Warland v Reece - [2000] NSWCA 380

CITATION: Warland v Reece [2000] NSWCA 380

FILE NUMBER(S): CA 40895/99

HEARING DATE(S): 31 August 2000

JUDGMENT DATE:
31 August 2000

PARTIES :

Patria Virola WARLAND (In the Estate of the late John Richard WARLAND) v Helen Margaret REECE as tutor for Ashley Richard REECE

JUDGMENT OF: Meagher JA at 1; Handley JA at 13; Stein JA at 14

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 1348/98

LOWER COURT
JUDICIAL OFFICER : Master Macready

COUNSEL: Appellant: M.Lilienthal
Respondent: M.B. Oakes SC/M. Evans

SOLICITORS: Appellant: Mark Solomon & Associates.
Respondent: Thomas Mitchell Partners.

CATCHWORDS: Family Provision Act - provision from estate extinguishes pension rights of invalid son - provision reviewed.

CASES CITED:
Luciano v Rosenblaum (1985) 2 NSWLR 65
Elliott v Elliott (unreported, Powell J, Supreme Court of New South Wales 24 April 1986)

DECISION: 1. Appeal allowed; 2. Judgment and orders of Master Macready made 29 October 1999 be set aside; 3. In lieu thereof, the plaintiff to recieve a legacy payable from the estate of the late John Richard Warland in the sum of $325,750 from which are to be deducted any amounts of the original legacy which have been already paid; 4. Interest from today's date; 5. Costs of both parties in the appeal are to be paid out of the estate.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40895/99

MEAGHER JA
HANDLEY JA
STEIN JA

Thursday 31 August 2000

Patria Virola WARLAND v Helen Margaret REECE as Tutor for Ashley Richard REECE

JUDGMENT
1   MEAGHER JA: This is an appeal by Patria Virola Warland, the fifth and last wife of the late John Richard Warland. She was the sole executrix of his will and the sole trustee of his estate, she was also the only beneficiary under his will.
2   The respondent, Ashley, is his son by a relationship he had with an ex-employee named Helen Raymond Reece, who is now his tutor for the purpose of this litigation. None of his other wives or children seem to claim against the estate. The Master found the net value of the estate was approximately $800,060.
3   The respondent, Ashley, is both autistic and of subnormal intelligence. In an ideal world he should be placed in an appropriate institution but at the moment there is no institution which will accept him while his mother is alive. He and his mother live together in a unit. He has a normal life expectancy, and he was born on 23 November 1980.
4   The appellant, Mrs Warland, seems to have had a happy and enjoyable relationship with her husband, the deceased. They had five years of marriage and two years living together before that. She doubtless loved him and he her. Over the period of her marriage she accumulated certain assets which the master estimated at $442,367. It is suggested, with some plausibility by the respondent that there should be added to that two further assets, one $26,680 and one $80,000. If those additions…

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 Warland v Reece

Details

AGLC: Warland v Reece [2000] NSWCA 380
Case: [2000] NSWCA 380
Decision Date: 31 August 2000

CaseChat Overview and Summary

The appeal in *Warland v Reece* concerned an application for provision from the estate of the late John Richard Warland. The plaintiff, an invalid son of the deceased, sought to review a previous order made by Master Macready. The central dispute revolved around the impact of a provision from the estate on the plaintiff's existing pension rights.

The Court of Appeal was required to determine whether the provision made for the plaintiff from the deceased's estate was adequate, particularly in light of its effect on his entitlement to a pension. The court had to consider the deceased's testamentary intentions and the plaintiff's circumstances, including his invalidity and financial needs, when assessing the fairness of the provision.

The Court of Appeal allowed the appeal, setting aside the previous judgment and orders. In their place, the court ordered that the plaintiff receive a legacy of $325,750 from the estate, with a deduction for any amounts already paid. The court also ordered that interest be paid from the date of the judgment and that the costs of both parties in the appeal be paid out of the estate.

Orders

Orders of the court

1. Appeal allowed; 2. Judgment and orders of Master Macready made 29 October 1999 be set aside; 3. In lieu thereof, the plaintiff to recieve a legacy payable from the estate of the late John Richard Warland in the sum of $325,750 from which are to be deducted any amounts of the original legacy which have been already paid; 4. Interest from today's date; 5. Costs of both parties in the appeal are to be paid out of the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Warland v Reece [2000] NSWCA 380
FILE NUMBER(S):	CA 40895/99
HEARING DATE(S):	31 August 2000
JUDGMENT DATE:	31 August 2000
PARTIES :	Patria Virola WARLAND (In the Estate of the late John Richard WARLAND) v Helen Margaret REECE as tutor for Ashley Richard REECE
JUDGMENT OF:	Meagher JA at 1; Handley JA at 13; Stein JA at 14

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	1348/98
LOWER COURT JUDICIAL OFFICER :	Master Macready

COUNSEL:	Appellant: M.Lilienthal Respondent: M.B. Oakes SC/M. Evans
SOLICITORS:	Appellant: Mark Solomon & Associates. Respondent: Thomas Mitchell Partners.
CATCHWORDS:	Family Provision Act - provision from estate extinguishes pension rights of invalid son - provision reviewed.
CASES CITED:	Luciano v Rosenblaum (1985) 2 NSWLR 65 Elliott v Elliott (unreported, Powell J, Supreme Court of New South Wales 24 April 1986)
DECISION:	1. Appeal allowed; 2. Judgment and orders of Master Macready made 29 October 1999 be set aside; 3. In lieu thereof, the plaintiff to recieve a legacy payable from the estate of the late John Richard Warland in the sum of $325,750 from which are to be deducted any amounts of the original legacy which have been already paid; 4. Interest from today's date; 5. Costs of both parties in the appeal are to be paid out of the estate.