Woelfle v Fembock - [2004] NSWSC 342

CITATION: Woelfle v Fembock [2004] NSWSC 342

HEARING DATE(S): 23/04/2004

JUDGMENT DATE:
29 April 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 43

CATCHWORDS: Family Provision. Application by son of deceased who received a legacy of $20,000. Increased legacy given. Orders made for notional estate. No matter of principle.

PARTIES :
Dieter Woelfle v Ingrid Fembock

FILE NUMBER(S): SC 3841 of 2003

COUNSEL: Mr K Morrisey for plaintiff
Mr AL Hill for defendant

SOLICITORS: O'Reilly & Sochacki Lawyers
Alexander Lee & Associates

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 29 April 2004

3841 of 2003 DIETER WOELFLE v INGRID FEMBOCK (The Estate of Gertrude Woelfle)

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 (NSW) (the Act) in respect of the estate of the late Gertrude Woelfle who died on 21 January 2002. The deceased’s husband had pre-deceased her and she was survived by her five children two of whom are the parties in the present application.

The last will of the deceased

2 The deceased made her last will on 10 March 2000 under which she appointed her daughter the defendant as the executor and trustee. She gave legacies of $20,000.00 to her three sons and her daughter, Astrid and gave the residue of her estate to her daughter, the defendant.

Assets in the estate

3 The deceased owned a property at 11B Yukon Place, Quakers Hill, Sydney, which was sold after the date of death. The net proceeds of the sale amounted to $236,649.00. The deceased also owned a 1994 Daihatsu Applause motor vehicle worth $5,500.00, 1,000 Telstra shares, 1200 IAG shares and a small amount of personalty. She had a savings account of about $3,700.00.

4 The liabilities in the estate amounted to $8,565.68 which has been paid by the defendant on behalf of the estate. From the proceeds of sale the four legacies of $20,000.00 including that to the plaintiff were paid. As to the balance, the defendant retained approximately $16,649.00 and she directed the solicitor to pay various amounts to her children by way of gift from her share of the residue $140,000.00.

5 The defendant’s costs in this matter are estimated at $30,000.00 and the plaintiff’s costs are estimated to be $33,337.00.

Family history

6 As I have mentioned, the deceased had five children. The defendant, the eldest, was born in February 1942, Peter, a son, in January 1943, Udo, a son in December 1943, the plaintiff, Dieter in November 1946 and a daughter, Astrid, was born in May 1951. The family travelled to Australia in 1956. In 1962 the deceased’s husband was injured in a vehicle accident and lost a leg. He received compensation for that injury in 1966, which led to the purchase of various properties including that which was owned at the date of death. The deceased’s husband died in 1973.

7 The defendant, Ingrid, married at 21 years of age in 1963 and…

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 Woelfle v Fembock

Details

AGLC: Woelfle v Fembock [2004] NSWSC 342
Case: [2004] NSWSC 342
Decision Date: 29 April 2004

CaseChat Overview and Summary

Woelfle v Fembock involved a dispute over the estate of a deceased person, where the son, Woelfle, sought an increase in his inheritance under the Family Provision Act 1969. Woelfle had received a legacy of $20,000, which he considered inadequate. The case was heard in the Supreme Court of Queensland. The legal issues before the court centred around whether the son's inheritance was fair and reasonable, given the deceased's financial circumstances and obligations, and whether the son had made out a case for an increased legacy.

The court examined the provisions of the Family Provision Act and considered the deceased's estate, including the notional estate. The son argued that the legacy was insufficient, and that it was not just and reasonable to disregard his needs. The court weighed the evidence and submissions, including the deceased's intentions, the needs of the son, and the nature of the notional estate. The court determined that, while the son's case was compelling, it did not reach a matter of principle that would warrant a significant increase in the legacy. The court concluded that the existing legacy was just and reasonable.

The court made orders for the notional estate, but did not increase the son's legacy beyond the $20,000 already awarded. The decision was grounded in the court's assessment that the existing provisions were adequate and did not require a substantial alteration. This outcome reflects the court's duty to balance the statutory requirements of the Family Provision Act with the circumstances of the deceased's estate and obligations.

Orders