Wright v Gibbeson - [2009] NSWSC 1367

CITATION: Wright v Gibbeson [2009] NSWSC 1367

HEARING DATE(S): 02/12/2009 and 03/12/2009

JUDGMENT DATE :
8 December 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 8 December 2009

DECISION: Paragraph 77

CATCHWORDS: Family Provision. Application by an 18 year old daughter who had little contact with deceased after age of 3 months. Order for provision varying results on intestacy to also increase provision for two other daughters of deceased.

PARTIES: Catherine Anne Wright v Helen Gibbeson

FILE NUMBER(S): SC 6191/2007

COUNSEL: Mr P Bates & Miss P White for plaintiff
Mr J Atkin for defendant

SOLICITORS: Gerard Malouf & Partners for plaintiff
Browns the Family Lawyers for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 8 DECEMBER 2009

6191/07 CATHERINE ANNE WRIGHT v HELEN GIBBESON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late John Barry who died on 22 February 2006. The deceased was survived by his widow, the defendant, a child by a former relationship, the plaintiff, and two children from his marriage.

Assets in the estate

2 The estate has been partly reduced to cash amounting to $538,185. The deceased also had a one-quarter share in a property at Hamlyn Terrace, his share being worth $110,000. These total $648,185.

3 There are debts owing on the Hamlyn Terrace property in the sum of $18,475, leaving an estate of $629,710.

4 The costs in the proceedings are substantial, in part due to changes in solicitors and in part due to additional work relating to the administration of the estate. They appear to be, on the plaintiff's part, $70,000; on the defendants part $80,000, a total of $150,000. This would leave a net estate of $479,710.

5 There is also a jointly held property at Ferndale Close, Wentworthville which was the deceased’s former matrimonial home. It passed by survivorship to his widow, the defendant. It was subject to a mortgage of $85,000 which the defendant has since paid out from the moneys to which I am about to refer.

6 The deceased had superannuation and payments were made as follows:

Distribution of the deceased’s estate

7 The deceased died intestate and accordingly his actual estate after payment of costs would pass as follows under section 61B(3) of the Probate and Administration Act 1898.

Family history

8 The deceased John Barry was born in 1954, as was his first partner Ruth Wright. In 1985 they formed a relationship and they were engaged in 1986. The plaintiff, Catherine, their daughter, was born in August 1988 and…

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 Gibbeson

Details

AGLC: Wright v Gibbeson [2009] NSWSC 1367
Case: [2009] NSWSC 1367
Decision Date: 8 December 2009

CaseChat Overview and Summary

The case of Wright v Gibbeson was heard in the Family Court of Australia. The dispute arose following the death of the father, where the 18-year-old daughter, who had minimal contact with her father post-infancy, sought a greater share of the estate. The deceased's will did not provide for her, while his other two daughters were beneficiaries. The deceased's estate was distributed according to the intestacy rules, excluding the eldest daughter from any provision.

The central legal issue before the court was whether the applicant, who had limited contact with her father, was entitled to a provision from the estate under the Family Provision Act. The court had to assess whether the deceased had made "reasonable financial provision" for the applicant, and if not, what adjustments should be made to the estate distribution to ensure "just and equitable" provision.

The court found that the deceased had not made reasonable financial provision for the eldest daughter, given her minimal contact and the absence of any testamentary or inter vivos gifts to her. The court recognised the importance of the deceased's relationship with each of his children, and while acknowledging the limited contact with the eldest daughter, considered the overall fairness of the estate distribution. The court decided to vary the intestacy provisions to ensure that the eldest daughter received a reasonable provision, adjusting the shares of the other two daughters accordingly.

The final orders of the court mandated that the estate be distributed such that the eldest daughter received a specified provision, with the shares of the other daughters adjusted to reflect this change. This decision ensured a more equitable distribution of the deceased's estate, taking into account the unique circumstances of each child's relationship with their father.

Orders