Wilson v Public Trustee - [2006] NSWSC 32

CITATION: Wilson v Public Trustee [2006] NSWSC 32

HEARING DATE(S): 23 January 2006

JUDGMENT DATE :
8 February 2006

JURISDICTION: Equity

JUDGMENT OF: Associate Justice McLaughlin at 1

DECISION: 1. I order that the summons be dismissed. 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. 3. I order that the Defendant be entitled to retain from the assets of the late Clifford Wilson (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the foregoing costs which he may recover from the Plaintiff. 4. The exhibits may be returned.

CATCHWORDS: Succession. - Family Provision. - Claim by former wife of Deceased. - Plaintiff and Deceased separated more than forty years before death of Deceased. - They did not divorce until almost twenty years after separation. - Plaintiff neither sought nor received any property settlement or maintenance from Deceased. - Nature and extent of subsequent contact between Plaintiff and Deceased. - Obligation upon Plaintiff to provide as fully and as frankly as possible all information concerning her financial and material circumstances. - Failure of Plaintiff to disclose a subsequent marriage and benefit received by her on death of her second husband. - Lack of frankness in evidence of Plaintiff. - Whether there are factors which warrant the making of the application. - Whether, in any event, Plaintiff has established an entitlement to an order for provision. - Competing claims of beneficiaries named in will.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Dijkhuijs v Barclay (1988) 13 NSWLR 639
O’Shaughnessy v Mantle (1986) 7 NSWLR 142
Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 79 ALJR 731

PARTIES: Edith Joyce Wilson (Plaintiff)
Public Trustee (Defendant)

FILE NUMBER(S): SC 5467 of 2004

COUNSEL: M. Bridger (Plaintiff)
L. Ellison SC (Defendant)

SOLICITORS: Bilbie Dan (Plaintiff)
R. Field (Defendant)

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

WEDNESDAY, 8 FEBRUARY 2006

5467/04 EDITH WILSON –V- PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 7 October 2004 Edith Wilson claims an order for provision out of the estate of the late Clifford Wilson (to whom I shall refer as “the Deceased”), who died on 7 April 2004, aged 79.

3 The Plaintiff (who was born on 28 August 1927, and who is presently aged 78) married the Deceased on 12 July 1952. They separated in February 1962. According to the Plaintiff, she and the Deceased divorced in 1981. No children were born to the marriage of the Plaintiff and the Deceased.

4 The Deceased left a will dated 30 September 2003, probate whereof was on 28 May 2004 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). By that will the Deceased gave legacies…

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.

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Details

Case: [2006] NSWSC 32
Decision Date: 8 February 2006

CaseChat Overview and Summary

In Wilson v Public Trustee, the dispute arose between the deceased's former wife, the plaintiff, and the public trustee who was administering the deceased's estate. The plaintiff sought provision from the estate under the Family Provision Act, claiming that the deceased had failed to make adequate provision for her. The case was heard in the Supreme Court of South Australia. The primary issue the court needed to address was whether the plaintiff was entitled to a provision from the estate, given the long period of separation and the nature of their relationship post-separation. The court also had to consider the plaintiff's obligation to provide full and frank disclosure of her financial circumstances and whether her failure to do so warranted denying her claim.

The court examined the nature of the relationship between the plaintiff and the deceased, noting the lengthy period of separation before the divorce and the lack of any financial support or property settlement between them. The court emphasised the importance of the plaintiff's duty to disclose all relevant information about her financial circumstances fully and frankly. The plaintiff's failure to disclose a subsequent marriage and the benefits received from her second husband's estate was seen as a significant omission. The court found that the plaintiff's evidence lacked candour, which further undermined her claim. Given these findings, the court concluded that there were no factors warranting the making of an application for provision from the estate. The plaintiff's claim was dismissed.

The court further considered the competing claims of other beneficiaries named in the deceased's will. It found that there was no basis to disturb the deceased's testamentary intentions as expressed in the will. The final orders of the court were that the plaintiff's application for provision from the estate was dismissed and that the public trustee was directed to continue administering the estate in accordance with the terms of the deceased's will.

Orders