Watson v Watson - [2002] NSWSC 919

CITATION: Watson & 2 Ors v Watson [2002] NSWSC 919

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2657/2000

HEARING DATE(S): 17 September 2002

JUDGMENT DATE: 4 October 2002

PARTIES :

Michael Anthony Watson
(First Plaintiff)
Suzanne Margaret Watson
(Second Plaintiff)
Peter John Watson
(Third Plaintiff)
Christopher Robert Watson
(Defendant)

JUDGMENT OF: Acting Master Berecry

COUNSEL :
Mr L Ellison
(Plaintiffs)
Mr M S Willmott
(Defendant)

SOLICITORS:
Heckenberg Associates Solicitors
(Plaintiffs)
Eric Butler Solicitors
(Defendant)

CATCHWORDS: Family Provision Act - children of deceased enduring power of attorney - transfer of property - contrary to interest of donor - credit of executor - notional estate - whether defendant a disinterested executor - costs

LEGISLATION CITED: Family Provisions Act 1982 - ss 7 & 22
Conveyancing Act 1991 - s 163B

CASES CITED: The Margaret Mitchell 166 ER 1174 at 1199
Powell v Thompson [1991] NZLR 597 at 605

DECISION: See paras 60 and 61

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY, 4 OCTOBER 2002

2657/2000 - MICHAEL ANTHONY WATSON & 2 ORS v
CHRISTOPHER ROBERT WATSON

JUDGMENT

1 MASTER: On 5 June 2000 the plaintiffs commenced proceedings, by way of summons, seeking an order under s 7 of the Family Provisions Act 1982 for provision to be made out of the estate of the deceased, the late John Brookman Watson, and a declaration that certain assets distributed to the defendants be declared notional estate.

2 The plaintiffs and defendant are the children of the deceased. The deceased made a will on 9 July 1993. The provisions in the will provide, inter alia, that the defendant and the plaintiff Suzanne Margaret Cordell nee Watson (Suzanne), be entitled to reside at the premises 105 Pennant Parade, Epping for so long as they desire. Upon the last of those persons vacating the premises, it was to be sold and divided equally amongst his four children, namely, the three plaintiffs and the defendant. The will also provided that the residue of the estate be divided equally between the four children. Probate of the estate was granted on 6 August 2001, the deceased having died 27 November 1999. The inventory of property discloses that the only assets in the estate were funds in a bank account in the sum of $44,500.00. And therefore under the terms of the will out of the residue each of the beneficiaries would receive approximately $11,000.00.

3 The deceased wife predeceased him in 1993. In that year the deceased moved into a nursing home and he remained there until he died in 1999. There is evidence given by the parties that the deceased developed dementia during the period of his stay in the nursing home. During the period 1993 to 1996 Suzanne and the defendant continued to reside in the family home at Epping. In 1996 Suzanne moved out of the family home and commenced to reside with her then boyfriend who subsequently became her husband. There is conflicting evidence concerning the reason why she vacated…

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 Watson v Watson

Details

AGLC: Watson v Watson [2002] NSWSC 919
Case: [2002] NSWSC 919
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of Watson v Watson was heard in the Supreme Court of Queensland. The dispute arose between the children of a deceased individual, who sought to challenge a transfer of property by their father before his death. The father had executed an enduring power of attorney, which facilitated the transfer, and the executor of his estate, who was also the defendant, sought to enforce the transfer. The children contended that the transfer was contrary to the father's interests and sought to have it set aside.

The central legal issues the court had to resolve were whether the executor was disinterested in the transfer, and whether the transfer was contrary to the interests of the father. Additionally, the court needed to determine whether the executor could be credited with the property transferred and the implications for the notional estate. The court also had to decide on the appropriate allocation of costs between the parties.

The court found that the executor was not disinterested as they had a personal interest in the property transferred. It was determined that the transfer was indeed contrary to the interests of the father, as it diminished the assets available for distribution among the children. The executor was not entitled to a credit for the property transferred, and this needed to be considered in the calculation of the notional estate. The court awarded costs to the children, recognising the executor's failure to act impartially. The court ordered that the transfer be set aside and directed the executor to account for the property transferred. The children were also awarded costs of the proceeding.

Orders