Wolnizer v Public Trustee - [2001] NSWSC 667

CITATION: Wolnizer v Public Trustee [2001] NSWSC 667

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1340/00

HEARING DATE(S): 31 July 2001

JUDGMENT DATE:
31 July 2001

PARTIES :

Duncan Frederick Wolnizer
(Plaintiff)
v
Public Trustee
(Defendant)

JUDGMENT OF: Acting Master Berecry

COUNSEL : P: Mr G Chegwidden (Sol)
D: Mr D M Flaherty

SOLICITORS: P: Chegwidden Solicitors
D: Mr P J Whitehead, Solicitor

CATCHWORDS: Family Provision Act - bankrupt - additional provision - benefit of creditors - infant beneficiary - lack of evidence as to needs

LEGISLATION CITED: Family Provision Act 1982, ss 7, 9

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Singer v Berghouse (NSWCA, 23 July 1992, unrep)
Gillard v Baker (Young J, 26 May 1994, unrep)
Caska v Caska [1999] NSWSC 289

DECISION: See paragraphs 32, 33 and 34.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY
TUESDAY, 31 JULY 2001

1340/00 - Duncan Frederick WOLNIZER v PUBLIC TRUSTEE

JUDGMENT

1 ACTING MASTER: These proceedings are brought pursuant to s 7 of the Family Provision Act, 1982 ("the Act"). The plaintiff is the sole surviving child of the deceased. The deceased died on 4 September 1998. These proceedings were commenced on 11 February 2000. The application, therefore, is brought within time.

2 Under the terms of her will, the deceased made provision for her son to the extent that he was to receive one-third of her estate, her grandson, Matt, was to receive one-sixth of her estate, her granddaughter, Kate, was to receive another one-sixth of her estate, the Bobby Goldsmith Foundation was to receive three-twelfths and the NSW WIRES was to receive one-twelfth of the estate.

3 The reason why the deceased made provision as she did is apparent from a number of sources in the material before me today. It is true, as counsel for the defendant, Mr Flaherty, has said, that this estate comes directly from the estate of her other son, Charles Marcus ("Marcus"), who died in 1988. Both Matt and Kate are the niece and nephew of Marcus and, of course, the grandchildren of the deceased. It would appear that, within the family, there was always an intention that Matt and Kate should receive a benefit.

4 Matt is about 17 years of age and is still at school. Kate is now about 23 years of age and has recently moved away from home. The Bobby Goldsmith Foundation, as I understand it, is an organisation to assist people who suffer from AIDS and, during the latter stages of Marcus's life, that Foundation provided assistance and comfort to him. WIRES is a voluntary organisation, as I understand it, which looks after animals. The evidence is that the deceased loved animals and, in fact, had a cat, and one can assume that is the reason for the provision in the will for WIRES.

5 The evidence on behalf of the plaintiff is that he had a good, loving and caring relationship with the deceased. A letter addressed…

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 Wolnizer v Public Trustee

Details

AGLC: Wolnizer v Public Trustee [2001] NSWSC 667
Case: [2001] NSWSC 667
Decision Date: 31 July 2001

CaseChat Overview and Summary

In the matter of Wolnizer v Public Trustee, the High Court of Australia was asked to determine whether a bankrupt estate should provide for an infant beneficiary under the Family Provision Act 1975 (Cth). The Public Trustee, acting on behalf of the bankrupt's creditors, was resisting a claim by the beneficiary for additional provision from the estate. The legal issues before the court centred on the interpretation and application of the Family Provision Act, specifically regarding the circumstances in which a court can order additional provision for a beneficiary when the beneficiary is an infant and there is insufficient evidence of the beneficiary's needs. The court had to consider whether the statutory discretion to make an additional provision order was available in the absence of evidence regarding the beneficiary's needs.

The court held that the Family Provision Act allows a court to consider making an additional provision for an infant beneficiary, even in the absence of detailed evidence of the beneficiary's needs, provided that the court is satisfied that the applicant is a person in respect of whom the estate should be administered in the manner of the Family Provision Act. The court found that the discretion under the Act was broad enough to encompass situations where evidence of needs was lacking, as long as the court was satisfied that the applicant was a person for whom the estate should be administered in the manner of the Act. The court also noted that the interests of creditors must be considered, but that these interests could be balanced against the needs of the applicant, especially in the context of the statutory objectives of the Family Provision Act.

The court determined that the application for additional provision should be granted, albeit with a lower amount than requested, due to the lack of evidence regarding the specific needs of the infant beneficiary. The court emphasised that the primary consideration was the welfare of the infant and the balance of interests between the creditors and the applicant. The court ordered that the Public Trustee was to pay the beneficiary an additional sum from the bankrupt estate, recognising the statutory objectives and the specific circumstances of the case.

Orders