisfied that it is not practicable to give notice to her.

The estate

The deceased's property has been sold and the amount held by the trustee is $176,240.57. Further legal costs are anticipated and there is tax payable, which will reduce this figure to $149,138.07.

There is also a claim by a firm of solicitors, McNamara James and O'Connor, who acted initially for some of the members of the family. The solicitor's claim has been reduced to $11,940.40 as the work did not result in a grant of administration. However, the work was useful in establishing the family history. The trustee proposes to pay this amount in satisfaction of the claim.

The plaintiffs' costs on a party and party basis are estimated at $29,887 and if these costs are allowed the amount available for the beneficiaries will be reduced to $107,310.67.

History

The deceased was born on…

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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Details

Case: [2011] NSWSC 319
Decision Date: 18 April 2011

CaseChat Overview and Summary

The case of Ryan v NSW Trustee and Guardian involved three of the deceased's children seeking further provision from their father's estate. The deceased, Mr Ryan, passed away leaving behind a very small estate and ten children. The children who initiated the proceedings argued that the provisions made under the will were inadequate and sought further financial support. They filed their claims under the Family Provision Act 1982 (NSW). The case was heard and determined by the Supreme Court of New South Wales.

The central legal issues before the court were whether the provisions made in the will were just and equitable under the Family Provision Act, and if the children's claims for additional financial support were substantiated. The court had to consider the deceased's intentions, the financial circumstances of the children, and whether the estate was sufficiently distributed to meet the reasonable financial needs of the family members. Additionally, the court needed to balance the rights of the testator with the rights of the family members under the Act.

In delivering the judgment, the court emphasised the importance of ensuring that family members are provided for in a fair and reasonable manner, in accordance with the principles established under the Family Provision Act. The court found that the provisions made in the will were inadequate to meet the reasonable financial needs of the children, particularly given the modest size of the estate. The court concluded that it was just and equitable to make an order for further provision to the children. The court acknowledged the deceased's right to dispose of his estate but also recognised the need to protect the family members from hardship.

The final orders included the direction that the estate administrator make a payment to each of the three children to adequately provide for their reasonable financial needs. The specific amounts were determined based on individual circumstances and the court's assessment of what constituted just and equitable provision under the Act. This decision highlights the court's role in balancing the testator's wishes with the statutory rights of family members to be provided for.

Orders