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Sergent v Glass (No 2)

Sergent v Glass (No 2)

Case [2018] NSWSC 1100 18 July 2018

Family Provision

Administrator ad Litem

Intestate Succession

Electronic Service of Documents

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Sergent v Glass (No 2) [2018] NSWSC 1100
Hearing dates: In Chambers
Date of orders: 18 July 2018
Decision date: 18 July 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph 107

Catchwords: SUCCESSION — FAMILY PROVISION — Application by two children of deceased, one of whom is a minor – Deceased died intestate – Estate small – The whole estate passes to his widow – Short marriage – Separation for several years before death when widow moves overseas – Appointment of solicitor as administrator ad litem – Widow unable to be located – Orders made for service of documents by electronic means – No response to numerous emails and Facebook messages and otherwise non-responsive to communications – Agreement in principle reached between parties after judicial settlement conference – Widow sent information regarding proposed settlement – Whether orders in favour of each child with effect that whole estate passes to them and not to the widow should be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286
Affoo v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309
Bartlett v Coomber [2008] NSWCA 100
Collins v McGain [2003] NSWCA 190
Darwalla Milling Co Pty Ltd v F Hoffman La Roche Ltd (No 2) (2006) 236 ALR 322; [2006] FCA 1388
Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Grey v Harrison [1997] 2 VR 359
Hore v Perpetual Trustee Co Ltd (Supreme Court (NSW), Windeyer J, 8 June 1995, unrep)
In the Estate of Bridges (1975) 12 SASR 1
In the Estate of the late Marras [2014] NSWSC 915
Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298
Kossert v Ruggi As Executor of the Will of Korps (No 2) [2012] WASC 191
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McGrath v Troy [2010] NSWSC 1470
Schaechtele v Schaechtele [2008] WASC 148
Sergent v Glass [2017] NSWSC 1446
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Texts Cited: NSW Law Reform Commission, Report 116 Uniform Succession Laws: Intestacy, (April 2007)
Category: Principal judgment
Parties: Thomas Declan Sergent (first Plaintiff)
William James Sergent by his tutor Clive Raymond Sergent (second Plaintiff)
Jeremy Neil Glass (Defendant)
Representation:
Counsel:
Ms T Catanzariti (Plaintiffs)
Dr S Chapple (Defendant)
Solicitors:
Grogan & Webb Solicitors (Plaintiffs)
Glass Goodwin (Defendant)

File Number(s): 2017/194970

Judgment

Introduction

HIS HONOUR: These are somewhat unusual proceedings for an order that provision be made for the maintenance, education and advancement in life of Thomas…

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 Sergent v Glass (No 2)

Details

AGLC: Sergent v Glass (No 2) [2018] NSWSC 1100
Case: [2018] NSWSC 1100
Decision Date: 18 July 2018

CaseChat Overview and Summary

In the case of Sergent v Glass (No 2), the two children of the deceased, who had died intestate, sought to challenge the entitlement of their stepmother to the entirety of the estate. The deceased had been married to the stepmother for a brief period, during which they were separated for several years prior to the deceased’s death. The stepmother had relocated overseas and could not be located. The court appointed a solicitor as administrator ad litem for the widow and made orders for service of documents by electronic means. Despite numerous attempts to communicate with the widow, she did not respond to emails or Facebook messages and was otherwise non-responsive.

The primary legal issue was whether orders should be made in favour of the two children, effectively transferring the entire estate to them rather than to the widow. The court had to consider the Family Provision Act and the circumstances of the marriage, separation, and death of the deceased. The court also had to assess the implications of the widow’s non-responsiveness and the agreement in principle reached between the parties during the judicial settlement conference.

The court found that the marriage was of short duration and that the deceased and the widow had been separated for a significant period before his death. The court considered the stepmother’s non-responsiveness to be an implicit acknowledgment that she had no interest in the estate. Given the agreement in principle reached by the parties and the circumstances of the marriage and separation, the court concluded that the estate should be divided between the two children. The court made orders transferring the entire estate to the children, effectively disinheriting the widow.

Orders