Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572
Hearing dates:
24 & 25 August 2011
Decision date:
08 September 2011
Jurisdiction:
Equity Division
Before:
Hallen AsJ
Decision:
The Defendant should make available out of the estate of the deceased, a lump sum of $650,000 to purchase accommodation and pay stamp duty and legal costs on purchase, for the Plaintiff, Wendy Thomas. Provision in the form of a Crisp order in respect of such accommodation should be provided to her. Such provision should be in lieu of the provision made for her in the deceased's Will.
Unless any person wishes to make any application for costs, the usual order for her costs, capped at $50,000, should be made.
Upon her death, the estate's share of the proceeds of sale that are obtained from the sale of the property purchased, should be divided into equal shares, one share for each of Allan Byrne, Carmen Sadler and Carolyn Elms.
The Plaintiff, Leslie Byrne, should receive, in lieu of the provision made for him in the Will of the deceased, a lump sum of $165,000. Unless any person wishes to make any application for costs, the usual order for his costs should be made.
The provision for the Plaintiff, Allan Byrne in the Will of the deceased was not inadequate. His Summons should be dismissed.
The Defendant's costs, calculated on the indemnity basis, should be paid out of the estate.
Direct the parties to prepare short minutes that reflect these reasons for judgment. Stand the proceedings over to enable them to give consideration to the terms of the short minutes and to consider the issue of costs.
Stand the proceedings over to a mutually convenient time for the making of orders.
Catchwords:
Two different proceedings, in each of which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made - An order was made that the proceedings be heard consecutively, with the evidence in one being evidence in the other - first application was made by the de facto wife of the deceased - second application was made by three Plaintiffs, each of whom is a natural child of the deceased - leave granted to discontinue one Plaintiff's proceedings and made no order as to costs as she was adopted by other persons after her birth - the Defendant in each proceedings is a solicitor, the executor named in the Will of the deceased to whom Probate was granted
[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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Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Case
[2011] NSWSC 572
Decision Date
CaseChat Overview and Summary
The proceedings before the Court involved two separate claims for a family provision order under Chapter 3 of the Succession Act 2006. The first claim was made by the de facto wife of the deceased, and the second claim was made by three natural children of the deceased. The executor of the deceased's will, a solicitor, was the defendant in both proceedings. The Court ordered that the two proceedings be heard consecutively, with the evidence in one proceeding being admissible in the other. The Court granted leave to one of the natural children to discontinue her proceedings, as she had been adopted by other persons after her birth.
The central legal issue before the Court was whether the claims for family provision orders were to be heard together or separately. The Court also had to consider the admissibility of evidence between the two proceedings, as well as the costs implications of one of the natural children discontinuing her proceedings. The Court needed to balance the interests of the parties involved, including the deceased's de facto wife and natural children, against the executor of the deceased's will.
The Court held that it was appropriate to hear the two proceedings consecutively, with the evidence in one proceeding being admissible in the other. This decision was based on the fact that the claims were related, and the evidence in one proceeding would be relevant to the other. The Court also held that it was appropriate to grant leave to one of the natural children to discontinue her proceedings, as she had been adopted by other persons after her birth. The Court made no order as to costs in relation to the discontinued proceedings, as the Court considered it appropriate to do so given the circumstances of the case.
In summary, the Court ordered that the two proceedings be heard consecutively, with the evidence in one proceeding being admissible in the other. The Court granted leave to one of the natural children to discontinue her proceedings, and made no order as to costs in relation to the discontinued proceedings. The Court's decision was based on the need to balance the interests of the parties involved and to ensure that the proceedings were conducted in an efficient and effective manner.