Robertson v McCann [2023] NSWSC 159

Supreme Court New South Wales

Medium Neutral Citation: Robertson v McCann [2023] NSWSC 159 Hearing dates: 13 – 14 February 2023 Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Equity Before: Meek J Decision: Plaintiff's claim dismissed Catchwords: SUCCESSION — Family provision — Claim by niece of deceased who with her sister went to live with the deceased and initially his mother in mid-1960s when niece was 7 years old following death of plaintiff's father — Niece remained living with the deceased for 10 years to age approximately 17 — Niece returned to live with the deceased approximately 8 years later for a period of 15 months — Subsequent ongoing close relationship with the deceased EVIDENCE — Assessment of evidence of party previously convicted of perjury SUCCESSION — Family provision — Eligibility — Eligibility not disputed nonetheless there must be some material to enliven jurisdiction — Jurisdiction cannot be conferred by consent on the Court — Requirements of membership of household and dependency SUCCESSION — Family provision — Factors warranting — Consideration of factors warranting – Plaintiff's position or status de facto akin to that of a child of the deceased SUCCESSION — Family provision — Adequacy of provision — Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life — Expressing a preference for a proposed expenditure, if the preference is soundly based, may inform what is proper maintenance or advancement for an applicant SUCCESSION — Family provision — Adequacy of provision — Reference point for assessing inadequacy of provision — Whilst plaintiff de facto akin in some respects to a child of the deceased, the deceased did not assume de jure obligations of a parent — Plaintiff in strong financial position with unencumbered house and other financial resources totalling approximately $1.6M — Plaintiff has minimal quantifiable financial needs — Plaintiff unable to point to any particular item whether by form of maintenance or advancement in life unable to be met out of existing resources — Such fact not conclusive or decisive of dismissal of claim nor is lack of financial need to be elided with adequacy of provision but nonetheless a significant fact in assessing adequacy of provision SUCCESSION – Strong competing claim of defendant (plaintiff's son and deceased's grandnephew) who lived with deceased in remaining years of his life to retain provision to him of residential property gifted under Will — Defendant provided care for deceased particularly in later years — Defendant reliant on deceased for accommodation Legislation Cited: Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Cases Cited: Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) Bladwell v Davis [2004] NSWCA 170 Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Chisak v Presot [2022] NSWCA 100 Churton v Christian (1988) 13 NSWLR 241 Dulhunty v Dewhirst [2005] NSWSC 350 Georgopoulos v Tsiokanis [2022] NSWSC 563 Gorton v Parkes (1989) 17 NSWLR 1 Kingsland v McIndoe [1989] VR 273 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Mallitt v Gow [2022] NSWSC 1012 Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep) Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep) Petrohilos v Hunter (1991) 25 NSWLR 343 Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 Porthouse v Bridge [2007] NSWSC 686 R v Moore; ex parte Australian Workers' Union (1976) 11 ALR 449 Re Fulop (deceased) (1987) 8 NSWLR 679 Robinson v Tame [1994] NSWCA 266 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Scott v Scott [2021] NSWSC 1619 Scott v Scott [2022] NSWCA 182 Sgro v Thompson [2017] NSWCA 326 Shymko v Lach [2022] NSWSC 1096 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 Strang v Steiner [2019] NSWCA 143 Yee v Yee [2017] NSWCA 305 Texts Cited: Bible - New Revised Standard Version, Anglicised Heydon JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Category: Principal judgment Parties: Julie Linda Robertson (Plaintiff) Jason McCann as Executor of the Estate of Raymond Leslie Smith (Defendant) Representation: Counsel: I Davidson SC (Plaintiff) C Wood SC (Defendant)