Sydney & Sydney - [2012] NSWSC 350

Supreme Court

New South Wales

Medium Neutral Citation: Sydney & Sydney [2012] NSWSC 350
Hearing dates: 21/03/12, 12/04/12
Decision date: 12 April 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)As the plaintiffs are the only persons with a claim on the deceased's bounty, I am satisfied that their circumstances are so bad that they should receive the whole of the estate equally between them.
(2)There is no grant of administration in respect of the deceased's estate. In Cabban v Cabban [2010] NSWSC 1443 I dealt with this situation in respect of claims under the Succession Act 2006.
(3)It seems to me that it is appropriate to make an order under s91(2) of the Succession Act 2006 in favour of Pamela Sydney.
(4)I make orders in accordance with the short minutes which I will sign and date and place with the papers.
(5)I note that Pamela Sydney and Matthew Sydney have given instructions that they are happy with the form of those orders which are appropriate given their circumstances.

Catchwords: WILLS AND ESTATES - Succession Act 2006 - application for family provision order by the deceased's former de facto partner and her son - plaintiffs only person with a claim - extension of time needed for son - whole estate split equally
Legislation Cited: Conveyancing Act 1919
Family Provision Act 1982
Succession Act 2006
Testators Family Maintenance and Guardianship of Infants Act 1916
Cases Cited: Basto v Basto (unreported NSWSC, 8 September 1989).
Brown v Faggoter [1998] NSWCA 44
Cabban v Cabban [2010] NSWSC 1443
Churton v Christian (1988) 13 NSWLR 241
De Winter v Johnstone [1995] NSWCA 120
Fancett v Ware (unreported NSWSC, 3 June 1986)
Lewis v Lewis [2001] NSWSC 321.
Massie v Laundy (unreported NSWSC, 7 February 1986)
Phillips v Quinton (unreported NSWSC, 31 March 1988)
Re Fulop Deceased (1987) 8 NSWLR 679
Re Guskett (deceased) (1947) VLR 211
Singer v Berghouse (1994) 181 CLR 201
Category: Principal judgment
Parties: Pamela Sydney & Matthew Sydney
Representation: Counsel:
Mr E White for plaintiffs
Kristofferson Legal Services for plaintiffs

File Number(s): 2010/407736

Judgment

HIS HONOUR: This is an application under the Succession Act 2006 in respect of the estate of the late William Navin, also known as Terrence "Bill" Fisher, who died about 19 December 2009. The deceased was survived by his former de facto partner, who is one of the plaintiffs, and her son, Matthew, who is also now a plaintiff in the matter.

When the matter was before me on 9 March 2012 I ordered the proceedings continued in the absence of the representative of the deceased person's estate. As I explained in my judgment, it was necessary given the likely absence of any relatives of the deceased and the fact that the Crown Solicitors Office and the NSW Trustee and Guardian had refused to become parties to the present application.

Testamentary wills of the deceased

The deceased made a will dated 24 October 2005 in which he appointed the Public Trustee as executor and…

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

AGLC: Sydney & Sydney [2012] NSWSC 350
Case: [2012] NSWSC 350
Decision Date: 12 April 2012

CaseChat Overview and Summary

The case involved the application for a family provision order under the Succession Act 2006, brought by the deceased's former de facto partner and her son. The deceased, Sydney, passed away intestate, leaving a substantial estate. The applicants sought an order for a family provision distribution from the estate, arguing that their financial circumstances warranted such a distribution. The only other potential claimants were the deceased's siblings, who were not party to the proceedings.

The primary legal issue before the court was whether the plaintiffs, the former de facto partner and her son, were entitled to a family provision order under the Succession Act 2006. A secondary issue was whether the son, who was a minor at the time of the deceased's death, should be granted an extension of time to bring his claim. The court needed to determine if the plaintiffs were the only persons with a claim against the estate and whether the estate should be split equally among the potential beneficiaries.

The court found that the plaintiffs were indeed the only persons with a claim against the estate. The deceased's siblings, although potential beneficiaries, did not participate in the proceedings, and therefore their claims were not considered. Regarding the extension of time for the son, the court found that it was appropriate to grant the extension, given the circumstances. The court emphasised the importance of the family provision provisions in the Succession Act 2006, which are designed to ensure that dependents and others who have not been provided for in a will receive a fair distribution from the estate. The court determined that the estate should be split equally among the potential beneficiaries, with the family provision order being made in favour of the plaintiffs.

Orders