Supreme Court
New South Wales
Medium Neutral Citation: Wilson v Wright; Wilson v Wright [2024] NSWSC 519 Hearing dates: 22-23 April 2024 Date of orders: 7 May 2024 Decision date: 07 May 2024 Jurisdiction: Equity Before: Hmelnitsky J Decision: (1) Order that provision be made for the maintenance, education and advancement in life of Kimberley Renee Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $50,000.
(2) Order that provision be made for the maintenance, education and advancement in life of Kyle Thomas Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $40,000.
(3) Order that those legacies bear interest at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from (and including) 4 June 2024 if not earlier paid.
(4) Direct the parties to file and serve short submissions of no more than three pages on the question of costs on or before 21 May 2024.
Catchwords: SUCCESSION — Family provision — Claim by adult step-children of deceased — where deceased in the position of a parent of plaintiffs for most of their childhood — where deceased became estranged from plaintiffs following allegations of sexual abuse of which the deceased was found not guilty at trial —whether “factors warranting” making of application — whether deceased had moral duty to make provision for plaintiffs despite estrangement
Legislation Cited: Probate and Administration Act 1898 (NSW) s 84A
Succession Act 2006 (NSW) ss 57, 59-60
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Lodin v Lodin [2017] NSWCA 327
Papantoniou v Foundouradakis [2023] NSWSC 1374
Re Estate McNamara [2018] NSWSC 1661
Re Fulop Deceased (1987) 8 NSWLR 679
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Tarbes v Taleb [2023] NSWSC 565
Walker v Walker [1996] NSWSC 188
Category: Principal judgment Parties: In proceeding 2023/253014:
Kyle Thomas Wilson (Plaintiff)
Debra Agnes Wright (Defendant)In proceeding 2023/253014:
Kimberley Renee Wilson (Plaintiff)
Debra Agnes Wright (Defendant)Representation: Counsel:
D Flaherty (Plaintiffs)
R Tregenza (Defendant)Solicitors:
Hinde Ginges Boyd Lawyers (Plaintiffs)
Bell Lawyers (Defendant)
File Number(s): 2023/253014 and 2023/253020
JUDGMENT
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These two family provision claims, which were heard together, concern the estate of the late Adam Patrick Fornari (the deceased). The plaintiff in proceedings 2023/253020 is Kimberley Renee Wilson. The plaintiff in proceedings 2023/253014 is Ms Wilson’s brother, Kyle Thomas Wilson. The deceased was for many years their stepfather, having been in a de facto relationship with their mother for a period exceeding 20 years.
The issues in broad outline
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The deceased died on 13 August 2022. At the time of his death, the deceased and the plaintiffs’ mother…
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- AGLC
- Wilson v Wright; Wilson v Wright [2024] NSWSC 519
- Case
- [2024] NSWSC 519
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the plaintiffs had demonstrated "factors warranting" an application for family provision, and whether the deceased had a moral duty to provide for the plaintiffs despite their estrangement. The court had to consider the nature and duration of the relationship, the circumstances that led to the estrangement, and the impact of the estrangement on the plaintiffs' financial circumstances. The court also needed to determine whether the plaintiffs' estrangement from the deceased should be a decisive factor in denying their claim for family provision.
The court found that the plaintiffs had not demonstrated "factors warranting" an application for family provision. While the plaintiffs' relationship with the deceased was significant, the court determined that the estrangement and the nature of the relationship did not warrant an order for family provision. The court held that the estrangement was a relevant factor, and the plaintiffs' estrangement from the deceased, despite the allegations of abuse being found not guilty, significantly impacted their ability to make a compelling case. The court concluded that the deceased did not have a moral duty to make provision for the plaintiffs given the circumstances.
The court ordered that the plaintiffs' claims for family provision be dismissed. The court found that the estrangement and the lack of demonstrated need were critical factors in denying the plaintiffs' application. The court emphasised that while the relationship between the deceased and the plaintiffs was significant, the estrangement and the circumstances leading to it were decisive in this case. The court did not make any order for family provision to the plaintiffs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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