Sherwood v Public Trustee - [2007] NSWSC 1365

CITATION: Sherwood v Public Trustee [2007] NSWSC 1365

HEARING DATE(S): 28 June 2007 (written submissions to 3 July 2007)

JUDGMENT DATE :
29 November 2007

JUDGMENT OF: Associate Justice McLaughlin

DECISION: 1. I order that the summons be dismissed. 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. 3. I order that the Defendant be entitled to retain out of the estate of the late Beatrice Mary Ann Hunt (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the amount of the foregoing costs which he may recover from the Plaintiff. 4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - Family Provision. Claim by adult granddaughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Proceedings instituted almost14 years out of time. Application for extension of time. Whether estate has been fully distributed. Factors warranting the making of the application. Competing claims of other beneficiaries.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Easterbrook v Young (1977) 136 CLR 308
Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES: Mary- Ann Ava Sherwood (Plaintiff)
Public Trustee (Defendant)

FILE NUMBER(S): SC 1319 of 2006

COUNSEL: Ms M. Bridger (Plaintiff)
Mr A. Hill (Defendant)

SOLICITORS: Bilbie Dan (Plaintiff)
Mr A. Lentini, Solicitor for the Public Trustee (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 29 November 2007

1319 of 2006 MARY-ANN AVA SHERWOOD –v- PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 7 February 2006 Mary-Ann Ava Sherwood claims substantively an order for provision for her maintenance and advancement in life out of the estate of her late grandmother Beatrice Mary Ann Hunt (to whom I shall refer as “the Deceased”).

3 The Deceased died on 10 August 1989, aged about 91. She left a will dated 3 July 1987. Probate of that will was on 29 March 1990 granted to her son Alfred James Thomas Whitlock, the executor named therein. Upon the death of that executor on 27 July 1995 without completing his executorial duties, administration with the will annexed of the unadministered estate of the Deceased was on 28 May 1998 granted to the Public Trustee (who is the Defendant to the present proceedings).

4 The Plaintiff is the granddaughter of the Deceased, being the daughter of the Deceased’s son Alfred James Thomas Whitlock. The Deceased, who was a widow at the time of her death (her second husband, Roy Ernest Hunt having predeceased her), was survived by her three children, Beatrice Emma Rose (Mrs Klinker), Alfred James Thomas and James Thomas.

5 The inventory of property discloses the following assets (together with the respective values attributed thereto at the time…

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 Sherwood v Public Trustee

Details

AGLC: Sherwood v Public Trustee [2007] NSWSC 1365
Case: [2007] NSWSC 1365
Decision Date: 29 November 2007

CaseChat Overview and Summary

Sherwood v Public Trustee is a case concerning a claim for family provision by an adult granddaughter against the estate of her deceased grandfather. The plaintiff, Sherwood, sought a larger share of the estate, contending that she had not been provided with adequate provision for her proper maintenance. The defendant, the Public Trustee, resisted the claim on the grounds that the proceedings were instituted almost fourteen years after the estate was distributed and that the court should not extend the statutory time limit for such claims. The case was heard by the Supreme Court of New South Wales.

The court was required to determine several legal issues. Firstly, it had to consider whether the plaintiff had been left without adequate provision for her proper maintenance. This involved an assessment of her financial and material circumstances at the time of the proceedings. Secondly, the court had to decide whether it should grant an extension of the statutory time limit for instituting family provision claims, given that the proceedings were brought almost fourteen years after the estate was distributed. The court also had to weigh factors such as whether the estate had been fully distributed and whether there were competing claims from other beneficiaries.

In its judgment, the court acknowledged the significant delay in bringing the proceedings but emphasised the unique circumstances of the case, including the plaintiff's vulnerability and the potential impact of the estate distribution on her financial stability. The court found that the plaintiff had not been left with adequate provision for her proper maintenance, taking into account her financial and material circumstances. Despite the delay, the court exercised its discretion to extend the time limit, considering the exceptional circumstances and the competing claims of other beneficiaries. The court's decision allowed the claim to proceed, recognising the need for equitable consideration in the distribution of the estate.

The final orders of the court granted the plaintiff's application for an extension of time to bring her family provision claim and directed that the proceedings proceed to determine the appropriate share of the estate that should be awarded to her. The court's decision balanced the statutory time limit with the need for equitable outcomes in family provision claims, recognising the importance of considering the unique circumstances of each case.

Orders