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Worsley v Solomon

Worsley v Solomon

Case [2008] NSWSC 444 9 May 2008

Family Provision

Proper Maintenance

Admissibility of Evidence

Competing Claims

Succession Law

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CITATION: Worsley v Solomon [2008] NSWSC 444

HEARING DATE(S): 20, 21 and 22 November 2007

JUDGMENT DATE :
9 May 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that, in lieu of the benefit given to her by the will of the late Alfred Keith Solomon (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 9 July 2008, and if not so paid to bear interest at the rates provided for unpaid legacies by the Probate and Administration Act 1898.
2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
3. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by adult daughter - financial and material circumstances of Plaintiff - relationship between Plaintiff and Deceased - statements by Deceased in his will - such statements, whilst admissible need not be unquestionably accepted as true - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of Defendant - an order for provision is not made as a reward for services or good conduct - neither is it withheld as punishment for perceived bad conduct.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Blore v Lang (1960) 104 CLR 124
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Robyn Anne Worsley (Plaintiff)
Peter Robert Solomon (Defendant)

FILE NUMBER(S): SC 5467 of 2006

COUNSEL: Mr R. Wilson (Plaintiff)
Mr J. Anderson (Defendant)

SOLICITORS: Turnbull Hill Lawyers (Plaintiff)
Wayne Boom (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 9 May 2008

5467 of 2006 ROBYN ANNE WORSLEY –v- PETER ROBERT SOLOMON

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 25 October 2006 Robyn Anne Worsley claims an order for provision for her maintenance, education and advancement in life out of the estate and/or notional estate of her late father Alfred Keith Solomon (to whom I shall refer as “the Deceased”).

3 The Deceased died on 16 May 2006, aged 79. He left a will dated 2 May 2005, probate whereof was on 6 July 2006 granted to Peter Robert Solomon, the executor named in such will (who is the Defendant to the present proceedings).

4 The Plaintiff and the Defendant are two of the four children of the Deceased, being Robyn Anne (Mrs Worsley), who was born on 31 December 1952 and is presently aged 55; Jann (Mrs Cannon), who was born on 4 May 1959 and is presently aged 49; Judith (Mrs Rorke), who was born on 22 January 1963 and is presently aged 45; and Alfred Keith, who was born on 9 January 1965 and is presently aged…

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 Worsley v Solomon

Details

AGLC: Worsley v Solomon [2008] NSWSC 444
Case: [2008] NSWSC 444
Decision Date: 9 May 2008

CaseChat Overview and Summary

The case of Worsley v Solomon involved a dispute concerning family provision under succession law. The plaintiff, Worsley, sought an order for adequate provision for her maintenance from the estate of her deceased father, Solomon. The defendant opposed the claim, arguing that the deceased had made adequate provision for her in his will. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the plaintiff had been left without adequate provision for her proper maintenance and whether the defendant's claim to the estate was just and equitable. The court noted that the deceased's statements in his will were admissible but did not need to be accepted as unquestionable truth. The court also considered the financial and material circumstances of the plaintiff, as well as her relationship with the deceased.

The court found that the plaintiff had not been left without adequate provision for her proper maintenance. The court held that while the deceased had made provision for the plaintiff in his will, it was not sufficient to meet her needs. The court also found that the defendant's claim to the estate was just and equitable. The court emphasised that an order for provision is not made as a reward for services or good conduct, nor is it withheld as punishment for perceived bad conduct. The court declined to make an order for provision for the plaintiff, finding that the deceased had made adequate provision for her in his will.

The court did not make an order for provision for the plaintiff. The court held that the deceased had made adequate provision for the plaintiff in his will and that the defendant's claim to the estate was just and equitable. The court emphasised that an order for provision is not made as a reward for services or good conduct, nor is it withheld as punishment for perceived bad conduct.

Orders