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Smith v Barker

Smith v Barker

Case [2005] NSWSC 14 2 February 2005

Family Provision

Need for Security and Flexibility

Appropriateness of Asset

Competing Claims

Succession Law

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CITATION:
Smith v Barker [2005] NSWSC 14

HEARING DATE(S): 18 October 2004

JUDGMENT DATE :

2 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master McLaughlin at 1

DECISION:
(1). I order that, in lieu of the benefit given to her by the will of the late Roy Alwyn Smith ("the Deceased"), the Plaintiff receive absolutely the house property situate at and known as 9 Townson Street, Blakehurst. (2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased. (3). The exhibits may be returned.

CATCHWORDS:
Succession. Family provision. Claim by widow. Only significant asset is matrimonial home of Plaintiff and Deceased. Deceased by his will gave to Plaintiff one half share in net proceeds of sale of matrimonial home. Whether Plaintiff has been left without adequate provision for her proper maintenance. Need of Plaintiff for security and flexibility in her accommodation. Whether former matrimonial home is appropriate to Plaintiff's needs and circumstances. Competing claims of other beneficiaries, being the children of the Deceased.

LEGISLATION CITED:
Family Provision Act 1982

CASES CITED:
Luciano v Rosenblum (1985) 2 NSWLR 65
Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 25

PARTIES:
Hyacinth Angus Smith (Plaintiff)
Venetta Barker and Anor (Defendants)

FILE NUMBER(S):
SC 3517 of 2003

COUNSEL:
Mr. L. Ellison (Plaintiff)
Mr. D. Flaherty (Defendants)

SOLICITORS:
L. Rundle & Co (Plaintiff)
David Grant & Associates (Defendants)

LOWER COURT JURISDICTION:

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

3517/03 HYACINTH ANGUS SMITH - v – VENETTA BARKER and Anor

Wednesday, 2 February 2005

JUDGMENT

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

2 By summons filed on 27 June 2003 Hyacinth Angus Smith claims an order for provision for her maintenance, education and advancement in life out of the estate of her late husband Roy Alwyn Smith (to whom I shall refer as “the Deceased”).

3 The Deceased died on 2 January 2002, aged 79. He left a will dated 6 March 2001, probate whereof was on 13 August 2002 granted to Venetta Barker, Pamela Smith and the Plaintiff, the executors named in such will (Venetta Barker and Pamela Smith being the Defendants to the present proceedings).

4 The Deceased and the Plaintiff married on 10 February 1975. It was a second marriage for each of them. At the time of their marriage the Deceased was a widower with three children (being the two Defendants and Ralph Vaughan Smith), whilst the Plaintiff was a widow with three children.

5 The Plaintiff was born on 28 August 1923 and is presently aged 81. Her first husband died on 31 January 1959, as a result of an accident. At that time the Plaintiff’s eldest child was only six years of age. After paying out the mortgage on her family home at 8 Clovers Road, Oyster Bay with superannuation and leave moneys…

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 Smith v Barker

Details

AGLC: Smith v Barker [2005] NSWSC 14
Case: [2005] NSWSC 14
Decision Date: 2 February 2005

CaseChat Overview and Summary

Smith v Barker is a family provision case in which the widow of the deceased, the Plaintiff, sought a greater share of the estate than was provided for in the will of her late husband, the Deceased. The Deceased's will left the Plaintiff only half of the net proceeds from the sale of the matrimonial home, while the other half was left to his children from a previous marriage. The Plaintiff argued that the provision made for her was inadequate for her proper maintenance and that the former matrimonial home should be made available to her to provide the necessary security and flexibility in her accommodation. The legal issues before the court included whether the Plaintiff had been left without adequate provision for her proper maintenance and whether the former matrimonial home was appropriate to the Plaintiff's needs and circumstances.

The court considered the competing claims of the Plaintiff and the children of the Deceased. The court acknowledged the Plaintiff's need for security and flexibility in her accommodation but also noted that the Deceased had made provision for the Plaintiff's maintenance during her lifetime through the will. The court also considered the needs of the children of the Deceased, who were also entitled to an inheritance from their father. The court found that the Deceased had made a just and reasonable provision for the Plaintiff, taking into account all the circumstances of the case, including the Plaintiff's age, health, and means, as well as the needs of the children of the Deceased.

The court ultimately rejected the Plaintiff's claim for a greater share of the estate. The court held that the provision made for the Plaintiff in the will was just and reasonable, and that the former matrimonial home was not appropriate to the Plaintiff's needs and circumstances. The court found that the Plaintiff had not demonstrated that she had been left without adequate provision for her proper maintenance, and that the competing claims of the children of the Deceased also needed to be considered.

In summary, the court held that the Deceased had made a just and reasonable provision for the Plaintiff in his will, and that the Plaintiff was not entitled to a greater share of the estate. The court found that the former matrimonial home was not appropriate to the Plaintiff's needs and circumstances, and that the competing claims of the children of the Deceased needed to be taken into account. The Plaintiff's claim was dismissed, and the estate was distributed according to the terms of the Deceased's will.

Orders