Portis v Green [2017] NSWSC 1489

Supreme Court New South Wales

Medium Neutral Citation: Portis v Green [2017] NSWSC 1489 Hearing dates: 21 June 2017 Decision date: 01 November 2017 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Provision ordered Catchwords: SUCCESSION — family provision and maintenance — failure by testator to make sufficient provision for applicant — father disinherits only adult son to leave whole estate to a charity — whether estrangement — Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Kleinig v Neil (No 2) [1981] 2 NSWLR 532 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Sanders v Valtas [1999] NSWSC 1216 Verzar v Verzar [2014] NSWCA 45 West v Mann [2013] NSWSC 1852 Underwood v Gaudron [2014] NSWSC 1055 Category: Principal judgment Parties: Paul Shaun Portis (Plaintiff)

Stephen Michael Green (First Defendant) Christopher John Craven (Second Defendant) Representation: Counsel: J E F Brown (Plaintiff) J E Armfield (Defendants)

Solicitors: Turner Freeman (Plaintiff) A S Brown (Defendants) File Number(s): 2016/301695 Publication restriction: No

Judgment

Summary 1. The plaintiff is Paul Portis, the only surviving child of Ronald Portis ("Mr Portis"). Mr Portis died on 1 February 2016 at the age of 80. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names. 2. Mr Portis made his last will on 26 August 2013 (the "Will"). 3. The only eligible beneficiary in the estate other than Paul is Mr Portis' former wife, Gwendoline. Mr Portis and Gwendoline separated in 1979 and were divorced some time in 2011. Gwendoline has played no part in the proceedings. 4. Mr Portis' estate (the "Estate") has been converted into cash and, after allowing for the costs of these proceedings, has a distributable value of $476,688. 5. By summons filed on 10 October 2016, Paul applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr J E F Brown of Counsel appeared for Paul. Mr J E Armfield of Counsel appeared for the defendants. 6. The defendants are, respectively, the Grand Secretary and Deputy Grand Secretary for the United Grand Lodge of New South Wales and the Australian Capital Territory (the "Grand Lodge"), popularly known as the Masons. The defendants are the appointed executors of the Will. 7. Mr Portis had a close connection to the Masons, of which he had been a member since 1986. Most importantly for these proceedings, for five or six years before his death, Mr Portis had worked as the voluntary curator of the Museum of Freemasonry (the "Museum"), operated by the Museum of Masonry Foundation. 8. Under an earlier will, Mr Portis had left the entire Estate to Paul. However, after the settlement of family provision litigation involving the estate of Paul's late brother, contact between Paul and Mr Portis ceased. Mr Portis then made the Will, by which he left the entire Estate to the Museum. Mr Portis left a detailed statement (the "Statement") with the Will to record his reasons for the change in his testamentary intentions. 9. Paul's means are very modest. His marriage has recently ended and at some time in the future he and his wife will divorce. Paul is currently living in a caravan. The Court is satisfied that adequate provision has not been made for Paul under the Will. He is not responsible for the circumstances which gave rise to the cessation of contact with Mr Portis. Balancing Paul's legitimate claim on Mr Portis' testamentary bounty, the relatively small size of the Estate, and the principle of freedom of testation in circumstances where Mr Portis had a real and close connection to the Museum, the Court has concluded in the exercise of its discretion under the Act that Paul should receive provision in the amount which is the greater of $286,000 or 60% of the distributable value of the Estate.