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Thirkell v Cox

Thirkell v Cox

Case [2010] NSWSC 99 24 February 2010

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CITATION: Thirkell v Cox [2010] NSWSC 99

HEARING DATE(S): 23/11/09, 11/12/09

JUDGMENT DATE :
24 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 64

CATCHWORDS: Family Provision. Claim by step-daughter. Short period of dependency. Held that plaintiff who lived with her father in the deceased's house was dependant on deceased. Order for modest provision.

PARTIES: Beverley Margaret Thirkell v Paul Ian Cox

FILE NUMBER(S): SC 1963/08

COUNSEL: Mr R Marshall for plaintiff
Mr TJ Morahan for defendant

SOLICITORS: Patey & Murphy for plaintiff
McDonald Johnson for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Wednesday 24 February 2010

1963/2008 Beverley Margaret Thirkell v Paul Cox (Estate of Laura Octavia Atkins)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 (‘the Act’) in respect of the estate of the late Laura Octavia Atkins who died on 30 December 2006. The deceased was survived by her two sons, one of whom is the defendant in the proceedings. The evidence does not indicate whether the deceased’s former husband is still alive. He was last seen after his separation from the deceased in 1958 when he went to live in Melbourne. I am satisfied that it is impractical to serve him with notice of these proceedings.

2 The plaintiff is a stepdaughter of the deceased. The deceased married the plaintiff’s father late in life.

The last will of the deceased

3 The deceased made her will on 10 July 2003. She appointed her son, Paul Ian Cox, the defendant, executor of her estate. In her will she set up a fund of $50,000 to provide for her disabled son, Norman Graham Cox. The residue of her estate was left to the defendant, Paul Cox, or if he predeceased her, his share was to go to her son, Norman Graham Cox. In default of Norman Graham Cox surviving the defendant, the estate would pass to the plaintiff Beverley Margaret Thirkell. Presently the defendant is entitled to the residue of his mother’s estate.

Assets in the estate

4 The estate consists of the deceased’s property at Teralba Road, Broadmeadow valued at $280,000, furniture and a bank account of some $18,152. The defendant has added $32,000 of his own money to this amount and he has set up the trust fund for his brother pursuant to the will.

5 The defendant’s costs are estimated at $32,725 and the plaintiff’s costs are estimated at $48,400 on the basis that the matter was a one-day hearing. Unfortunately because of difficulty obtaining a witness the matter was adjourned for a further hearing.

Family history

6 The plaintiff was born in May 1940. Her father was Stanser Roy Atkins, and her mother, Clarice May Atkins. She was one of four children.

7 The deceased married Norman Cox on 17 January 1942. He was a merchant seaman who spent about one week out of six at home while the rest of the time…

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 Thirkell v Cox

Details

AGLC: Thirkell v Cox [2010] NSWSC 99
Case: [2010] NSWSC 99
Decision Date: 24 February 2010

CaseChat Overview and Summary

In the case of Thirkell v Cox, Thirkell, the step-daughter of Cox, filed a claim against Cox, the executor of her father's estate, under the Family Provision Act. The dispute centred on whether Thirkell was entitled to a provision from her father's estate, despite the brief period of dependency. Thirkell and her father had lived together in the deceased's house, and she argued that she was dependent on him during this time.

The legal issues the court had to address were whether Thirkell qualified as a person who was in the habit of depending on the deceased for maintenance and whether this dependency was sufficient to warrant a provision from the estate. The court needed to evaluate the nature and extent of the dependency and consider whether Thirkell's relationship with her father justified a claim against the estate.

The court found that Thirkell, who lived with her father in the deceased's house, was indeed dependent on him. It was held that the dependency, albeit short in duration, was sufficient to entitle her to a claim under the Act. The court considered the unique circumstances of the relationship and the practical dependency that Thirkell had on her father. As a result, the court ordered a modest provision to be made to Thirkell from the estate. This decision recognised the dependency that existed between Thirkell and her father and the need to provide for her despite the brief period of reliance.

Orders