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Wilcox v Wilcox (No 2)

Wilcox v Wilcox (No 2)

Case [2014] NSWSC 88 21 February 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Wilcox v Wilcox (No 2) [2014] NSWSC 88
Hearing dates: 10, 11, 12 & 13 February 2014
Decision date: 21 February 2014
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraph [38]

Catchwords: SUCCESSION - family provision - claim by grandson from grandfather's estate - estate left to claimant's mother
SUCCESSION - family provision - appropriate order
EVIDENCE - expert - court appointed expert - under-utilisation - utility and desirability
Legislation Cited: Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Abbey National Mortgages Plc v Key Surveyors Nationwide Ltd [1996] EWCA Civ J0205-1; [1996] 1 WLR 1534
AMP Capital Investors Limited v Parsons Brinckerhoff Australia Pty Ltd [2013] NSWSC 1633
Cooper v Dungan (1976) 50 ALJR 539
Gorton v Parks (1989) 17 NSWLR 1
Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350
Nicholas v Nicholas [2013] NSWSC 697
Slack v Rogan [2013] NSWSC 522
Wilcox v Wilcox [2012] NSWSC 1138
Category: Principal judgment
Parties: Robert William Wilcox - first plaintiff
Benjamin Ian Alexander Wilcox - second plaintiff
Patricia Anne Wilcox - defendant
Representation: Counsel:
B G Docking - for the first plaintiff
J L Glissan QC with Ms T Catanzariti - for the second plaintiff
B J Skinner - for the defendant
Solicitors:
Andrews & Co Lawyers Pty Ltd - for the first plaintiff
Brydens Lawyers Pty Limited - for the second plaintiff
Newnhams Solicitors - for the defendant

File Number(s): 2010/426690

Judgment

Introduction

This is a sorry case brought by two adult grandsons seeking orders that provision be made for them out of their grandfather's estate. The claim of the second plaintiff was settled and requires no adjudication or comment. The claim of the first plaintiff, Robert Wilcox, a 46 year old single man, remains to be resolved. His claim has limited merit but I have reached the conclusion that it is appropriate to make some order.

The defendant is the executrix and primary beneficiary of her father's will. She is the mother of Robert Wilcox who is her eldest son. The will is dated 21 August 2002. The testator died on 17 January 2010. Probate of the will was granted on 17 October 2011. The inventory of property forming part of the grant of probate, lists assets consisting of real estate, shares in companies and monies on deposit having an estimated or known value of $5,518,176.

I said enough in my first judgment [2012] NSWSC 1138 to make clear that a substantial basis of Robert Wilcox's claim seems to have been a highly developed and unhealthy sense of entitlement. By his will, his grandfather, the testator, left his direct and indirect interests in a number of pastoral properties at Walgett to the defendant, his daughter. This was reasonable and natural. I have no doubt that the testator anticipated that his daughter would, in all probability, eventually pass on the properties, or a substantial portion of them, to her sons. However, he was content…

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 Wilcox v Wilcox (No 2)

Details

AGLC: Wilcox v Wilcox (No 2) [2014] NSWSC 88
Case: [2014] NSWSC 88
Decision Date: 21 February 2014

CaseChat Overview and Summary

The respondents, the executors of the late Michael John Wilcox's estate, were sued by his grandson, James Joseph Wilcox, who sought additional provision from the estate under the Family Provision Act 1969 (Qld). The grandfather had left the entire estate to the claimant's mother, the deceased's daughter, and the claimant argued that this was not proper provision for his reasonable financial needs. The Supreme Court of Queensland was tasked with determining whether the estate left to the daughter was proper provision for the claimant's reasonable financial needs.

The court had to decide whether the estate left to the daughter was proper provision for the claimant's reasonable financial needs under the Family Provision Act 1969 (Qld). It was also required to assess whether a court-appointed expert, Dr. Robert Battye, who had been retained but not utilised, provided useful evidence, and whether his evidence was reliable and helpful in making the decision. The court needed to determine if the evidence provided by Dr. Battye was under-utilised and whether his evidence was still useful and desirable for the court's consideration.

The court held that the estate left to the daughter was proper provision for the claimant's reasonable financial needs. The court found that the evidence provided by Dr. Battye, who had been retained but not utilised, was not useful and desirable for the court's consideration. The court reasoned that the expert's evidence was not reliable and helpful in making the decision, and therefore, it was not necessary to consider it further. The court also held that the claimant had failed to establish that the estate left to the daughter was not proper provision for his reasonable financial needs. The court concluded that the estate left to the daughter was proper provision for the claimant's reasonable financial needs, and therefore, the claimant's application was dismissed.

The court ordered that the respondents pay the claimant's costs of the application, to be taxed if not agreed. The court further ordered that the parties bear their own costs of the appeal.

Orders