Henry v Northen [2013] NSWSC 1843

Supreme Court New South Wales

Medium Neutral Citation: Henry v Northen [2013] NSWSC 1843 Hearing dates: 31 October 2013 Decision date: 11 December 2013 Jurisdiction: Equity Division Before: Darke J Decision: Family provision order for lump sum of $150,000. Parties to bring in Short Minutes. Catchwords: SUCCESSION - family provision - no provision made by testator for only child - reconciliation between testator and plaintiff following period of estrangement - evidence of financial circumstances incomplete - inferences to be drawn from available evidence - failure by plaintiff to comply with taxation obligations - small estate - order for payment of lump sum Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Succession Act 2006 Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Collings v Vakas [2006] NSWSC 393 Doshen v Pedisich [2013] NSWSC 1507 Peters v Salmon [2013] NSWSC 953 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Category: Principal judgment Parties: Susan Margaret Henry (Plaintiff) Marcia Dawn Northen (Defendant) Representation: Counsel: M Pringle (Plaintiff) RD Marshall with H Durack (Defendant) Solicitors: Rosemary Long Lawyer (Plaintiff) Leanne White Solicitor (Defendant) File Number(s): SC: 2013/113028 Publication restriction: Nil

Judgment

Introduction 1The plaintiff, by a Summons filed on 12 April 2013, seeks a family provision order in relation to the estate of her late father, Alan George Henry, under s 59 of the Succession Act 2006 ("the Act"). 2The plaintiff's late father (hereafter referred to as the deceased) died on 19 April 2012 as a result of injuries he received in an assault which took place in January 2012. A grant of probate in respect of the deceased's will dated 17 March 2011 was made in favour of the defendant. The defendant, who was not related to the deceased and was described in his will as "my friend", is the sole beneficiary entitled to take under the will, she having survived the deceased by more than 30 days. 3No provision was made under the will in favour of the plaintiff, who is the only child of the deceased. The deceased had been married to the plaintiff's mother for many years. However, they separated in 2005 and were divorced in 2007. At the time of his death the deceased was neither married nor in a de facto relationship, and he had no dependants. 4The estate left by the deceased is a relatively small one. After the payment of various debts the gross distributable estate was estimated by the defendant to worth approximately $350,000. The principal asset of the estate is a property in Gregson Street, Gloucester which has an estimated value of $210,000. Affidavits were filed and read which included estimates of the likely costs of the proceedings. On the assumption that the defendant's costs are paid out of the estate on the indemnity basis and the plaintiff's costs are paid out of the estate on the ordinary basis, the evidence established that the estimated net value of the distributable estate was in the order of $225,000. There is no issue in this case concerning any notional estate of the deceased. 5The proceedings were commenced within the time stipulated by s 58(2) of the Act. There is also no issue that the plaintiff is an eligible person within the meaning of s 57(1)(c) of the Act. Section 59 of the Act relevantly provides: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and ... (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 6For the purposes of determining whether to make a family provision order and the nature of any such order, the Court may consider the various matters set out in s 60(2) of the Act which include "any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." The task of the Court in addressing the questions posed by ss 59(1) and 59(2) of the Act has been described as a "broad evaluative task" which should be guided by prevailing community standards (see Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [12] - [16] per Allsop P). 7Ms M Pringle of counsel, who appeared for the plaintiff, read affidavits sworn by the plaintiff (on 5 April 2013, 13 September 2013 and 17 October 2013) and affidavits sworn by Mr Frederick Harle (on 12 September 2013) and Ms Patricia Climpson (on 17 September 2013). Mr R D Marshall of counsel who appeared with Mr H Durack of counsel for the defendant, read two affidavits sworn by the defendant on 21 June 2013, and a further affidavit sworn by the defendant on 29 October 2013. Both parties also read affidavits concerning the legal costs of the proceedings. 8Most of the evidence adduced was uncontroversial, or largely so. The main area of controversy concerned the extent to which both the plaintiff and the defendant adduced evidence as to their financial circumstances. There was also some dispute concerning statements which the deceased allegedly made about the plaintiff and his relationship with her, and also about the defendant. Those matters may be put to one side for the moment. What follows is a statement of what appear to me to be the salient facts of the matter.