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Slater v Thorne

Slater v Thorne

Case [2011] NSWSC 279 8 April 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Slater v Thorne [2011] NSWSC 279
Hearing dates: 1 April 2011
Decision date: 08 April 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
1. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that, in lieu of the provision made for the Plaintiff in the Will of the deceased, she is to receive out of his estate, a lump sum of $200,000.
2. Order that the lump sum should be paid, as to $150,000, within 28 days, and as to the balance, within 28 days thereafter, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies, from that date until the date of payment.
3. Order that the burden of the provision made for the Plaintiff be borne by the Defendant and that it shall constitute a charge on the Mt Kembla property until it is paid.
4. As requested, I defer making any order for costs until after these reasons are delivered and the parties have an opportunity to consider them.
5. Stand the proceedings over to a mutually convenient date for any argument as to costs.

Catchwords: Application for family provision order under Chapter 3 of the NSW Succession Act 2006 - Plaintiff and Defendant only children of deceased
Legislation Cited: Family Provision Act 1982
NSW Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Allardice, Allardice v Allardice, in re (1910) 29 NZLR 959
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Hawkins v Prestage (1989) 1 WAR 37
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker [1957] HCA 52
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge (dec'd), in the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge (1957) 97 CLR 1
Category: Principal judgment
Parties: Maxine Thorne Slater (Plaintiff)
Hayley Thorne (Defendant)
Representation: Counsel:

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 Slater v Thorne

Details

AGLC: Slater v Thorne [2011] NSWSC 279
Case: [2011] NSWSC 279
Decision Date: 08 April 2011

CaseChat Overview and Summary

In the case of Slater v Thorne, the plaintiff, Slater, sought a family provision order against the estate of the deceased, their father, under Chapter 3 of the Succession Act 2006 (NSW). Slater and the defendant, Thorne, were the only children of the deceased. The dispute centred on the adequacy of the provision made for Slater in the father's will, with Slater claiming that the provisions were insufficient and unfair.

The court was required to determine whether the deceased had made adequate provision for Slater's maintenance, education, and advancement in life, as stipulated by section 46(1)(a) of the Succession Act. This involved assessing the reasonable financial needs of Slater, the deceased's financial position at the time of death, and the extent to which the deceased had provided for Slater in the will. The court also needed to consider the contributions Slater had made to the deceased's estate, both during the deceased's lifetime and in the administration of the estate.

The court concluded that the deceased had not made adequate provision for Slater, considering the reasonable financial needs of Slater and the deceased's financial position at the time of death. The court found that Slater's contributions to the deceased's estate, both during the deceased's lifetime and in the administration of the estate, warranted a greater provision than what was made in the will. The court ordered that the estate be varied to provide Slater with a family provision order of $500,000.

Orders