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Wright v Burg

Wright v Burg

Case [2018] NSWSC 595 7 May 2018

Family Provision

Succession Act 2006 (NSW)

s 59 of the Succession Act 2006 (NSW)

Family Provision Orders

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Wright v Burg [2018] NSWSC 595
Hearing dates: 23 and 24 November 2017
Date of orders: 07 May 2018
Decision date: 07 May 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Pursuant to Succession Act 2006 (NSW) s 59, order that:
(a)   the first plaintiff receive a lump sum of $50,000 out of the estate of the deceased; and
(b)   the second plaintiff receive a lump sum of $100,000 out of the estate of the deceased.
(2)   Order that, unless any party makes an application for a different costs order, the plaintiffs’ costs of the proceedings, calculated on the ordinary basis, and the defendant’s costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased.

Catchwords: SUCCCESSION – family provision – where deceased left her estate wholly to one adult son – no provision made in will for other two adult children – whether provision should be made under s 59 of the Succession Act 2006 (NSW) in favour of other children – relevance of promises made by deceased or arrangement contemplated by deceased – less than full and frank disclosure by beneficiary of the estate – appropriate approach to balancing needs of beneficiary and applicants in context of a small estate – family provision orders made
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW) Ch 3, ss 57, 59, 60
Cases Cited: Ahmad v Ahmad [2002] NSWSC 579
Collings v Vakas [2006] NSWSC 393
Foye v Foye [2008] NSWSC 1305
Gersbach v Blake [2011] NSWSC 368
Harrisson v Skinner [2013] NSWSC 736
In re Allen (deceased); Allen v Manchester [1922] NZLR 218
In the Estate of the late Anthony Marras [2014] NSWSC 915
Kembrey v Cuskelly [2008] NSWSC 262
Larkin v Leech-Larkin [2017] NSWSC 1418
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Re the Will of Gilbert (1946) 46 SR (NSW) 318
Saba v Saba [2016] NSWSC 1576
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Singh v Singh [2015] NSWSC 1457
Varis v Varis [2012] NSWSC 1553
Category: Principal judgment
Parties: Carmen Marie Wright (First Plaintiff)
Carl Henry Burg (Second Plaintiff)
Andrew Joseph Burg (Defendant)
Representation:
Counsel:
V Hartstein (Plaintiffs)
D Roberts (Defendant)
Solicitors:
Armstrongs Solicitors Pty Ltd (Plaintiffs)
Turnbull Hill Lawyers (Defendant)

File Number(s): 2017/00129557
Publication restriction: Nil

Judgment

HER HONOUR: In this matter two of the three adult children of the deceased (Elva Marie Burg) have sought an order for provision out of the deceased’s estate and/or notional estate. The application is made pursuant to s 59 of the Succession Act 2006 (NSW) (the Act). The defendant is the third (and youngest) of the deceased’s children and the sole executor of her estate (his co-executor, the first plaintiff, having renounced probate). The defendant has put his own financial circumstances in issue in the proceedings.

Background

The deceased died on 14 October 2016 at the…

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 Wright v Burg

Details

AGLC: Wright v Burg [2018] NSWSC 595
Case: [2018] NSWSC 595
Decision Date: 07 May 2018

CaseChat Overview and Summary

The proceedings were between Wright and Burg, with Wright being the applicant and Burg the respondent. Wright sought family provision orders under section 59 of the Succession Act 2006 (NSW) following the death of their mother, Burg. Burg had left her estate to one of her three adult children, excluding the other two, Wright and another sibling. The applicants argued that their mother had made promises or arrangements that would have entitled them to a share of the estate, and that the sole beneficiary had not fully disclosed all the estate's assets. The central issue for the court was whether the applicants were entitled to a provision from the estate, given the deceased's apparent intentions and the disclosure issues.

The court considered whether the deceased had indeed made promises or arrangements that would justify a provision to the applicants. It examined the nature and extent of any such promises, as well as the circumstances under which they were made. The court also assessed the relevance of the less than full and frank disclosure by the sole beneficiary, which could affect the applicants' ability to challenge the will effectively. Furthermore, the court had to determine the appropriate approach to balancing the needs of the sole beneficiary and the applicants, especially considering the relatively small size of the estate. The court weighed the deceased's intentions, the fairness of the distribution, and the applicants' demonstrated needs.

The court found that the deceased had made promises or arrangements that suggested an intention to provide for the applicants. It also concluded that the sole beneficiary had not fully disclosed the estate's assets, which impacted the applicants' ability to challenge the will. In balancing the needs of the parties, the court emphasised the importance of the deceased's intentions and the fairness of the estate distribution. Given these factors and the relatively small size of the estate, the court made family provision orders in favour of the applicants, requiring the sole beneficiary to make payments to them. This decision ensured that the deceased's intentions were honoured and that the applicants received a fair share of the estate.

Orders