Collins v Mutton [2012] NSWSC 548

Supreme Court New South Wales

Medium Neutral Citation: Collins v Mutton [2012] NSWSC 548 Hearing dates: 16 May 2012 Decision date: 24 May 2012 Before: Hallen AsJ Decision: (i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that, in lieu of that provision, she is to receive a lump sum of $135,000 out of the estate of the deceased. (ii) The burden of provision should be borne by the residuary estate, after deducting the costs of the proceedings. (iii) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iv) The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the residuary estate of the deceased. (v) The Defendant's costs and disbursements, calculated on the indemnity basis, are to be paid out of the residuary estate of the deceased. (vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vii) Direct that a complete and legible copy of these reasons for judgment be sent by the Defendant's solicitors to each of the other residuary beneficiaries under cover of letter posted, by registered post, sent no later than 7 days from the date of the reasons for judgment being published. Catchwords: SUCCESSION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, a son of the deceased, to whom Probate of the deceased's Will was granted - No dispute that adequate and proper provision not made in Will of the deceased and that an order in favour of the Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne Legislation Cited: Family Provision Act 1982 Practice Note SC Eq 7 Probate and Administration Act 1898 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Allen (Dec'd) In re; Allen v Manchester [1922] NZLR 218 Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Clayton (dec'd), Re [1966] 1 WLR 969 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman and v Riedel [2004] ACTSC 127 Davis v Davis; Davis by Her Tutor Arnold v Davis [2012] NSWSC 201 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Fiorentini v O'Neill (NSWCA, 4 December 1998, unreported) Foley v Ellis [2008] NSWCA 288 Frey v Frey [2009] QSC 43 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Haklany v Gittany [2011] NSWSC 1549 Harrigan, Estate of the Late Violet Eugenie - Cowmey v Whibley [2012] NSWSC 291 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd (1979) 143 CLR 134 Hyatt v Covalea [2011] VSC 334 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 McKenzie v Topp [2004] VSC 90 Marks v Marks [2003] WASCA 297 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neil v Jacovou [2011] NSWSC 87 Paola v State Trustees Ltd [2012] VSC 158 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Texts Cited: Cf Davern Wright, Testator's Family Maintenance 3rd ed, 1974 Category: Principal judgment Parties: Judeth Anne Collins (Plaintiff) Gregory Victor Mutton (Defendant) Representation: Mr J Armfield (Plaintiff) Mr R Colquhoun (Defendant) Aubrey Brown Partners (Plaintiff) Cutlers The Law Firm (Defendant) File Number(s): 2011/216415