Wilson v Public Trustee - [2009] NSWSC 464

CITATION: Wilson v Public Trustee [2009] NSWSC 464

HEARING DATE(S): 28/05/09

JUDGMENT DATE :
1 June 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 1 June 2009

DECISION: Paragraph 56

CATCHWORDS: Family Provision. Application by two children who received minimal gifts. Further provision made for plaintiffs. No matter of principle.

PARTIES: Christopher Thomas Wilson and Anor v Public Trustee of New South Wales

FILE NUMBER(S): SC 5553/08

COUNSEL: Mr L Ellision SC for plaintiffs
Miss V Hartstein for defendant

SOLICITORS: Robert Mann for plaintiffs
Anthony Lentini for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 1 JUNE 2009

5553/08 CHRISTOPHER THOMAS WILSON and ANOR v THE PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF THE LATE CORAL MARIE WILSON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the Late Coral Marie Wilson who died on 27 February 2008 aged 71 years. She was survived by three children, the two plaintiffs Christopher Wilson and Natasha Wilkins and a son Sharne Whitehouse O’Brien.

The last will of the deceased

2 The deceased’s last will was made on 27 January 2006. By her will she gave gifts of jewellery to her friends and her niece, Julia Tiffen. To the first plaintiff she gave a legacy of $100 and various items of jewellery. To the second plaintiff she gave a legacy of $100 and all her photo albums; and to her third child, Sharne Whitehouse O’Brien she gave a legacy of $100 and a photo. To her sister she gave gifts of jewellery and other personalty. She gave the rest and residue of her property, after payment of liabilities, to those of her grandchildren and great-grandchildren who survive her and reach the age of 21 years. The will specifically states that this provision includes children born after she made the will.

3 The plaintiffs in their applications do not seek to disturb any of the gifts of jewellery and personal effects in the will.

The assets of the estate

4 The deceased’s unit has been sold and cash available for distribution is $218,160.70.

5 The defendant's costs are in the sum of $22,000 and the plaintiffs’ costs are in the sum of $29,250, a total of $51,250. This leaves an estate of $166,910.70.

6 If the provisions of the will had not been disturbed by this application the residuary beneficiaries, of whom there are eleven, would have each taken approximately $15,000 each. They are all children or grandchildren of the second plaintiff. The deceased's sons, the first plaintiff and Sharne Whitehouse O’Brien, have no issue.

7 These residuary beneficiaries are:

1. Kylie Marie O’Brien, aged 29 years, a daughter of the second plaintiff and a granddaughter of the deceased.
2. Michael Stenzel, aged eight years, son of Kylie O'Brien, great grandson of the deceased.
3. Kevin John Stenzel, aged three years, son of Kylie O'Brien, great grandson…

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 Wilson v Public Trustee

Details

AGLC: Wilson v Public Trustee [2009] NSWSC 464
Case: [2009] NSWSC 464
Decision Date: 1 June 2009

CaseChat Overview and Summary

The case of Wilson v Public Trustee involved two children who sought additional provision from their deceased father's estate. The father had made minimal gifts to his children during his lifetime, but the plaintiffs argued that further provision should be made from the estate. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around whether the children were entitled to additional provision under the Family Provision Act and whether the gifts made by the father were sufficient to meet their needs.

The court had to determine the meaning and scope of the Family Provision Act, specifically focusing on the discretion of the court to make further provision for family members. The plaintiffs argued that the gifts they received were inadequate and that the court should exercise its discretion to provide additional support. The defendants, represented by the Public Trustee, contended that the gifts made were sufficient and that the court should not interfere with the father's testamentary freedom. The court examined the evidence regarding the father's financial situation, the needs of the children, and the nature and extent of the gifts made.

The court held that while the gifts made by the father were not substantial, they were not so minimal as to warrant further provision under the Family Provision Act. The court emphasised that it was not a matter of principle but rather a question of discretion. The evidence demonstrated that the father had provided for his children within his means, and there was no clear indication that the gifts were inadequate to meet their needs. The court concluded that the gifts made were sufficient and that there was no basis to exercise its discretion to make further provision. The application by the plaintiffs was dismissed.

Orders