Lewis v. Lewis & Anor. [2001] NSWSC 321

New South Wales Supreme Court

CITATION : Lewis v. Lewis & Anor. [2001] NSWSC 321 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1854/99 HEARING DATE(S) : 2, 3, 4, 5 and 6 April 2001 JUDGMENT DATE : 1 May 2001

Garry John Lewis - plaintiff PARTIES : Mary Christine Lewis - 1st defendant Belinda Jane Lewis - 2nd defendant Beverley Lynette Feehan - 3rd defendant JUDGMENT OF : Hodgson J at 1

COUNSEL : Mr. R. Brender with Mr. A. Blank for plaintiff Mr. G. Lindsay SC with Mr. I. Davidson and Mr. M. Cleary for defendants SOLICITORS : Colquhoun Murphy, Braddon, ACT for plaitniff Elrington Boardman Allport, Queanbeyan for defendants CATCHWORDS : ESTOPPEL - Constructive trust - Representations as to property to be left by will - Reliance - Action to detriment - Whether non-fulfilment unconscionable, where in last 20 years of life the deceased incurs substantial additional moral obligations. - SUCCESSION - Family provision - Late application - Estate distributed - Whether 'sufficient cause' within s.16 of Family Provision Act - Whether 'special circumstances' within s.28 of the Act. LEGISLATION CITED : Family Provision Act ss.6, 16, 24-28 Legione v. Hateley (1983) 152 CLR 406 CASES CITED : Watson v. Foxman (1995) 49 NSWLR 315 Bearns v. Bearns-Hayes, Young, J., 6/5/97 DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, J.

Tuesday 1st May 2001

NO. 1854 OF 1999 LEWIS V. LEWIS & ORS.

JUDGMENT

1 The plaintiff is the son of Ken Lewis, who died on 1st September 1996. The deceased's estate comprised mainly land in the Braidwood district, worth about $1.1 million. By his last will dated 23rd August 1995, the deceased left land to the value of about $650,000.00 to his second wife Christine (the first defendant in these proceedings), land to the value of about $240,000.00 to the plaintiff, land to the value of about $101,000.00 to the daughter of his first marriage Beverley (the third defendant in these proceedings), land to the value of $95,000.00 to the only child of his second marriage Belinda (the second defendant in these proceedings), land to the value of $12,000.00 to his sister Lola Stinson, and land to the value of $10,000.00 to another sister. 2 In these proceedings, the plaintiff claims the benefit of a constructive trust entitling him to all of this land, apart from the last two parcels. In the alternative, the plaintiff claims provision under the Family Provision Act. The defendants have put on a cross-claim seeking orders for removal of caveats lodged by the plaintiff over their land, an enquiry as to damages, and, in the event that the plaintiff should obtain relief on the basis of a constructive trust, orders under the Family Provision Act.