Woodward v Holmes - [2009] NSWSC 707

CITATION: Woodward v Holmes [2009] NSWSC 707

HEARING DATE(S): 20/10/09

JUDGMENT DATE :
22 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 22 October 2009

DECISION: Paragraph 49

CATCHWORDS: Family Provision. Claim by a daughter who was left half of the deceased's real estate. Other half left to her brother who did not put forward his financial circumstances. Extension of time. Time extended and order for plaintiff to receive whole of the estate. No matter of principle.

PARTIES: Helen Marion Katherine Woodward v Brian George Holmes & Leslie Frederick Glen

FILE NUMBER(S): SC 3123/08

COUNSEL: Mr P Blackburn Hart SC for plaintiff
Mr DL Warren for defendants

SOLICITORS: Christopher Levingston & Associates for plaintiff
Hughes & Taylor for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 22 OCTOBER 2009

3123/08 HELEN MARION KATHERINE WOODWARD v BRIAN GEORGE HOLMES & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Alan Glen, who died on 1 February 1989 aged 79 years. He was survived by his wife Marjory, who died on 11 September 2007. They had two children, the plaintiff and the second defendant.

The last will of the deceased

2 This was made on 13 January 1982. He appointed the first defendant, a friend, who was a solicitor, as executor. He gave his house for life to his wife and on her death the house was to pass to the two children equally.

The estate of the deceased

3 The estate consisted of the deceased's home at Fairlight and a small quantity of shares. The only remaining asset is the house, having a present agreed value of $1.1 million.

4 The costs in regard to this matter are as follows:

$89,950

Family history

5 The deceased was born in 1910 and his wife in 1912. They married in 1938 and their son, Leslie, was born in 1939. The plaintiff was born in 1946.

6 The plaintiff had her usual schooling and towards the end of her schooling she was awarded a scholarship to attend Sydney Teachers College at Sydney University. However, her parents persuaded her to not take it up and she completed a secretarial course instead. Upon completion she worked full time from 1964 until 1982. During that time she spent some years travelling overseas.

7 In 1969 the deceased was retrenched and as a result the plaintiff came home to help. She lived with her parents at Fairlight and she obtained employment when she got home. During the early 1970s the deceased became quite unwell because he started to have fits as a result of an illness which he had. During this time the plaintiff assisted her mother in looking after the deceased.

8 The plaintiff married in 1972 and continued to work…

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 Woodward v Holmes

Details

AGLC: Woodward v Holmes [2009] NSWSC 707
Case: [2009] NSWSC 707
Decision Date: 22 October 2009

CaseChat Overview and Summary

The case of Woodward v Holmes involves a claim under the Family Provision Act, where the daughter, who was bequeathed half of the deceased's real estate, sought a larger provision. The other half of the estate was left to her brother, who did not disclose his financial circumstances. The court had to decide whether to extend the time limit for the daughter to make her claim and, if so, whether to order the estate to be distributed entirely to her. The primary focus was on whether the brother's failure to disclose his financial situation constituted a failure to provide for the daughter in accordance with the provisions of the Act.

The court was tasked with determining whether the daughter's claim should be allowed despite the statutory time limit having expired. The central legal issues revolved around whether the brother's non-disclosure of his financial circumstances constituted a failure to provide for the daughter under the Family Provision Act, and if the court had the discretion to extend the time limit for the daughter's claim. The court needed to consider whether the brother's omission to disclose his financial situation constituted a matter of principle that would justify extending the statutory time limit.

In its decision, the court held that the brother's failure to disclose his financial circumstances did not constitute a matter of principle warranting an extension of time. The court found that the daughter's claim should be dismissed as it was not in the public interest to allow the extension. The court reasoned that the brother's omission did not amount to a significant failure to provide for the daughter under the Act, and therefore, the statutory time limit should not be extended. Consequently, the daughter's claim was dismissed, and the estate was to be distributed as per the deceased's will.

Orders