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Taylor v Farrugia

Taylor v Farrugia

Case [2009] NSWSC 801 5 June 2009

Jurisdiction

Family Provision

Extension of Time

Discretionary Considerations

Succession Law

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CITATION: Taylor v Farrugia [2009] NSWSC 801
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1-4 June 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 5 June 2009

DECISION: Orders for provision made in favour of plaintiffs upon undertaking that plaintiffs forgo any entitlement to their reserved portion under Maltese law, to the intent that the defendant be solely entitled to the Maltese assets.

CATCHWORDS: SUCCESSION - Family Provision - Private International Law – testator dies domiciled in Malta leaving estate in both NSW and Malta - Whether Court has jurisdiction to deal with assets of the estate - Held: Court only has jurisdiction to deal with immovable property of the deceased in NSW - Court may take into consideration assets held in Malta when making determination and Maltese law in relation to distribution of estate assets – FAMILY PROVISION - adult children – whether adequate provision made for proper maintenance, education and advancement in life - discretionary considerations - whether provision ought to be made out of estate for the applicants - whether testatrix failed in her duty to those that have a claim on her – Extension of time to make application - where some plaintiffs did not bring application within time - where plaintiffs awaiting information as to entitlements under will which defendant fails to provide – whether prejudice suffered by defendant in extending time - discretionary considerations - Held: absence of adequate information about entitlements under will is sufficient cause – no prejudice suffered by defendant in extending limitation period - discretionary considerations favour extension

LEGISLATION CITED: (NSW) Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Balajan v Nikitin (1994) 35 NSWLR 51
Chan v Tsui [2005] NSWSC 82
De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported)
Fancett v Ware (Supreme Court of New South Wales, Needham J, 3 June 1986, unreported)
Foley v Foley [2008] NSWSC 233
Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported)
Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151
Heuston v Barber (1990) 19 NSWLR 354
King v Foster (Court of Appeal, 7 December 1995, unreported)
King v White [1992] 2 VR 417
Leue v Reynolds [1986] 4 NSWLR 590
Massie v Laundy (New South Wales Supreme Court, Young J, 7 February 1986, unreported)
McGrath v Eves [2005] NSWSC 1006
Ostrander v Houston (1915) 8 WWR 367
Pain v Holt (1919) 19 SR (NSW) 105
Parker v Public Trustee (New South Wales Supreme Court, Young J, 31 May 1988, unreported)
Re Butchart [1932] NZLR 125
Re Donnelly (1927) 28 SR (NSW) 34
Re Fulop Deceased (1987) 8 NSWLR 679
Re Guskett [1947] VLR 211
Re Osborne [1928] St R Qd 129
Re Paulin [1950] VLR 462
Re Sellar (1925) 25 SR (NSW) 540
Re WTN (NSWSC, Unreported, 3/7/59, McLelland CJ in Eq; noted (1959) 33 ALJ 240
Shah v Perpetual Trustee Company (1981)

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 Taylor v Farrugia

Details

AGLC: Taylor v Farrugia [2009] NSWSC 801
Case: [2009] NSWSC 801
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the matter of Taylor v Farrugia, the dispute revolves around the succession of an estate with assets located in both New South Wales and Malta. The deceased was domiciled in Malta at the time of death, and the plaintiffs, who are the deceased's adult children, sought to challenge the adequacy of the provisions made for them in the will. The dispute came before the Supreme Court of New South Wales, which was required to determine its jurisdiction over the Maltese assets and the application of family provision claims. The court was also tasked with assessing whether the deceased had adequately provided for the plaintiffs' maintenance, education, and advancement in life, and whether there was a duty to make provisions from the estate.

The legal issues before the court included whether it had jurisdiction to deal with the Maltese assets and whether it could consider Maltese law in its determination. Additionally, the court had to weigh the discretionary considerations relevant to the family provision claims, such as the adequacy of the provisions made and the failure of the deceased to properly provide for her children. A further issue was whether the limitation period for making an application should be extended, given that some plaintiffs did not bring their application within the required time, and whether the defendant would suffer prejudice as a result of this extension.

The court concluded that it only had jurisdiction to deal with the immovable property of the deceased located in New South Wales. However, it could take into account the assets held in Malta when making its determination, and it was appropriate to consider Maltese law in relation to the distribution of estate assets. The court found that the plaintiffs had not been adequately provided for and that the deceased had failed in her duty to those with a claim on her. It extended the limitation period for the plaintiffs to bring their application, finding that the absence of adequate information about their entitlements under the will was sufficient cause, and there was no prejudice suffered by the defendant in extending the limitation period. The discretionary considerations favoured the extension.

The court's final orders included granting the extension of time for the plaintiffs to make their application and determining that the deceased had not made adequate provision for the plaintiffs. The court also directed that the plaintiffs' entitlements under the will should be determined and that their claims would be assessed accordingly. The orders provided clarity on the jurisdiction of the court and the application of family provision claims in a cross-border succession matter.

Orders