Woods v cimIno - [2013] NSWSC 642

Supreme Court

New South Wales

Medium Neutral Citation: WOODS v cimIno [2013] NSWSC 642
Hearing dates: 20 and 21 May 2013
Decision date: 21 May 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Orders for family provision relief granted

Catchwords: SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision-widow's claim for relief - related claim by children of the marriage - whether any (and, if so, what) relief should be granted
Legislation Cited: Succession Act 2006 NSW
Civil Procedure Act 2005 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at [12]-[16] and [34]-[36]
Luciano v Rosenblum (1985) 2 NSWLR 65 Spata v Spata [2011] NSWSC 1221 at [83]-[86]
Category: Principal judgment
Parties: Margaret Therese Woods (Plaintiff)
Monique Therese Woods and
Bridget Michaela Woods (Plaintiffs)
John Paul Cimino and
Elizabeth Mary Woods (Defendants)
Representation: AG Todd (Plaintiffs)
CP Locke (Defendants)
Cradock Murray & Neumann (Plaintiffs)
LG Parker & Co (Defendants)

File Number(s): 2012/138765 2012/138795

Judgment - EX TEMPORE (revised)

These proceedings, in which claims for family provision relief are made under chapter 3 of the Succession Act 2006 NSW, demonstrate the difficulties inherent in accommodating the competing entitlements of the members of a deceased person's family, in a reconstructed family, in a middle class setting.

A wife of longstanding, now widowed, has to live with uncertain health and limited prospects of employment for an indefinite future. Her children of a previous marriage make no claim on their stepfather's bounty. Within the constraints of available property he has endeavoured to accommodate his widow, their two children and his three children of a previous marriage.

All five children whose circumstances bear upon the outcome to these proceedings are young adults; rich in potential, but not bankable treasure. One of the three children of the deceased's first marriage (Anna, married to the first defendant) may be materially better off than the others; but, if so, not by so much as to deny her entitlement to benefit from her father's bounty.

John Joseph Woods ("the deceased") died on 30 June 2011, aged 69 years. He left a will dated 1 March 2010, probate of which was granted to the defendants on 5 January 2012.

He left an estate which, aside from personal property, comprised a one-half share, as a tenant-in-common with his wife (now widow), in the matrimonial home in Cormac Street, Balgowlah. That property has been valued, now, at $1.58 million. The deceased's share is valued at half that: $790,000.

He also left a trust fund (the proceeds of a self-managed superannuation fund) of approximately $900,000 (subject to an outstanding tax liability) available for designation as notional estate. It is presently held on trust for the same beneficiaries, and in the same shares, as are entitled to the residuary estate of the deceased under his will.

The pool of assets available for consideration of claims for relief under chapter 3 of the Succession Act is of the order of $1.69 million, subject to the outstanding tax liability…

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 Woods v cimIno

Details

AGLC: Woods v cimIno [2013] NSWSC 642
Case: [2013] NSWSC 642
Decision Date: 21 May 2013

CaseChat Overview and Summary

The case of Woods v Cimino was heard in the Supreme Court of New South Wales. The widow, Woods, sought relief under the Family Provision Act 1975, claiming that her late husband, Cimino, had failed to make sufficient provision for her. In addition, the children of the marriage also claimed relief under the same Act, seeking a review of the deceased's estate distribution. The court was required to determine whether the testator had indeed failed to make sufficient provision for the applicant and, if so, what relief should be granted.

The court examined the legal principles governing family provision claims under the Act, focusing on the discretionary nature of the relief and the factors to be considered in determining what constitutes "insufficient provision." The court considered the financial circumstances of the widow and children, the size and nature of the estate, and the testator's intentions and obligations towards the applicants. The court also considered the evidence provided by both parties regarding the testator's financial capacity and the adequacy of the provision made.

After reviewing the evidence and considering the relevant legal principles, the court concluded that the testator had failed to make sufficient provision for the widow and children. The court found that the widow, who had been married to the deceased for a substantial period, had a legitimate expectation of receiving support from the estate. The children, who were dependent on the deceased for their upbringing and education, also had a claim for relief. The court ordered that the estate be adjusted to provide for the widow and children, ensuring that their reasonable needs were met. The final orders reflected the court's assessment of the appropriate relief to be granted, balancing the testator's intentions with the needs of the applicants.

Orders