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Shelley v Prager

Shelley v Prager

Case [2020] NSWSC 1393 12 October 2020

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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:
Amos v Hogg [2018] NSWSC 1226
Blendell v Blendell [2020] NSWCA 154
Blendell v Byrne [2019] NSWSC 583
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chan v Chan [2016] NSWCA 222
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
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Category: Principal judgment
Parties: Dianne Elizabeth Shelly (Plaintiff)
Susan Elizabeth Prager (First Defendant)
Michelle Leah Warren (Second Defendant)
Representation:
Counsel:
Ms M Tibbey (Plaintiff)
Ms D Reid (Defendants)
Solicitors:
Brazel Moore Lawyers (Plaintiff)

File Number(s): 2019/121925
Publication restriction: N/A

Judgment

INTRODUCTION

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.
Mrs Watson is aged 89 years. She suffers from dementia and resides in a nursing home.
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).

The deceased and Mrs Watson had another daughter, Deneice Julie Watson, who died on 28 July 2002 aged 46 years. Deneice Watson was survived…

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 Shelley v Prager

Details

AGLC: Shelley v Prager [2020] NSWSC 1393
Case: [2020] NSWSC 1393
Decision Date: 12 October 2020

CaseChat Overview and Summary

The applicant, Shelley, sought to have provision made for her out of the estate of her late father, Prager, under the Family Provision Act 1982 (NSW). Prager’s estate was left to his wife and three other daughters, with no provision for Shelley, who had been estranged from her father for many years. The respondent beneficiaries were Prager’s wife and three other daughters. The dispute arose from Shelley’s contention that her father had not made adequate provision for her under his will, despite her having a close familial relationship with him prior to her estrangement. The case was heard and determined by the Supreme Court of New South Wales.

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