Behrens v Behrens [2020] NSWSC 1566

Supreme Court New South Wales

Medium Neutral Citation: Behrens v Behrens [2020] NSWSC 1566 Hearing dates: 24 September 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Equity - Family Provision List Before: Rein J Decision: See [24]-[26] Catchwords: SUCCESSION – Family provision – Claim by adult child for provision from the deceased's estate under Succession Act 2006 (NSW), Ch 3 – Small estate – Adult son made family provision claim against deceased mother's estate – The son had a history of violence towards family members, and had been estranged from his mother for more than 25 years before her death – The mother's will left everything to her two adult daughters (the first and second defendants) and appointed them as trustees and executors – The main asset of the mother's estate was a one fifth share in her father's estate, the principal asset of which was a property in Belfield NSW; the mother's one fifth share in her father's estate did not vest in her estate until after her death (because, in addition to her one fifth share, she was granted a life interest in the Belfield property) – the son's claim against the mother's estate was partly based on an assertion that he contributed to the value of the Belfield property, both when his grandfather owned it and when his mother had a life interest in it, although the extent and value of his contribution was contested by the second defendant and was unable to be quantified – Held: the mother was under no obligation to provide for her son in light of their 25 year estrangement and his violent history; the son's contribution to the Belfield property while his grandfather owned it was irrelevant and his contribution to the property during the term of his mother's life interest did not, in all the circumstances, create an obligation on the mother to provide for him in her will. Therefore, no family provision order was made in favour of the son and he was ordered to pay the defendants' costs. Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Burke v Burke [2014] NSWSC 1015; (2014) 13 ASTLR 294 Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313 Cachia v Hanes (1991) 23 NSWLR 304 Cachia v Hanes (1994) 179 CLR 403 Evans v Levy [2011] NSWCA 125 Keaton v Gumulak [2020] NSWSC 943 McCarthy v McCarthy [2010] NSWCA 103 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Texts Cited: Dal Pont, G. E., Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) Category: Principal judgment Parties: Reginald Behrens (Plaintiff) Monica Behrens (First Defendant) Ellen Behrens (Second Defendant) Representation: Plaintiff in person Second Defendant in person File Number(s): 2019/113022 Publication restriction: Nil