Terrence Gregory Brazier v Valerie Elizabeth Dawson and Kenneth Brazier

Judgment 1The hearing of five proceedings commenced respectively by Mr Terrence Brazier, Ms Patricia Faint, Ms Josephine O'Brien, Mr Anthony Brazier and Mr Kenneth Brazier was listed before me for six days commencing on 30 January 2012. The parties have reached agreement as to a resolution of these five proceedings and a rectification application brought by the executor in separate proceedings and have put forward orders by consent to be made by the Court. Several of those orders could only be made if the Court were satisfied that it had jurisdiction to make them. I made those orders on 3 February 2012. This judgment indicates my reason for making those orders. 2Each of the Plaintiffs is a child of the late Henry Fletcher Brazier ("the deceased"). Each of the Plaintiffs is an eligible person under s 57(1)(c) of the Succession Act 2006 (NSW) as a child of the deceased. None of the Plaintiffs were estranged from the deceased and there is evidence that each of them provided assistance to the deceased during his lifetime in various ways. Another child of the deceased, Ms Valerie Dawson, has conduct of the defence of the proceedings as one of the executors of the Estate. 3I should make one further comment before turning to the orders that I am asked to approve. Although I have given careful consideration in respect of each of the orders to whether the jurisdiction for the order is established and whether it can properly be made, I can and should also give substantial weight to the fact that all of the parties are represented by experienced Counsel and solicitors and that there is a very significant advantage for the parties in reaching a comprehensive settlement of these matters so as to avoid the continuing costs of the proceedings. The parties and their advisers should be congratulated for reaching a settlement in a matter of considerable complexity, the continuance of which would have imposed significant additional legal costs upon the parties and the Estate. 4The first and second orders provide for the dismissal of the proceedings commenced by Mr Terrence Brazier, Mr Anthony Brazier and Mr Kenneth Brazier with no order as to the costs of the Plaintiffs in those proceedings, to the intent that each of them bear his own costs of the proceedings. I am able to make those orders by consent. 5The third and fourth orders provide that, in lieu of the provision made for Ms Josephine O'Brien under the deceased's will ("the Will"), Ms O'Brien will receive an increased monetary legacy, which is to be paid within fourteen days of these orders being made out of the assets comprised by cl 3(i) of the Will. That clause refers to monies held by the deceased in banks or other financial institutions and any superannuation entitlement. I am satisfied that I may properly make those orders for the reasons set out below. 6By Summons filed in proceedings number 297992 of 2010, Ms O'Brien had sought an order that provision be made for her maintenance, education and advancement in life under s 59 of the Succession Act out of the Estate. Section 59 of the Succession Act relevantly provides that the Court may, on an application under Pt 3.2 Div 1 of the Act, make a family provision order in relation to the estate of a deceased person, if it is satisfied that, relevantly, the person in whose favour the order is to be made is an eligible person and, at the time 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 deceased's Will. In that situation, the Court may make such order for the provision out of the deceased's estate as it thinks ought to be made for the maintenance, education or advancement in life of that person, having regard to the facts known to the Court at the time the order is made. Section 60 of the Succession Act sets out a number of matters which the Court may take into account, together with any other matter that it considers relevant, for the purposes of determining eligibility and whether to make a family provision order and the nature of that order. The factors relevant to the determination of such a claim have been comprehensively reviewed by Hallen AsJ in Andrew v Andrew [2011] NSWSC 115 and I gratefully adopt that analysis. 7The Court only considers whether to make a family provision order under s 59(2) if it is first satisfied of the inadequacy of the provision, and may then take into consideration the matters referred to in s 60(2) of the Act. That assessment involves a comparison of the provision actually made in the relevant will and the present requirements for the maintenance, education and advancement in life of the claimant: Andrew v Andrew at [33]. The question of adequacy of the provision made for the claimant is directed to the quantum of that provision. The claimant's need is relevant in determining whether adequate provision has been made for his or her proper maintenance education and advancement in life in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42]. The question whether the provision made for the claimant is proper raises wider issues, involving a consideration of all of the relevant circumstances and the competing claims upon the deceased's bounty: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114]. 8Had the proceedings not been resolved, extensive evidence was to be led in them as to Ms O'Brien's financial position and the needs of Ms O'Brien, her husband (who has provided her with financial support) and their children. I am satisfied that the deceased's Will did not make adequate provision for Ms O'Brien's proper maintenance, education and advancement in life having regard to the relatively limited provision made for her in the Will and the evidence as to her needs. I am satisfied that the order for provision contemplated by the consent orders is one that the Court can properly make having regard to the evidence, particularly in circumstances where parties who have been well represented have each consented to the making of that order. 9Paragraphs 6, 7 and 8 of the proposed orders deal with the position of Ms Patricia Faint and Ms Valerie Dawson. Ms Faint had also brought an application for provision under s 59 of the Succession Act . Ms Dawson was one of the executors and had represented the Estate in these proceedings and had not brought such an application. However, I may properly make orders in respect of the transfer of property to Ms Dawson under s 66 of the Succession Act . Order 6 provides that, in lieu of the existing provision for Ms Faint and Ms Dawson under cl 3(i) of the Will, each is to have a 50% entitlement in the balance of the assets comprised within that clause. Order 7 provides for each to have a half share entitlement to certain income and to a share of the residue of the Estate which would otherwise pass to Mr Kenneth Brazier under cl 3(l) of the Will and for the imposition of a further condition upon the devise as to Mr Kenneth Brazier under cl 3(b) and (c) of the Will which will require him to pay an additional amount to the funds constituted within cl 3(i) of the Will. Order 8 provides, consequent upon order 3 above, for the provision in the Estate that would otherwise have passed to Ms O'Brien to pass to Ms Faint and Ms Dawson in equal shares. Each of Ms Faint and Ms Dawson were, as noted above, eligible persons and I am satisfied that these orders may properly be made having regard to the nature of their claims and the benefits obtained by all parties by the comprehensive settlement of the proceedings. 10Orders 9-10 deal with the timing for payment of certain amounts under the Will and I am satisfied those orders may properly be made. Orders 11-13 deal with the payment of costs and I could make those orders simply by the consent of the parties although I am, in any event, satisfied that they are appropriate orders in the circumstances. 11The Court has also been asked to note the parties' agreement as to the matters recorded in paragraphs 14-19 of the Short Minutes of Order and I do so. 12The parties have liberty to apply on 14 days notice in accordance with paragraph 20 of the Short Minutes of Order. 13On this basis, I have made the Orders recorded in paragraphs 1-13 and 20 of the Short Minutes of order and noted the matters recorded in paragraphs 14-19 of the Short Minutes of Order.