Beazley P at [1]; McColl JA at [180]; Gleeson JA at [181]
Decision:
1. Appeal allowed;
2. Set aside the orders made in the court below;
3. Order that in addition to the provision made for the first respondent Kerryn Therese Osmond under the will of the late Maurice Augustine Salmon (the deceased), Kerryn Therese Osmond receive a legacy out of the estate of the deceased in the sum of $50,000;
4. Order that no interest is payable on the legacy in favour of Kerryn Therese Osmond if paid within 90 days of the date of this order. Otherwise interest is payable on the said legacy or so much as remains unpaid from time to time at the rate prescribed by the Probate and Administration Act 1898 (NSW) on unpaid legacies calculated on the last day of each month thereafter until the legacy has been fully paid;
5. Order that the second respondent, Donna Maree Peters, pay the respondents’ costs of proceedings in the court below on an indemnity basis as and from 9 January 2013;
6. Make no order as to the costs of the first respondent Kerryn Therese Osmond in respect of the proceedings in the court below, with the intent that she bear her own costs of those proceedings;
7. Order that the respondents pay the appellants’ costs of the appeal and that those costs are to be borne by the first respondent Kerryn Therese Osmond as to 90 per cent and the second respondent Donna Maree Peters as to 10 per cent. The respondents are to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.
Catchwords:
SUCCESSION – family provision – provision for adult children – appeal against orders made under the Succession Act 2006, s 59
SUCCESSION – family provision – whether regard can be had to reasoning or motives behind testator’s bequests
SUCCESSION – family provision – whether regard must be had to the claims of other beneficiaries in determining whether provision was inadequate – whether regard must be had to the claims of other beneficiaries in determining quantum of additional provision
SUCCESSION – family provision – whether proper provision to an adult child extends to provision of own home
SUCCESSION – appeal against findings of fact – effect of breaking up estate assets – farming business conducted as integrated operation over several properties
EVIDENCE – admissibility of additional evidence on appeal – where evidence could have been led at trial – where additional evidence explained evidence given at trial – where updating evidence is available
COSTS – Uniform Civil Procedure Rules 2005, r 42.15A – what constitutes an offer of compromise – where compromise is only as to costs
COSTS – costs at first instance – discretion under Succession Act 2006, s 99 – additional costs considerations for family…
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
AGLC
Salmon v Osmond [2015] NSWCA 42
Case
[2015] NSWCA 42
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from orders made under section 59 of the Succession Act 2006 (NSW) regarding provision for an adult child from the estate of the deceased, Maurice Augustine Salmon. The primary dispute revolved around whether the provision made for the first respondent, Kerryn Therese Osmond, under the deceased's will was adequate, and if not, what further provision should be made. The appeal was heard by Beazley P, McColl and Gleeson JJA of the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several key legal issues. These included whether regard could be had to the reasoning or motives behind the testator's bequests when assessing the adequacy of provision, and whether the claims of other beneficiaries must be considered when determining both the inadequacy of provision and the quantum of any additional provision. Furthermore, the court had to consider whether proper provision for an adult child could extend to the provision of their own home, and the effect of breaking up estate assets, particularly a farming business conducted as an integrated operation over several properties. The admissibility of additional evidence on appeal, where such evidence could have been led at trial but explained existing evidence or was updating in nature, was also a consideration.
The Court of Appeal allowed the appeal, setting aside the orders made by the court below. Their Honours reasoned that while the testator's intentions were relevant, they were not determinative in family provision claims, and the court's primary focus was on the applicant's need for adequate provision. The court found that the provision made for Kerryn Therese Osmond was inadequate, particularly in light of her circumstances and the overall size of the estate. The court applied principles of family provision law, considering the need for adequate maintenance, support, education, and advancement in life, and the specific circumstances of the applicant as an adult child. The court also considered the impact of the farming business being an integrated operation.
Consequently, the Court of Appeal ordered that Kerryn Therese Osmond receive an additional legacy of $50,000 from the estate, with specific provisions regarding interest. The court also made orders concerning the costs of the proceedings at first instance and on appeal, applying section 99 of the Succession Act 2006 and Rule 42.15A of the Uniform Civil Procedure Rules 2005, and considering the "overall justice of the case" and the partial success of the plaintiff. The appellants were substantially successful on appeal, leading to orders for the respondents to pay the appellants' costs of the appeal.
Orders
Orders of the court
1. Appeal allowed;
2. Set aside the orders made in the court below;
3. Order that in addition to the provision made for the first respondent Kerryn Therese Osmond under the will of the late Maurice Augustine Salmon (the deceased), Kerryn Therese Osmond receive a legacy out of the estate of the deceased in the sum of $50,000;
4. Order that no interest is payable on the legacy in favour of Kerryn Therese Osmond if paid within 90 days of the date of this order. Otherwise interest is payable on the said legacy or so much as remains unpaid from time to time at the rate prescribed by the Probate and Administration Act 1898 (NSW) on unpaid legacies calculated on the last day of each month thereafter until the legacy has been fully paid;
5. Order that the second respondent, Donna Maree Peters, pay the respondents’ costs of proceedings in the court below on an indemnity basis as and from 9 January 2013;
6. Make no order as to the costs of the first respondent Kerryn Therese Osmond in respect of the proceedings in the court below, with the intent that she bear her own costs of those proceedings;
7. Order that the respondents pay the appellants’ costs of the appeal and that those costs are to be borne by the first respondent Kerryn Therese Osmond as to 90 per cent and the second respondent Donna Maree Peters as to 10 per cent. The respondents are to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.