Leverton v Predny [2024] NSWSC 1638

Supreme Court New South Wales

Medium Neutral Citation: Leverton v Predny [2024] NSWSC 1638 Hearing dates: 30 September,1 October 2024 Decision date: 19 December 2024 Jurisdiction: Equity Before: Kunc J Decision: Family provision orders made for each plaintiff Catchwords: SUCCESSION — Family provision — Claim by two adult children — Whether adequate and proper provision not made for the plaintiffs and, if so, the nature and quantum of the provision to be made Legislation Cited: Evidence Act 1995 (NSW) s 144 Succession Act 2006 (NSW) ss 59 and 60 Cases Cited: Bassett v Bassett [2021] NSWCA 320 Burke v Burke [2015] NSWCA 195 Estate MPS, deceased [2017] NSWSC 482 Ford v Simes [2009] NSWCA 351 Rada v Smith [2024] NSWSC 273 Underwood v Gaudron [2014] NSWSC 1055 Category: Principal judgment Parties: Adam Leverton (First Plaintiff) Alicia Leverton (Second Plaintiff) David Predny (First Defendant) Agnes Day (Second Defendant) Representation: Counsel: S Chapple SC (First and Second Plaintiffs) A Hill (First and Second Defendants) Solicitors: McIntyre Legal (First and Second Plaintiffs) Fowler Predny Legal (First and Second Defendants) File Number(s): 2023/237998 Publication restriction: None

JUDGMENT

Summary 1. Few, if any, families are without complex relationships, moments of strain, decisions taken by some family members bemusing others, and words spoken and deeds done that come to be regretted. Yet notwithstanding all of these issues, even difficult family relationships often remain underpinned by a shared sense of affection. All these characteristics are demonstrated by the family at the centre of this case, which also offers a sobering example of how destructive family provision proceedings can be of relationships between the protagonists. Without disrespect, I shall refer to the parties and other protagonists by their given names. 2. Adam Leverton and Alicia Leverton (the plaintiffs) are the children of Cheryl Leverton and Phillip Leverton. Adam was born in 1984 and Alicia was born in 1986. Cheryl and Phillip had married in 1982 and separated in 2013. Adam, Alicia and several members of Cheryl's family all acknowledge that Cheryl and Phillip's marriage was often an unhappy one. 3. Phillip died unexpectedly in September 2014. Phillip's final will was made on 15 November 1999, 14 years before he and Cheryl separated. That will provided for the whole of Phillip's estate to pass to Cheryl. Among other things, Phillip's will was a source of tension between Cheryl and Adam and Alicia. Both Adam and Alicia acknowledge they were surprised that their father left his entire estate to Cheryl, notwithstanding that Phillip and Cheryl had separated in 2013. Both believed that Phillip had made a later will which also included provision for them. 4. In late 2015, both Adam and Alicia commenced family provision proceedings against Cheryl in her capacity as the executor of Phillip's estate. The proceedings were settled in April 2016. Adam and Alicia each received $65,000 and $15,916.57 towards costs. Cheryl received the balance of the estate, valued at approximately $1.8 million. 5. In June 2021, Cheryl was diagnosed with breast cancer. She died on 18 August 2022. Cheryl's final will was executed on 16 August 2022. That will appointed Mr David Predny, a solicitor, and Ms Agnes Day (Cheryl's mother and Adam and Alicia's grandmother) as executors of her estate. On 1 March 2023, probate of the will was granted to Mr Predny and Agnes. 6. It was accepted by the parties that the net value of the estate was $1,596,641.39. The will made these provisions: 1. Alicia received Cheryl's jewellery. Cheryl's will also explicitly stated that "I leave no further gift to her as it is my firm intention that she not receive any further or other benefit from my estate." 2. No provision was left for Adam, clause 5 of the will stating "as it is my [Cheryl's] firm intention that he not receive any gift or other benefit from my estate". 3. $4,000 to each of Cheryl's four grandchildren (being Adam's three children and Alicia's child) 4. $5,000 to each of Cheryl's great nieces and nephews (being the children of Cheryl's sister Deborah) 5. The residue of the estate was left to Cheryl's sister, Ms Deborah Bosden. 1. Clause 7 of the will provided: I DECLARE THAT having considered the extent of my estate and my responsibility to provide for my aforesaid children I have determined to make no further provision for them in this my Will for the following reasons: 1. By his last Will and Testament their father (my late husband) left his entire estate to me. After he passed away suddenly and to my great disappointment my children challenged their father's Will and received a substantial benefit out of their father's estate which but for their claims would have gone entirely to me. This substantially reduced my entitlement to their father's estate and was contrary to his testamentary wishes that his estate should pass to me and negatively impacted on my financial security and standard of living. 2. As they have already received substantial financial benefit from the estate of my late husband, I have taken this into account in making this my Will. 3. My children have not permitted me to see my grandchildren and I have been deprived of enjoying any meaningful relationship with my grandchildren. 4. Furthermore, there has been little or no contact between my children and I for many years and there is no longer any relationship of love and affection between us. My responsibility for my children's welfare ended many years ago. In these circumstances any further gift or provision to them out of my estate would be contrary to the nature of our relationship. 1. On 26 July 2023, Adam and Alicia filed a summons seeking family provision orders pursuant to s 59 Succession Act 2006 (the Act) from Cheryl's estate. The defendants are Mr Predny and Agnes in their capacity as executors of the estate. The filing of the summons was within the 12 months after Cheryl's death in accordance with s 58 of the Act. There was no dispute that as children of the deceased, Adam and Alicia are eligible persons to seek a family provision order under the Act. 2. The hearing was efficiently conducted over two days. Mr S Chapple of Senior Counsel appeared for Adam and Alicia. Mr A Hill of Counsel appeared for the executors. 3. In opening written submissions, Mr Chapple submitted that Adam and Alicia each sought a lump sum payment of $300,000. Mr Hill provided short minutes on the second day of the hearing reflecting the executors' position that Alicia should only be provided nominal provision of $100,000 and her costs of the proceedings out of the estate, and that Adam should not receive any provision. 4. The crux of the dispute was whether Adam and Alicia should be entitled to further provision given their financial circumstances, Cheryl's clear testamentary intention not to make any provision for her children, the financial circumstances of other beneficiaries and whether the plaintiffs' relationship with their mother disentitled them from further provision. 5. For the reasons which follow, the Court has determined that Adam should receive provision of $250,000 and Alicia provision of $300,000. The Court's reasons may be summarised as: 1. In leaving neither Adam nor Alicia any financial provision, the will does not make adequate provision for either of them; 2. To the extent there was difficulty and periods of non-contact between Cheryl and her children, the underlying reasons were primarily (but not exclusively) Cheryl's volatility towards them as children and explicable tensions arising from the family provision proceedings over Phillip's estate. However, whatever criticism could be made of Adam and Alicia, it was not such as would adversely affect any amount to which they might otherwise be entitled by way of provision; and 3. Given the size of the estate, those amounts of provision would still leave a sufficient residue to respect Cheryl's testamentary intention to benefit Deborah.