O'Donnell v O'Donnell

• Jurisdiction: Australian Capital Territory
• Judge: Crowe AJ
• Judgment Date: 08 November 2019
• Court: Supreme Court of ACT
• Docket Number: File Number: SC 278 of 2019
• Date: 08 November 2019

[2019] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Crowe AJ

File Number: SC 278 of 2019

Kalpana O'Donnell

(Plaintiff)

and

Jamie Francis John O'Donnell

(First Defendant)

Vanessa Alicia Channon

(Second Defendant)

Laura Elspeth O'Donnell

(Third Defendant)

Ashley Grace O'Donnell

(Fourth Defendant)

Evenlong Pty Ltd

(Fifth Defendant)

Duboti Pty Limited

(Sixth Defendant)

Representation:

Counsel

L Ellison SC & L Nurpuri (Plaintiff)

I Coleman SC & M Pringle (Defendants)

Cases Cited:

Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey[2016] NSWSC 159

Bateman v Fairfax Media Publications Pty Ltd & ors[2013] ACTSC 78, 8 ACTLR 13

BHP Billiton Limited v Schultz[2004] HCA 61; 221 CLR 400

British American Tobacco Australia Services Ltd v Laurie[2009] NSWSC 83

Hitchcock v Pratt[2010] NSWSC 1508

Paris King Investments P/L v Rayhill[2006] NSWSC 403

Re Wakim; Ex parte McNally[1999] HCA 27; 198 CLR 511

Taylor v Farrugia[2009] NSWSC 801

Valceski v Valceski[2007] NSWSC 440; 70 NSWLR 36

Young v Lalic[2006] NSWSC 18

Legislation Cited:

Court Procedure Act 2004 (ACT) s 5A

Domicile Act 1982 (Cth) ss 3, 10

Family Provision Act 1969 (ACT) s 8

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) paras 5, 9

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ss 4, 5

Succession Act 2006 (NSW) ss 59, 60, 63, 64, 88 Part 3.3

PRACTICE AND PROCEDURE — CROSS-VESTING LEGISLATION — Application to transfer in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) — whether a claim under the Family Provision Act 1969 (ACT) should be transferred to NSW — where domicile in issue — where proceedings also commenced in NSW seeking orders under the Succession Act 2006 (NSW) — where a potential notional estate in existence — determination in accordance with the “interest of justice” — proceedings transferred to the NSW Supreme Court

Decision:

See [69]

Crowe AJ

1 The late Garry Francis O'Donnell (the Deceased) died in Canberra on 26 November 2018, aged 67 years. He left five adult children. For convenience only, and meaning no disrespect, I will refer to them by their first names. They are Jaimie, Vanessa, Laura, Ashley and Simon. By his last will made on 18 August 2015 the Deceased appointed Jaimie, Vanessa, Laura and Ashley as his executors and left his estate to be divided equally among the five children. No provision was made for the plaintiff.

2 In late 2012, the plaintiff and the Deceased met and formed a relationship. They started living together in January 2013 and were married in Las Vegas in the United States on 9 May 2013. The plaintiff had been working as a public servant at a senior level. She had been on leave for some time and was due to return in 2014. She says that the Deceased persuaded her to give up work so that they could spend more time together.

3 The plaintiff and the Deceased lived an expensive lifestyle involving considerable travel, purchase of luxury goods and fine dining. The plaintiff says that the Deceased provided her with “spending money” in cash of approximately $3,000 per week. From time to time he also gave her other gifts of money and jewellery.

4 On 27 August 2015, the Deceased signed a statutory declaration in which he explained why he had decided not to leave the plaintiff anything in his will. He stated that it was his belief that the plaintiff would inherit considerable amounts from her parents (whom he understood to be wealthy). He saw her as financially secure and having no need to benefit from his estate.

5 The Deceased and the plaintiff remained together until the former's death. However, he had a number of serious health problems in his final years. The plaintiff says that she was required to provide assistance to the Deceased from time to time due to his health issues. The plaintiff claims that she was wholly dependent on the Deceased at the time of his death.

6 On 22 March 2019, Probate was granted to the executors by this Court. The estimated gross value of the estate was just over $10.62M, and the net value was $6.46M. According to the inventory filed with the Probate application, there were no assets held, or liabilities owed, outside the ACT.

7 On 17 April 2019, the plaintiff commenced proceedings in the NSW Supreme Court seeking an order pursuant to s 59 of the Succession Act 2006 (NSW) ( Succession Act). The executors were named as defendants. I was informed from the bar table that Evenlong Pty Ltd and Duboti Pty Ltd had been added as defendants by consent. Section 59 of the Succession Act relevantly provides:

59 When family provision order may be made

• (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

  • (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, 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 out 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.

  Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.

8 The matters which the Court may take into account in deciding eligibility, whether to make an order, and if so, the contents of any such order are set out in sub-s 60(2) of the Succession Act:

60 Matters to be considered by Court

• (2) The following matters may be considered by the Court:

  • (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

  • (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

  • (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

  • (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

  • (e) if the applicant is cohabiting with another person – the financial circumstances of the other person,

  • (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

  • (g) the age of the applicant when the application is being considered,

  • (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

  • (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

  • (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

  • (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

  • (l) whether any other person is liable to support the applicant,

  • (m) the character and conduct of the applicant before and after the date of the death of the deceased person,

  • (n) the conduct of any other person before and after the date of the death of the deceased person,

  • (o) any relevant Aboriginal or Torres Strait Islander customary law,

  • (p) 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.

9 Sub-section 63(5) allows the Court to make a family provision order out of property not forming part of the estate of the deceased person if it is a designated part of the “notional estate” of that person under Pt 3.3 of the Act. I will return to the notional estate concept below.

10 Section 64 of the Succession Act is also important here. It provides:

64 Orders may affect property outside jurisdiction

A family provision order may be made in respect of property...