Sim v Public Trustee, White v Public Trustee - [2005] NSWSC 751

CITATION:
Sim v Public Trustee, White v Public Trustee [2005] NSWSC 751

HEARING DATE(S): 13 July 2005

JUDGMENT DATE :

28 July 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice McLaughlin at 1

DECISION:
In each proceeding I make the following orders: (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 recoup out of the estate of the late Rose Ellen Jones ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned.

CATCHWORDS:
Succession. Family Provision. Claims by two adult daughters. Deliberate estrangement of each Plaintiff from Deceased. Statements by Deceased. Financial and material circumstances of each Plaintiff. Whether either plaintiff has been left without adequate provision for her proper maintenance. Significance of estrangement to community expectation. Estrangement is relevant to exercise of Court's discretion.

LEGISLATION CITED:
Family Provision Act 1982
Testator's Family Maintenance and Guardianship of Infants Act 1916

CASES CITED:
Singer v Berghouse (1994) 181 CLR 201
Walker v Walker (17 May 1996, unreported)

PARTIES:
Carolyn Dianne Sim (Plaintiff 2709 of 2004)
Lynette Helen White (Plaintiff 4059 of 2004)
The Public Trustee (Defendant in each proceeding)

FILE NUMBER(S):
SC 3709 of 2004; 4059 of 2004

COUNSEL:
C. Locke (Plaintiff 3709 of 2004)
R. Lovas (Plaintiff 4059 of 2004)
B. Townsend (Defendant in each proceeding)

SOLICITORS:
J. A. Kavanagh & Co (Plaintiff 3709 of 2004)
A. E. Dunne (Plaintiff 4059 of 2004)
B. Maher (Defendant in each proceeding)

LOWER COURT JURISDICTION:

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 28 July 2005

3709/04 - CAROLYN DIANNE SIM –v- THE PUBLIC TRUSTEE

4059/04 - LYNETTE HELEN WHITE –v- THE PUBLIC
TRUSTEE

JUDGMENT

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

2 By summons 3709 of 2004 filed on 30 June 2004 Carolyn Dianne Sim claims an order for her education, maintenance and advancement in life out of the estate of her late mother, Rose Ellen Jones (to whom I shall refer as “the Deceased”).

3 By summons 4059 of 2004 filed on 21 July 2004 Lynette Helen White claims an order for provision for her education, maintenance and advancement in life out of the estate of the Deceased.

4 On 4 August 2004 orders were made by consent that the two proceedings be heard together and that the evidence in each proceeding be evidence in the other. (Those orders were replicated in a further order made by consent on 27 April 2005.)

5 The Plaintiffs are the only children of the Deceased. I shall, without intending to them any disrespect, refer to Carolyn Dianne Sim as Carolyn, and to Lynette Helen White as Lynette. Carolyn was born on 1 January 1945, and is presently…

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

Case: [2005] NSWSC 751
Decision Date: 28 July 2005

CaseChat Overview and Summary

Two daughters, Sim and White, contested the will of their deceased father, bringing their claims before the court. The crux of the dispute was the deceased's estate distribution and whether the daughters had been provided with adequate maintenance. The deceased had deliberately estranged himself from both daughters, which significantly impacted their respective claims under the Family Provision Act. The daughters argued that the estrangement should not bar their claims for adequate provision for their maintenance, considering their father's statements and their own financial and material circumstances.

The court needed to determine the legal implications of the deceased's deliberate estrangement on the daughters' entitlement to make claims under the Family Provision Act. Specifically, the court had to weigh the relevance of estrangement in exercising its discretion to make orders for proper maintenance. The daughters argued that despite the estrangement, the court should consider their individual circumstances, including their father's statements and their respective needs, in deciding whether they had been left without adequate provision.

The court held that the deceased's deliberate estrangement was a relevant factor in assessing the daughters' claims. While estrangement did not automatically bar a claim for proper maintenance, it did influence the court's discretion. The court considered the statements made by the deceased and the individual circumstances of each daughter, including their financial situations and the impact of the estrangement. Ultimately, the court determined that neither daughter had been left without adequate provision for their proper maintenance, taking into account the estrangement and the overall distribution of the estate.

The court's final orders did not favour either daughter's claim, as it found that both had been left with sufficient provision for their maintenance despite the estrangement. The court's decision emphasised the importance of considering the deceased's deliberate actions in relation to the exercise of its discretion under the Family Provision Act.

Orders