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Wise v Barry

Wise v Barry

Case [2018] NSWSC 1726 14 November 2018

Executors and administrators

Family Provision

Unconscionable conduct

Succession Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726
Hearing dates: 15 – 16 October 2018
Date of orders: 14 November 2018
Decision date: 14 November 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
Parties to provide the Court with Short Minutes of Order reflecting these reasons. The proceedings will then be adjourned for any argument on costs.

Catchwords:
SUCCESSION — Executors and administrators — Proceedings against co-executor — Removal sought of the co-executor by another executor to both of whom Probate had been granted — Significant delay in the administration of estate — Defendant executor has not vacated the property which comprises the primary asset of the estate — Possession of real property sought — Occupation fee or mesne profits also sought in amended Summons but not pursued following conclusion of the proceedings
SUCCESSION — FAMILY PROVISION — Claim for a family provision order by Defendant in Cross-Summons — No dispute as to the Defendant’s eligibility as a person with whom the deceased was living in a de facto relationship at the time of her death — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Whether conscious and deliberate decision made by Defendant in not commencing proceedings within time — Unconscionable conduct of Defendant — Prejudice suffered by Plaintiff and other beneficiary due to delay in each receiving his entitlement under Will — Competing claim of the Plaintiff and another beneficiary, each of whom is an adult child of the deceased — Small estate in value — Provision made by deceased to Defendant in Will of half of the value of the real estate — Court not satisfied there was sufficient cause shown for the application being made out of time — Conclusion in part on the basis that the Court would not, in any event, have made a family provision order in favour of the Cross-Claimant
Legislation Cited: Civil Procedure Act 2005 (NSW)
Justice Legislation Amendment Act 2018 No 4 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Bates v Messner (1967) 67 SR (NSW) 187
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chu v Ngar [2015] NSWSC 1505
Cringle v Cringle [2018] NSWSC 1558
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Harkness v Harkness (No 2) [2012] NSWSC 35
Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286
Moore v Randall [2012]…

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 Wise v Barry

Details

AGLC: Wise v Barry [2018] NSWSC 1726
Case: [2018] NSWSC 1726
Decision Date: 14 November 2018

CaseChat Overview and Summary

The matter of Wise v Barry involved a dispute between two co-executors of a deceased estate, both of whom had been granted probate. The Plaintiff sought the removal of the Defendant as co-executor due to significant delays in the administration of the estate. Additionally, the Plaintiff sought possession of the primary asset of the estate, the real property, which the Defendant had not vacated. Although an amended summons sought an occupation fee or mesne profits, this claim was not pursued following the conclusion of the proceedings.

The court was tasked with determining whether the Defendant's delay in commencing proceedings was justified, and whether there was sufficient cause to allow the application to be made out of time. The court also had to consider whether the Defendant's delay constituted unconscionable conduct and whether it had prejudiced the Plaintiff and other beneficiaries. Furthermore, the court needed to assess the validity of the Defendant's claim for a family provision order, given that the proceedings were not commenced within the prescribed time and there was no consent to an extension of time.

The court found that the Defendant had not shown sufficient cause for the delay in commencing proceedings, and that the delay was a conscious and deliberate decision on the Defendant's part. The court also determined that the Defendant's conduct was unconscionable and had prejudiced the Plaintiff and other beneficiaries by delaying their receipt of entitlements under the Will. However, the court was not satisfied that there was sufficient cause to allow the family provision application to be made out of time. The court concluded that, even if there had been sufficient cause, it would not have made a family provision order in favour of the Defendant, given the small value of the estate and the provision made to the Defendant in the Will. The court ordered the Defendant to vacate the property and removed the Defendant as co-executor of the estate.

Orders