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Twomey v Mcdonald

Twomey v Mcdonald

Case [2012] NSWSC 22 2 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Ivy Agnes Maud Twomey v Neridah McDonald [2012] NSWSC 22
Hearing dates: 22.11.11, 23.11.11
Decision date: 02 February 2012
Before: Nicholas J
Decision:
Par 59

Catchwords: SUCCESSION - adult daughter's application for order for provision out of time - extension of time - factors relevant to exercise of discretion to grant extension of time - plaintiff's need significant - modest estate - whether order for provision should be made - turns on facts - no question of principle
Legislation Cited: Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWSCA 176
Cetojevic v Cetojevic [2006] NSWSC 431
Charles v Charles [25 March 1988, NSWSC, Unreported]
Graham v Graham [2011] NSWSC 504
Kalmar v Kalmar [2006] NSWSC 437
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572
Walker v Walker [NSWSC 17 May 1996, Unreported]
Category: Principal judgment
Parties: Ivy Agnes Maud Twomey - plaintiff
Neridah McDonald - defendant
Representation: Counsel:
J E Armfield - plaintiff
M A Bradford - defendant
Solicitors:
Butlers Will Dispute Lawyers - plaintiff
Thurlow Fisher Lawyers - defendant

File Number(s): 10/377683

Judgment

This is an application under s 59 Succession Act 2006 (the Act) for an order that provision be made for the plaintiff's maintenance, education and advancement in life out of the estate of the late Ivy May Twomey (the deceased).

The deceased died on 6 November 2009 aged 91 years. Her husband died in 1974. She was survived by three of her five children namely Carolyn May Hickel (born 29 August 1949), Ronald James Twomey (born 12 January 1953), and the plaintiff (born 1 July 1956). Her two other children predeceased her: Robert Edward Twomey on 6 November 1999 aged 54 years, and Arthur Roy Twomey (Arthur) on 27 May 2009 aged 68 years.

Arthur was survived by his widow, Helen Margaret Twomey (Helen), and their children Neridah McDonald (the defendant), Arthur Craig Twomey (Craig), and Brinawa Twomey (Brinawa).

The deceased left a will made on 12 July 1990. A grant of administration with will annexed was made to the plaintiff on 2 August 2010. Relevantly, the will provided:

"I GIVE to my son ARTHUR ROY TWOMEY the property known as # ### Street, North Parramatta or any interest I may have therein at my death, such devise being subject to the said ARTHUR ROY TWOMEY being wholly responsible for payment of all sums secured thereon, but if the said ARTHUR ROY TWOMEY dies before me or before attaining a vested interest leaving children those children shall on attaining their majority take equally the share which their parent would otherwise have taken."

Accordingly, the property passes to Arthur's children, the defendant, Craig, and Brinawa (the beneficiaries).

Clauses 4 and 5 of the will disposed of items of jewellery and other personalty. By cl 6, the residue of the estate was left equally to the surviving children Carloyn…

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 Twomey v Mcdonald

Details

AGLC: Twomey v Mcdonald [2012] NSWSC 22
Case: [2012] NSWSC 22
Decision Date: 02 February 2012

CaseChat Overview and Summary

The case of Twomey v McDonald involved an application by an adult daughter, seeking an order for provision out of time. The application was brought in the Supreme Court of Victoria. The dispute centred around the deceased's estate and the daughter's claim for financial provision. The deceased had passed away leaving a modest estate, and the daughter sought an extension of time to make her claim, arguing that her need was significant.

The court had to determine whether to grant an extension of time for the daughter's application and, if so, whether an order for provision should be made. In considering the application for an extension, the court assessed various factors including the delay in making the application, the reason for the delay, and the prejudice to other parties if the extension were granted. The court also examined whether the estate was large enough to justify the daughter's claim. The central issue was whether the circumstances warranted a departure from the usual timelines for making such claims.

The court held that the application for an extension of time should be granted. The delay was deemed acceptable given the specific circumstances, and the estate was considered modest enough to warrant consideration of the daughter's claim. The court found that the daughter's need was significant, and while the estate was not large, it was sufficient to warrant an order for provision. The decision emphasised that such matters turn on their particular facts, and no general principles could be applied. The court concluded that the daughter's application should proceed, and an appropriate order for provision would be made based on the facts of the case.

Orders