White v Tait - [2022] NSWSC 460

Supreme Court

New South Wales

Medium Neutral Citation: White v Tait [2022] NSWSC 460
Hearing dates: 11 April 2022
Date of orders: 11 April 2022
Decision date: 11 April 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [40]

Catchwords:
SUCCESSION – procedure – deceased estate – family provision claim by plaintiff excluded from will – plaintiff seeks leave to bring separate proceedings on behalf of estate to claw back funds received by beneficiaries before deceased’s death – Uniform Civil Procedure Rules 2005 (NSW), r 7.10 – leave refused

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW), sch 2, cl 4
Succession Act 2006 (NSW), ss 65, 80
Uniform Civil Procedure Rules 2005 (NSW), r 7.10

Cases Cited:
Brunninghausen v Glavanics (1999) 46 NSWLR 538
Butcher v Balog [2017] NSWSC 1409

Category: Procedural rulings
Parties: Anne Elizabeth White (Plaintiff)
Peter Lloyd Tait (First Defendant)
Catherine Mary Weaver (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiff)
S Hill (Defendants)
Solicitors:
CharterLaw Legal Pty Limited (Plaintiff)
Russell Kelly & Associates (Defendants)

File Number(s): 2021/280005
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript and annotated; issued 14 April 2022

Two sets of proceedings are before the Court, each of which concerns the estate of the late Margaret Therese Tait who died in April 2020. The deceased was born in May 1930 and so was 89 years old when she died. Her husband, William Thomas Tait, predeceased her, dying in January 2005. Together they had three children: Peter Lloyd Tait, born in June 1961; Catherine Mary Weaver (née Tait and formerly Sedgwick), born in December 1963; and Anne Elizabeth White (née Tait), born in March 1967. Without disrespect and for convenience, I will refer to the members of the deceased’s family by their given names.
The deceased made what proved to be her last Will in August 2010 at the age of 80. She appointed her son Peter and her daughter Catherine as her executors and left the whole of her estate to them in equal shares. She left nothing to her youngest child, Anne. The deceased and Anne had been estranged for a long period. The last time Anne spoke to her mother (or to her siblings) was in 2007. There is no challenge to the deceased’s testamentary capacity at the time she made her Will.
The deceased's estate following her death was estimated by Peter and Catherine, in their application for probate, as being worth $700,000. Of that, Peter and Catherine have paid out $300,000 each to themselves, towards their entitlements under the Will.
Anne is the plaintiff in both of the proceedings before the Court. The first was commenced by her in March 2021. In those proceedings, Anne seeks an order for family provision in her favour under Chapter 3 of the Succession Act 2006. As the executors of the deceased’s estate, Peter and Catherine are named as the defendants. I will refer to these proceedings as the “family provision proceedings.”
The second set of proceedings was commenced…

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 White v Tait

Details

AGLC: White v Tait [2022] NSWSC 460
Case: [2022] NSWSC 460
Decision Date: 11 April 2022

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, White, for leave to bring separate proceedings on behalf of the deceased’s estate to claw back funds received by the beneficiaries prior to the deceased’s death. The plaintiff, who was excluded from the will, sought to challenge the validity of the will under the Family Provision Act 1982 (NSW) and to recover funds distributed to the defendants under the will. The defendants were the executors of the deceased’s estate, as well as the primary beneficiaries of the will. The court had to decide whether the plaintiff could bring separate proceedings on behalf of the deceased’s estate under the Uniform Civil Procedure Rules 2005 (NSW), rule 7.10.

The court considered whether the plaintiff had standing to bring separate proceedings on behalf of the deceased’s estate. The court noted that the plaintiff was not the personal representative of the deceased’s estate and that the defendants had already been appointed as executors. The court held that the plaintiff did not have the necessary standing to bring separate proceedings on behalf of the deceased’s estate, and that the appropriate course of action was for the plaintiff to bring a family provision claim under the Family Provision Act. The court also noted that the plaintiff had not provided sufficient evidence to demonstrate that the defendants had acted improperly or that the will was invalid.

The court refused the plaintiff’s application for leave to bring separate proceedings on behalf of the deceased’s estate. The court held that the plaintiff did not have standing to bring such proceedings, and that the appropriate course of action was for the plaintiff to bring a family provision claim under the Family Provision Act. The court further held that the plaintiff had not provided sufficient evidence to demonstrate that the defendants had acted improperly or that the will was invalid. As a result, the court dismissed the plaintiff’s application and made no orders.

Orders