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Simonetto v Dick

Simonetto v Dick

Case [2013] NTSC 77 14 November 2013

Family Provision Act (NT) s 8(1)

Estrangement

Moral Duty

Succession Law

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Simonetto & Simonetto v Dick [2013] NTSC 77
PARTIES:SIMONETTO, Craig Paul

AND
SIMONETTO, Louise Jane
v
DICK, Mary Julienne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:11/2011 (21128762)
DELIVERED:  14 November 2013
HEARING DATES:  24 -27 June, 11 July 2013
JUDGMENT OF:  HILEY J
CATCHWORDS:

SUCCESSION – Family provision - Application by adult grandchildren of testator - Plaintiffs’ deceased father had made substantial contribution to testator's family building business - Relationship between plaintiffs and deceased broke down – Family members entered into Deed to rearrange family affairs including ownership of various properties - Deceased's will made no provision for the plaintiffs - Jurisdictional question – Plaintiffs not left without adequate provision for their proper maintenance, education or advancement in life - Estrangement - Moral duty – Family Provision Act (NT) s 8(1).
Andrew v Andrew (2012) 81 NSWLR 656; Andrew v Andrew [2011] NSWSC 115; Blore v Lang [1960] 104 CLR 124; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275; Brennan v Mansfield [2013] SASC 83; Coates v National Trustee Executors and Agency Co Ltd (1956) 95 CLR 494; Cooper v Dungan (1976) 9 ALR 93; Edgar v Public Trustee for the Northern Territory [2011] NTSC 5; Goodman v Windeyer (1980) 144 CLR 490; Hughes v National Trustee & Executor Agency of Australia (1979) 143 CLR 134; Lieberman v Morris (1944) 69 CLR 69; McCosker v McCosker (1957) 97 CLR 566; Re Allen (Dec’d); Allen v Manchester [1922] NZLR 218; Singer v Berghouse (1994) 181 CLR 201; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Vigolo v Bostin (2005) 221 CLR 191; White v Barron(1980) 144 CLR 431, applied.
Anasson v Phillips (unreported, Supreme Court of New South Wales, 4 March 1988, Young J); Bennett v Bennett [2001] NSWSC 987 at [23]; Ernst v Ryf [2001] NSWSC 1167 at [37]; In re Sinnott (1948) VLR 279; Mann v Starkey [2008] NSWSC 263; Nicholas v Nicholas [2013] NSWSC 697; Pellissier v Melville & Ors [2006] NTSC 93; Re Anderson (Dec’d) (1975) 11 SASR 276; Ross & Anor v Public Trustee for the Northern Territory [1996] NTSC 31, referred to.
Family Provision Act (NT) s 7(1)(e), s 7(3), s 8(1), s 8(3), s 8(4), s 22(1), s 22(2), s 22(3)
REPRESENTATION:
Counsel:
First and Second Plaintiffs:        P A Haywood-Smith QC
Defendant:S D Ower
Solicitors:
First and Second Plaintiffs:        Cridlands MB
Defendant:Gardiner & Associates
Judgment category classification:   B
Judgment ID Number:  Hil1304
Number of pages:  68

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Simonetto & Simonetto v Dick [2013] NTSC 77

No. 11/2011 (21128762)
BETWEEN:

CRAIG PAUL SIMONETTO

First Plaintiff

AND:

LOUISE JANE SIMONETTO

Second Plaintiff

AND:

MARY JULIENNE DICK

Defendant

CORAM: HILEY J

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 Simonetto v Dick

Details

AGLC: Simonetto & Simonetto v Dick [2013] NTSC 77
Case: [2013] NTSC 77
Decision Date: 14 November 2013

CaseChat Overview and Summary

The plaintiffs in this case were the adult grandchildren of the deceased, who sought to challenge the validity of the will of their grandfather, the testator. The dispute centred around the deceased's failure to make adequate provision for the plaintiffs in his will, despite their father's significant contributions to the family building business. The relationship between the plaintiffs and the deceased deteriorated, leading to a Deed being executed to rearrange family affairs, including ownership of various properties. The deceased's will did not include any provision for the plaintiffs, and they sought relief under the Family Provision Act (NT) s 8(1), claiming that they were not left with adequate provision for their proper maintenance, education, or advancement in life.

The primary legal issue for the court was whether the plaintiffs were entitled to a family provision order under the Family Provision Act (NT) s 8(1). The court had to consider whether the plaintiffs were left without adequate provision for their proper maintenance, education, or advancement in life, and if so, whether there was a moral duty on the part of the deceased to make provision for them. The court also had to examine the effect of the estrangement between the plaintiffs and the deceased on the application for relief under the Act.

The court found that the plaintiffs were not left without adequate provision for their proper maintenance, education, or advancement in life. The court considered the plaintiffs' financial circumstances and determined that they had sufficient means to support themselves. The court also noted that the estrangement between the plaintiffs and the deceased was a relevant factor in assessing the moral duty owed by the deceased to the plaintiffs. The court concluded that there was no moral duty on the part of the deceased to make provision for the plaintiffs, and dismissed their application. The court found that the deceased had acted reasonably in making no provision for the plaintiffs in his will, given the circumstances of the case.

The court made no orders in favour of the plaintiffs and dismissed their application for family provision under the Family Provision Act (NT) s 8(1). The court emphasised that the decision was based on the specific circumstances of the case, and that each case would turn on its own facts. The court also highlighted the importance of considering the estrangement between the parties when assessing the moral duty owed by the deceased to the applicants.

Orders