Squire v Squire

Case [2019] NSWCA 90

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Squire v Squire [2019] NSWCA 90
Hearing dates: 29 November 2018
Decision date: 30 April 2019
Before: Macfarlan JA at [1];
Meagher JA at [2];
Simpson AJA at [47]
Decision:

1. Appeal allowed.
2. Set aside orders 1, 2, 3 and 4 made by Kunc J on 4 May 2018 and entered on 7 May 2018, this order not to affect the costs order made by Hallen J on 14 November 2016.
3. Parties to prepare and provide to the Associate to Justice Macfarlan by 5pm on 14 May 2019 short minutes formulating the orders described above.
4. In the event that the parties contend for costs orders different from or in addition to those proposed above, they are to provide to the Associate to Justice Macfarlan by 5pm on 14 May 2019 written submissions, not to exceed 5 pages, in support of the orders sought. The Court will decide what orders should be made.

Catchwords: SUCCESSION – Succession Act 2006 (NSW), s 59 – family provision claim – where deceased’s will left entire estate to respondent – where deceased and respondent separated shortly before deceased’s death – where deceased proposed to make a new will in light of separation – where before deceased’s death, deceased and respondent contracted to sell jointly held property and divide proceeds equally – whether deceased and respondent effected final financial settlement following separation – whether deceased’s share of sale proceeds, settlement occurring after death, should be designated as notional estate – whether adequate provision made for proper maintenance and advancement in life of two adult children
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Succession Act 2006 (NSW), ss 58, 59, 60, 61, 75, 76, 77, 80, 83, 87, 88, 99
Cases Cited: Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lodin v Lodin [2017] NSWCA 327
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Scott v Scott [2009] NSWSC 567
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Texts Cited: Peter Butt, Land Law (6th ed, Law Book Co, 2010)
Category:Principal judgment
Parties: Paul Francis Aubrey Squire (First Appellant)
Claire Louise Isobel Beech (Second Appellant)
Corinne Ann Squire in her capacity as executrix of the estate of the late Richard Squire (Respondent)
Representation:

Counsel:
AG Martin, MA Tovey (Appellants)
P Glissan (Respondent)

  Solicitors:
Branston Neville Lawyers (Appellants)
Roderick Storie Solicitors (Respondent)
File Number(s): 2018/170879
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:
[2018] NSWSC 594
Date of Decision:
04 May 2018
Before:
Kunc J
File Number(s):
2016/122471

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Squire v Squire [2019] NSWCA 90
Case
[2019] NSWCA 90
Decision Date

CaseChat Overview and Summary

In *Squire v Squire*, the New South Wales Court of Appeal considered a family provision claim brought by two adult children of the deceased against the respondent, who was the deceased's former spouse. The deceased's will left the entirety of his estate to the respondent. The dispute arose because the deceased and the respondent had separated shortly before the deceased's death, and the deceased had indicated an intention to make a new will. Furthermore, prior to the deceased's death, the parties had contracted to sell a jointly held property and divide the proceeds equally.

The central legal issues before the Court of Appeal were whether the deceased and the respondent had effected a final financial settlement following their separation, and consequently, whether the deceased's share of the sale proceeds, which would be settled after his death, should be treated as notional estate for the purposes of the family provision claim. The court also had to determine whether the deceased's will made adequate provision for the proper maintenance, education, and advancement in life of his two adult children.

The Court of Appeal allowed the appeal, setting aside the orders previously made by Kunc J. The court's reasoning, though not fully detailed in the provided text, focused on the determination of notional estate and the adequacy of provision. The outcome was that the previous orders were overturned, with directions given for the parties to prepare short minutes formulating the new orders, and for written submissions on costs if the parties sought orders different from those implied by the appeal's success.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1, 2, 3 and 4 made by Kunc J on 4 May 2018 and entered on 7 May 2018, this order not to affect the costs order made by Hallen J on 14 November 2016.

3. Parties to prepare and provide to the Associate to Justice Macfarlan by 5pm on 14 May 2019 short minutes formulating the orders described above.

4. In the event that the parties contend for costs orders different from or in addition to those proposed above, they are to provide to the Associate to Justice Macfarlan by 5pm on 14 May 2019 written submissions, not to exceed 5 pages, in support of the orders sought. The Court will decide what orders should be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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