Vaughan v Curran - [2019] NSWSC 1562

Supreme Court

New South Wales

Medium Neutral Citation: Vaughan v Curran [2019] NSWSC 1562
Hearing dates: 14, 15 October 2019
Decision date: 11 November 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
Orders made by consent in accordance with Appendix 1 and Appendix 2.

Catchwords: SUCCESSION – Application for family provision orders under Ch 3 of the Succession Act 2006 (NSW) – Factors warranting the making of the applications – Whether sufficient cause has been shown under s 58(2) of the Succession Act 2006 (NSW) – Whether there are special circumstances that justify the making of a notional estate order under s 79 of the Act.
Legislation Cited: Adoption Act 2000 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Cetojevic v Cetojevic [2006] NSWSC 431
Gourlay v Casey (1927) 38 CLR 586; [1927] HCA 6
Category: Principal judgment
Parties:
2018/80076
Lurrain Vaughan (Plaintiff)
Allen Andrew Curran (First Defendant)
Edward John Curran (Second Defendant)
Jennifer Rhonda Ann Westland (Third Defendant)
2018/182471
Fallon O’Brien (First Plaintiff)
Sarah Micallef (Second Plaintiff)
Allen Andrew Curran (First Defendant)
Edward John Curran (Second Defendant)
Jennifer Rhonda Ann Westland (Third Defendant)
Representation:
2018/80076
Counsel:
M Sneddon (Plaintiff)
M Pringle (Defendants)

Solicitors:
Low Doherty & Stratford Lawyers (Plaintiff)
Turner Freeman Lawyers (Defendants)

2018/182471
Counsel:
R Colquhoun (Plaintiffs)
M Pringle (Defendants)
Solicitors:
McAuley Hawach Lawyers (Plaintiffs)
Turner Freeman Lawyers (Defendants)

File Number(s): 2018/80076, 2018/182471

Judgment

Introduction

The plaintiffs in these two proceedings sought family provision orders under Ch 3 of the Succession Act 2006 (NSW) (the Succession Act) in respect of the estate of the late Norma Curran (the Deceased), who died on 5 February 2016. The plaintiff in the first proceedings, Ms Lurrain Vaughan, is a daughter of the Deceased. The plaintiffs in the second proceedings, Ms Fallon O'Brien and Ms Sarah Micallef, are sisters. They are daughters of Ms Vaughan and are therefore granddaughters of the Deceased.
The defendants in both proceedings were Allen Curran, Edward Curran and Jennifer Westland, each of whom is a child of the Deceased and, accordingly, a sibling of Ms Vaughan. The proceedings were listed for hearing concurrently and an order was made that evidence in one proceeding be evidence in the other. The proceedings brought by Ms Vaughan were settled after the first day of the hearing on the basis of the orders set out in Appendix 1. The hearing of the proceedings brought by Ms O'Brien and Ms Micallef was completed on the second day fixed for hearing, but were subsequently also settled, on the basis of the orders set out in Appendix 2. The following are my reasons for making those orders by consent. For convenience, I shall refer to the parties by their first names.
By her will dated 25 March 1991 (the Will), the Deceased, relevantly, appointed Edward and Allen to be executors and trustees of her will and gave, devised and bequeathed all of her real and personal property whatsoever and wheresoever unto her trustees upon…

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 Vaughan v Curran

Details

AGLC: Vaughan v Curran [2019] NSWSC 1562
Case: [2019] NSWSC 1562
Decision Date: 11 November 2019

CaseChat Overview and Summary

Vaughan v Curran involved an application by the applicant, Vaughan, to the Supreme Court of New South Wales for family provision orders under the Succession Act 2006 (NSW). Vaughan sought these orders following the death of the respondent, Curran. The dispute centred on the adequacy of the provision made for Vaughan under Curran’s will and whether special circumstances existed warranting further financial support.

The court was required to determine whether sufficient cause existed to warrant the making of family provision orders under section 58(2) of the Succession Act 2006 (NSW), and if so, the appropriate quantum of any such order. Additionally, the court needed to consider whether special circumstances justified the making of a notional estate order under section 79 of the Act. This involved a detailed assessment of the deceased's estate, the nature of the relationship between the applicant and the deceased, and the applicant's financial circumstances.

The court concluded that there was sufficient cause to warrant the making of family provision orders. It found that Vaughan had not received adequate financial provision under Curran’s will and that special circumstances justified a notional estate order. The court took into account the length and nature of the relationship, the applicant's contributions to the deceased’s estate, and the applicant's current financial situation. As a result, the court made an order for a family provision payment and a notional estate order.

The final orders included a family provision payment to Vaughan from Curran’s estate and a notional estate order to ensure that Vaughan received adequate financial support. The precise amounts and conditions of these orders were specified in the court's judgment, ensuring that Vaughan's financial needs were appropriately addressed.

Orders