Bohen v Mitchelmore [2024] NSWSC 171

Supreme Court New South Wales

Medium Neutral Citation: Bohen v Mitchelmore [2024] NSWSC 171 Hearing dates: 5 and 6 February 2024 Date of orders: 29 February 2024 Decision date: 29 February 2024 Jurisdiction: Equity Before: Basten AJ Decision: (1) Direct that evidence in each of the probate and family provision proceedings be evidence in the other, subject to relevance. (2) Declare that provision ought be made from the estate of Caterina Felice Bohen (dec'd) in favour of her daughters, Tina Louise Bohen and Angela Marie Bohen. (3) Order that, in addition to the provision made for her in the will of the deceased dated 10 August 2016, each of Tina Louise Bohen and Angela Marie Bohen be paid one-third of the net residuary estate (after deduction of liabilities, including costs of these proceedings and the probate proceeding). (4) Order that – (a) the plaintiffs' costs of these proceedings, assessed on the ordinary basis, and (b) the costs of the executor of these proceedings, assessed on an indemnity basis, be paid from the estate. (5) Grant leave to a party who wishes to make application for a variation of these orders in light of the decision of the TelstraSuper trustee as to the distribution of the benefit payable in respect of the death of the deceased, to file a notice of motion, supported by an affidavit, within 28 days of the party receiving notice of the terms of the trustee's decision. Catchwords: SUCCESSION – family provision – claims by testator's two adult daughters – residue of estate left to testator's grandchildren – "generation skipping" – estrangement – false statement accompanying will as to reasons for excluding daughters – only competing claims those of claimants' children – primary responsibility of parents to care for children – impact of unresolved death benefit under life insurance policy Legislation Cited: Succession Act 2006 (NSW), Pt 3.2, ss 57, 59, 60, 100 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Foley v Ellis [2008] NSWCA 288 Gorton v Parks (1989) 17 NSWLR 1 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Palmer v Dolman [2005] NSWCA 361 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR (253); [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Category: Principal judgment Parties: Tina Louise Bohen (First Plaintiff) Angela Marie Bohen (Second Plaintiff) Dean Joseph Mitchelmore (Defendant) Representation: Counsel: R Bianchi (First and Second Plaintiff) J E Armfield (Defendant)