Supreme Court
New South Wales
Medium Neutral Citation: Shelley v Prager [2020] NSWSC 1393 Hearing dates: 20, 21 and 22 May 2020 Date of orders: 12 October 2020 Decision date: 12 October 2020 Jurisdiction: Equity - Family Provision List Before: Williams J Decision: The plaintiff’s application for provision out of the estate of the late William Andrew Watson is dismissed.
Catchwords: SUCCESSION – family provision – claim by adult child for provision out of the deceased’s estate – claimant is one of four adult daughters of deceased – beneficiaries under deceased’s will are other three adult daughters, adult grandson and deceased’s wife – beneficiaries had close relationship with deceased despite difficult and sometimes abusive conduct of deceased – lack of close relationship and lengthy estrangement between deceased and claimant – modest estate – no property designated as notional estate – net assets of claimant and husband greater than estate and significantly greater than the three beneficiaries who put their financial circumstances in issue – not satisfied that adequate provision not made for claimant – summons dismissed
Legislation Cited: Succession Act 2006 (NSW), ss 57, 58, 59, 60, 61, 74, 78, 80, 81, 82, 83, 87, 88, 89, 90
Cases Cited: Blendell v Blendell [2020] NSWCA 154
Blendell v Byrne [2019] NSWSC 583Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Foley v Ellis [2008] NSWCA 288
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Hampson v Hampson [2010] NSWCA 359
Harris v Carter [2020] NSWSC 196
Keaton v Gumulak [2020] NSWSC 943
Megerditchian v Khatchadourian [2020] NSWCA 229
Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278
Page v Hull-Moody [2020] NSWSC 411
Sgro v Thompson [2017] NSWCA 326
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Category: Principal judgment Parties: Dianne Elizabeth Shelly (Plaintiff)
Susan Elizabeth Prager (First Defendant)
Michelle Leah Warren (Second Defendant)Representation: Counsel:
Solicitors:
Ms M Tibbey (Plaintiff)
Ms D Reid (Defendants)
Brazel Moore Lawyers (Plaintiff)
File Number(s): 2019/121925 Publication restriction: N/A
Judgment
INTRODUCTION
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William Andrew Watson (known as “Bill”) died on 12 May 2018, aged 90 years. He was survived by his wife Elizabeth Drummond Watson (known as “Betty”) and four of his daughters.
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Mrs Watson is aged 89 years. She suffers from dementia and resides in a nursing home.
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The four surviving daughters of the deceased and Mrs Watson are:
Dianne Elizabeth Shelley (aged 70 years), who is the plaintiff in this proceeding;
Susan Elizabeth Prager (aged 67 years);
Yvette Amy Bouzerouata (aged 53 years); and
Michelle Leah Warren (aged 46 years).
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The deceased and Mrs Watson had another daughter, Deneice Julie Watson, who died on 28 July 2002 aged 46 years. Deneice Watson was survived…
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- AGLC
- Shelley v Prager [2020] NSWSC 1393
- Case
- [2020] NSWSC 1393
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant had demonstrated that the deceased had not made adequate provision for her under the Family Provision Act 1982 (NSW). The court was required to consider the nature and extent of the applicant’s relationship with the deceased, the deceased’s conduct towards her, the financial circumstances of the applicant and the respondent beneficiaries, and the size of the estate. The court had to determine whether Shelley had shown that she was not adequately provided for by her father’s estate.
The court found that while Shelley and her father had once shared a close relationship, the lengthy estrangement and lack of any meaningful contact meant that the court could not conclude that her father had not made adequate provision for her. The court observed that Shelley’s financial circumstances, which were significantly better than those of the respondent beneficiaries, did not support her claim that she was not adequately provided for. The court was not satisfied that the deceased had not made adequate provision for Shelley. The applicant’s summons was therefore dismissed.
The final orders of the court included costs in favour of the respondents. The court emphasised that the Family Provision Act 1982 (NSW) was intended to provide a safety net for those who had been unable to provide for themselves through the deceased’s lifetime, and that Shelley had not demonstrated that she was in need of such 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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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