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Wilson v Wright; Wilson v Wright

Wilson v Wright; Wilson v Wright

Case [2024] NSWSC 519 7 May 2024

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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
Evans v Levy [2011] NSWCA 125
Lodin v Lodin [2017] NSWCA 327
Page v Page [2016] NSWSC 1218
Page v Page [2017] NSWCA 141
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
Watton v MacTaggart [2020] NSWSC 1233
Williamson v Williamson [2011] NSWSC 228

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

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

The deceased died on 13 August 2022. At the time of his death, the deceased and the plaintiffs’ mother…

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 Wright; Wilson v Wright

Details

AGLC: Wilson v Wright; Wilson v Wright [2024] NSWSC 519
Case: [2024] NSWSC 519
Decision Date: 07 May 2024

CaseChat Overview and Summary

The dispute arose between the deceased, Mr Wright, and his two adult step-children, the plaintiffs, Wilson. The matter was heard in the Supreme Court of New South Wales. The plaintiffs sought family provision from the deceased's estate, claiming that Mr Wright had acted as a parental figure for most of their childhood. However, the relationship became estranged after the deceased was accused of sexually abusing the plaintiffs, an accusation that was ultimately dismissed at trial. The plaintiffs argued that the estrangement should not preclude the court from considering their claim, and that the deceased had a moral obligation to provide for them.

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