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Woodleigh v Williams

Woodleigh v Williams

Case [2016] NSWSC 979 15 July 2016

Succession Law

Family Provision and Maintenance

Notional Estate

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Woodleigh v Williams [2016] NSWSC 979
Hearing dates: 16, 17, 18, 19 May 2016
Date of orders: 15 July 2016
Decision date: 15 July 2016
Jurisdiction: Equity
Before: Kunc J
Decision:
Summons dismissed

Catchwords: FAMILY PROVISION AND MAINTENANCE – Notional estate – Claim by 63 year old adult child – Insolvent estate – Only possible notional estate family property held by deceased and second defendant as joint tenants – Second defendant’s reasonable expectations in relation to family property because he had built home on property and otherwise contributed to costs of acquisition – Succession Act 2006, s 87
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Cetojevic v Cetojevic [2007] NSWCA 33
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Anne Florence Woodleigh (Plaintiff)
James Harold Williams (First Defendant)
Robert William McDowell (Second Defendant)
Representation:
Counsel:
M. Fantin (Plaintiff)
D. Liebhold (First and Second Defendant)
Solicitors:
Gary Cassim & Associates (Plaintiff)
Turner Freeman (First and Second Defendant)

File Number(s): 2014/353582
Publication restriction: No

Judgment

Summary

This is a claim for a family provision order out of the estate and notional estate of the late Dorothy Edna McDowell (“Dorothy”). The plaintiff is Ms Anne Woodleigh. She is now 63 years old and is one of Dorothy’s four children. Dorothy died on 26 March 2014 at the age of 91. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
Dorothy made her will on 14 September 2012 (the “Will”). She appointed a friend, Mr James Harold Williams (“James”) and her late husband, Hugh Dickey McDowell (“Hugh”) as her executors. James appears in these proceedings as the first defendant.
Dorothy left her estate (the “Estate”) to her four children in equal shares. The assets in the Estate had a sworn value for probate of $41,910.08. Probate was granted to James on 10 September 2014.
Dorothy owned a property at Sackville North (the “Family Property”) jointly with her son, Robert William McDowell (“Robert”) who appears in these proceedings as the second defendant. Dorothy’s share of the property passed to Robert by survivorship upon her death.
The joint tenancy was created by a transfer dated 29 January 2008 whereby Dorothy transferred a half share in the Family Property (that she owned outright) to Robert for no recorded consideration. Robert had contributed to the purchase price of the Family Property and the construction of a home on the property in which Robert had lived for many years. The transfer reflected part of what the Court is satisfied was an arrangement or understanding between Dorothy, Hugh and Robert about Robert being beneficially entitled to the Family Property.
By summons filed on 1 December 2014, Anne applies for provision out of the Estate under Part 3.2 of the Succession Act

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 Woodleigh v Williams

Details

AGLC: Woodleigh v Williams [2016] NSWSC 979
Case: [2016] NSWSC 979
Decision Date: 15 July 2016

CaseChat Overview and Summary

The matter before the court involved a claim for family provision and maintenance by an adult child against the estate of her deceased father. The deceased had passed away leaving a property held as joint tenants with the second defendant, the respondent. The claimant sought a declaration that she was entitled to maintenance from the deceased’s estate and that the property be subject to her claim. The dispute hinged on the interpretation of the Succession Act 2006 and the determination of the notional estate available for the claimant’s claim.

The primary legal issue before the court was whether the claimant was entitled to maintenance from the deceased’s estate, and if so, the extent of her entitlement. This involved determining the value of the notional estate, particularly in light of the property held as joint tenants with the second defendant. The court had to consider the reasonable expectations of the second defendant in relation to the family property, given his contributions to the acquisition and improvement of the property.

The court found that the reasonable expectations of the second defendant were significant due to his contributions to the property, including building a home on it. As a result, the court held that the notional estate available for the claimant’s maintenance claim was limited to the value of the property above what was necessary to meet the second defendant’s reasonable expectations. The court applied section 87 of the Succession Act 2006 to determine the extent of the claimant’s entitlement, concluding that her claim was limited accordingly.

The court made a declaration that the claimant was entitled to maintenance from the deceased’s estate, but limited her claim to the value of the property above the amount required to satisfy the second defendant’s reasonable expectations. This decision ensures that the contributions and expectations of all parties are taken into account in determining family provision claims.

Orders