David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654

Supreme Court New South Wales

Medium Neutral Citation: David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654 Hearing dates: 13, 18 December 2013 Decision date: 22 May 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Order for provision made Catchwords: FAMILY PROVISION AND MAINTENANCE - Adult grandson - No issue of principle - Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Verzar v Verzar [2014] NSWCA 45 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: David Wesley Fraser (Plaintiff) Joseph Simmonds and Marnie Louise Platt (Defendants) Representation: Counsel: Mr K. Morrissey (Plaintiff) Mr R. Wilson SC (Defendant) Solicitors: Frankham Family Lawyers (Plaintiff) Mr Robert Palmer (Defendants) File Number(s): 2013/37447 Publication restriction: No

Judgment

Summary 1The plaintiff is a grandson of the late Melba Katrina Rich ("Mrs Rich"). Mrs Rich died on 7 February 2012 at the age of 84. By her will made on 29 July 2010 Mrs Rich left: $10,000 to her son William James Rich; $50,000 each to William's children Melanie Rich, Gregory Rich and Lynette Missingham; $10,000 to her daughter Margaret Mildred Fraser (the plaintiff's mother); $20,000 to Margaret's daughter Marnie Louise Platt (the plaintiff's sister); and $10,000 to Margaret's son, David Wesley Fraser (the plaintiff). Mrs Rich also left $50,000 each to her three great grandchildren Michaela Platt, Alyssa Kirkham and Brianna Kirkham. In addition Mrs Rich left $5,000 to her friend and neighbour Marie Kazzi, $40,000 to the Royal North Shore Hospital, Artarmon, $20,000 to the Children's Hospital, Westmead and $20,000 to the Guide Dogs NSW/ACT. The residue of her estate was left to Marnie Louise Platt. Probate was granted on 13 September 2012. 2Without disrespect, I shall refer to the parties and above beneficiaries by their given names. They are the only eligible beneficiaries of the estate. 3The defendants Joseph Simmonds and Marnie are respectively the nephew and grand-daughter of Mrs Rich and the executors appointed under her will. Probate was granted to them on 13 September 2012. 4The estate comprised two properties, 52 XXXX Road, Auburn, NSW (the "Auburn property"), and 51 XXXX Street, Toowoomba, Qld (the "Queensland property"), some household furniture and approximately $8,000 in savings. The Auburn property was sold in June 2012 and the net proceeds of sale were $560,668. The deceased's estate comprises a bank account containing $521,892; $10,890 held in the defendants' solicitors trust account; and, the Queensland property valued at $150,000. The total value of Mrs Rich's estate is $682,782. 5By summons filed on 6 February 2013, David applies for provision out of his grandmother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr K. Morrissey of Counsel appeared for David. Mr R. Wilson of Senior Counsel appeared for Joseph and Marnie. The matter was heard on 13 December 2013 and on 18 December 2013 I made these orders: The Court: 1. Having found that the plaintiff, David Wesley Fraser, is an eligible person, and that inadequate provision has been made for his proper maintenance or advancement in life, orders that in addition to the sum of $10,000 referred to in Clause 3(i) (where first appearing) of the will of the late Melba Katrina Rich made on 29 July 2010 (the "Will") provision be made for him from her estate in the sum of $56,500 (the "Additional Provision"). 2. Orders that the plaintiff's costs of and incidental to these proceedings be paid out of the estate on the ordinary basis assessed as a lump sum of $35,790.00. 3. Orders that the defendants' costs of and incidental to these proceedings be paid out of the estate on the indemnity basis assessed as a lump sum of $58,903.00. 4. Orders that the costs referred to in Orders 3 and 4 be charged against and paid from the bequests in Clause 3 (where second appearing) of the Will with the balance to be a cost in the administration of the estate. 5. Order that the Additional Provision be charged against and paid from: (a) First, the balance remaining of the bequests in clause 3 (where second appearing) after compliance with Order 4; (b) Second, the bequest to Lynette Missingham as to no more than $15,000; and (c) Third the bequest to Gregory Rich as to no more than $10,000. 6. Orders that the exhibits be returned to the parties' legal representatives upon publication of the Court's reasons to be held by them or the parties in accordance with Practice Note SC Gen 18. 7. Interest on the Additional Provision is not to run if it is paid within 28 days of the date of these orders. 6These are the reasons for those orders. In addition, there is an error in Order 4, which will be corrected under the slip rule at the end of these reasons.