Suzanne Hart v Joan Noelene Van Son - [2014] NSWSC 585

Supreme Court

New South Wales

Medium Neutral Citation: Suzanne Hart v Joan Noelene Van Son [2014] NSWSC 585
Hearing dates: 16 December 2013
Decision date: 14 May 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Summons dismissed

Catchwords: FAMILY PROVISION AND MAINTENANCE - Applicant former long time de facto of deceased who left him and now in new relationship - No factors warranting application and no inadequate provision - Succession Act 2006, s 59(1)(b) and (c)
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Brown v Faggoter [1998] NSWCA 44
Camernik v Reholc [2012] NSWSC 1537
Churtin v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Hamilton v Moir [2013] NSWSC 1200
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Fulop Deceased (1987) 8 NSWLR 679
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Suzanne Hart (Plaintiff)
Joan Noelene Van Son (Defendant)
Representation: Counsel: J. Anderson (Plaintiff)
L. Ellison SC (Defendant)
Solicitors: Farrell Lusher (Plaintiff)
Lewis & McKinnon (Defendant)

File Number(s): 2012/69640
Publication restriction: No

Judgment

Summary

In 1991 the plaintiff ("Ms Hart") met the late Herman Peter Damien Van Son. He was known as "Harry" and, without disrespect, I shall refer to him by that name in this judgment. At the time he met Ms Hart, Harry was 42 years old and Ms Hart was 18. Between 1992 and 2010 Ms Hart lived with Harry. Since then she has formed a new relationship and had a child.

Harry died intestate on 28 December 2011. On 12 June 2012 letters of administration of his intestate estate were granted to his mother, the defendant ("Mrs Van Son"). At the date of the hearing Mrs Van Son was about to turn 91 years old.

The estate is small. It consists of Harry's farming property (with residence) at Wagga Wagga (the "property"), for which there are appraisals in evidence valuing it between $280,000 and $360,000. At the time of Harry's death he had furniture and personal effects said to have a value of $2,000 and money in the bank of $2,500.

Because Harry died without either a spouse or any issue, Mrs Van Son is entitled to the whole of her son's intestate estate (s 128 of the Succession Act 2006 (NSW) (the "Act")). By summons filed on 20 November 2012, Ms Hart applies for provision out of Harry's intestate estate under s 59 of the Act.

The Court is not satisfied that there are factors warranting Ms Hart's application or that adequate provision has not been made by the operation of the intestacy rules in relation to Harry's estate. Ms Hart's summons will be dismissed.

The Act

Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a…

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: [2014] NSWSC 585
Decision Date: 14 May 2014

CaseChat Overview and Summary

Suzanne Hart has brought an application seeking to have her former de facto partner, Joan Noelene Van Son, provide her with maintenance from the estate of the deceased. The application was heard and dismissed by the Supreme Court of Queensland. The central legal issues revolved around whether the applicant was entitled to maintenance under section 59(1)(b) and (c) of the Succession Act 2006. These sections require the court to consider if the applicant has inadequate provision for their maintenance from the deceased’s estate and if there are any factors warranting maintenance.

The court examined the nature and duration of the relationship, the contributions made by both parties, and the reasons for the separation. It was established that the applicant left the relationship and is now in a new relationship. The court found that there were no exceptional factors warranting maintenance and that the applicant had not demonstrated inadequate provision from the estate. The applicant argued that she was entitled to maintenance based on her long-term relationship with the deceased, but the court held that this alone was not sufficient to warrant an order for maintenance.

The Supreme Court concluded that the applicant had not satisfied the criteria for maintenance under the Succession Act 2006. Consequently, the application was dismissed, and the court ordered that the applicant pay the respondent's costs of the application. This decision underscores the stringent requirements for maintenance claims under the Act, emphasising the need for exceptional circumstances or inadequate provision from the estate.

Orders