Catchwords:
PROPERTY – Where the husband died after separation and before the parties’ property had been divided – Where the husband executed a new will and nominated his son as the beneficiary of his superannuation and insurance policies – Where the husband received an insurance payment before his death and gave part of the funds to his son – Where the son received payments from the husband’s insurance policies and superannuation funds after the husband’s death – Where the wife seeks these payments be “added back” – The superannuation and remaining insurance proceeds should be notionally included in the asset pool – Where the asset pool was otherwise largely agreed but there was some dispute about various items – Where the parties agreed contributions were equal up to separation – The wife’s claim that she made a greater contribution post-separation because of payment of joint expenses fails – The wife made a slightly greater post-separation contribution in the form of superannuation – Where it was the husband’s illness and death which resulted in the insurance proceeds becoming available – Where the insurance policies were obtained on the advice of a financial planner engaged jointly by the husband and wife – The husband made the greater contribution to the insurance proceeds – The s 75(2) factors warrant an adjustment to the wife – Just and equitable outcome identified – Orders not made pending receipt of further submissions about findings made contrary to the position put at trial by both parties.
Legislation:
Family Law Act 1975 (Cth), s 75(2), s 79, s 80(1), s 85A, s 90AE, s 90MT(1), s 106B
Category: Reportable
Representation:
Counsel:
Applicant: Dr Dickey QC
First Respondent : Mr Hedges
Second Respondent : Dr Dickey QC

Solicitors:
Applicant: Hearty & Tam
First Respondent : Klimek & Co
Second Respondent : James Legal Consultants

Case(s) referred to in judgment(s):
Bevan & Bevan (2013) FLC 93-545
Erdem & Ozsoy (2012) 272 FLR 16
Ferguson and Ferguson (1978) FLC 90-500
Hickey & Hickey and Attorney-General of Australia (2003) FLC 93-143
Khademollah v Khademollah (2000) 159 FLR 42
Martin & Newton (2011) FLC 93-490
Miller & Miller [2009] FamCAFC 121
Norman & Norman [2010] FamCAFC 66
Omacini & Omacini (2005) FLC 93-218
Stanford v Stanford (2012) 247 CLR 108
Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156
Van der Linden & Kordell [2010] FamCAFC 157
Yates & Yates [2012] FamCAFC 138

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Dennis Yeates] (“the husband”) and [Jane Yeates] (“the wife”) lived together for nearly 16…

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 Yeates (as executor for Mr Yeates) & Yeates

Details

AGLC: Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117
Case: [2013] FCWA 117
Decision Date: 20 DECEMBER 2013

CaseChat Overview and Summary

The case involves a dispute between Yeates (as executor for the estate of Mr Yeates) and Yeates over the distribution of assets following the husband's death. The husband and wife had separated and the property division had not been finalised when the husband passed away. The husband had executed a new will, naming his son as the beneficiary of his superannuation and insurance policies. The wife sought to have the insurance payments and superannuation funds received by her son after the husband's death included in the asset pool for equitable distribution. The court had to determine whether these assets should be notionally included in the pool and how they should be divided, considering the contributions made by both parties and the circumstances surrounding the husband's death.

The legal issues centred on the inclusion of the superannuation and insurance proceeds in the asset pool for equitable division. The court also needed to resolve disputes over the contributions made by each party post-separation and the impact of the husband's illness and death on the availability of the insurance proceeds. Another issue was the husband's greater contribution to the insurance policies, which were obtained with joint advice from a financial planner. The court considered these factors under section 75(2) of the relevant legislation to achieve a just and equitable outcome.

The court ruled that the superannuation and remaining insurance proceeds should be notionally included in the asset pool. While the parties had largely agreed on the asset pool, there were disputes over specific items. The court found that the wife's claim for a greater post-separation contribution was not substantiated, as she had only slightly more in superannuation contributions than the husband. The husband's illness and subsequent death led to the insurance proceeds becoming available, and since the husband made the greater contribution to these policies, he should be credited for that amount. The court considered the overall contributions and circumstances and determined that the wife should receive an adjustment under section 75(2) to achieve a just and equitable outcome.

Pending further submissions from the parties regarding certain findings contrary to their trial positions, the court did not make final orders at this stage.

Orders