Estate of the Late Violet Eugenie Harrigan - Cowmey v Whibley [2012] NSWSC 291

Estate of the Late Violet Eugenie Harrigan - Cowmey v Whibley [2012] NSWSC 291

The motion was dismissed because the Court was not persuaded that evidence of the financial and material circumstances of the next of kin of the late George Whibley had no potential relevance to Ms Cowmey's family provision application. Given the breadth of s 60(2), especially s 60(2)(p), and the possibility that persons beneficially entitled through Mr Whibley's estate may be affected by the burden of any provision order, it was inappropriate to make a binding preliminary ruling excluding the evidence before the final hearing.

Jurisdiction
Australia
Judgment Date
28 March 2012
Procedural Posture
Family Provision Application Under the Succession Act 2006 (nsw) / Interlocutory Application by Amended Notice of Motion for Declaratory Relief and Orders Excluding Evidence Before Final Hearing
Outcome
Motion dismissed.
Legal Topics
['family Provision Order' "relevance of Beneficiaries' Financial Circumstances" 'meaning of Beneficiary in S 60(2)(d) of the Succession Act 2006 (nsw)' 'preliminary Determination of Admissibility or Relevance of Evidence' 'representative Defendant for Deceased Estate']
['succession' 'evidence' 'civil Procedure'] ['family Provision Order' "relevance of Beneficiaries' Financial Circumstances" 'meaning of Beneficiary in S 60(2)(d) of the Succession Act 2006 (nsw)' 'preliminary Determination of Admissibility or Relevance of Evidence' 'representative Defendant for Deceased Estate']

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Procedural Posture

Family Provision Application Under the Succession Act 2006 (nsw) / Interlocutory Application by Amended Notice of Motion for Declaratory Relief and Orders Excluding Evidence Before Final Hearing

Legal Issues

  1. 1 ["Whether evidence of the financial resources and financial needs of persons entitled to the intestate estate of a named beneficiary under the deceased's will is irrelevant to a family provision application by another named beneficiary." "Whether the next of kin of the late George Whibley are beneficiaries of Violet Eugenie Harrigan's deceased estate for the purposes of s 60(2)(d) of the Succession Act 2006 (NSW)." 'Whether, apart from s 60(2)(d), the Court may have regard under s 60(2)(p) of the Succession Act 2006 (NSW) to the financial circumstances of persons who may be affected by the burden of a family provision order.' 'Whether it was appropriate to make a binding preliminary ruling excluding evidence in advance of the final hearing.']

Ratio Decidendi

The motion was dismissed because the Court was not persuaded that evidence of the financial and material circumstances of the next of kin of the late George Whibley had no potential relevance to Ms Cowmey's family provision application. Given the breadth of s 60(2), especially s 60(2)(p), and the possibility that persons beneficially entitled through Mr Whibley's estate may be affected by the burden of any provision order, it was inappropriate to make a binding preliminary ruling excluding the evidence before the final hearing.

Court Disposition

Motion dismissed.

Orders

  • ["The plaintiff's Amended Notice of Motion filed in Court on 23 March 2012 was dismissed." "The plaintiff was ordered to pay the defendant's costs of the motion." 'Liberty to apply to the associate within seven days if any variation was sought to the costs order.' "During the hearing, Mr Ian Whibley was joined as...