HUGHES v HUGHES [1989] NSWCA 101

HUGHES v HUGHES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HOPE, SAMUELS and MEAGHER JJA 6 June 1989, 6 June 1989

[1989] NSWCA 101 Testator's Family Maintenance — Family Provision Act — Rights of an Adult Child

Hope, Samuels and Meagher JJA In this matter the appellant is a nephew and theexecutor of the testator who died aged eighty-eight years on 16 August 1985, leaving an estate which in the circumstances at the date of hearing approximated $500,000.

The respondent is a daughter and the only child of the testator. She was born on 15 February 1925. She left school at the age of fifteen years in 1940. After ten years she left for overseas and returned in 1952. She left a second time for overseas in 1954. In 1959 she returned and she left a third and final time in 1964.

During the ten years after she left school and the two periods between her first trip overseas and her second trip overseas and between the second trip and the third trip she stayed at home and contributed to the family business in the normal way expected of a dutiful daughter. At the date of the hearing, therefore, she was a woman aged about sixty-four years. She was in indifferent health, suffering from both asthma and arthritis, neither of which will diminish in intensity in future. She had about a twenty year life expectancy and she was living in a very small room in a precarious way as licensee of a tenant, that room only being capable of access by walking up five flights of stairs.

She told his Honour she wanted in future to have a house about eighty miles out of New York, modestly furnished, and a motor car. In the period from 1964 until the date of hearing she was employed principally in New York in a clerical job with the United Nations Organisations at an apparently modest salary. She is now not in any employment, though occasionally she does odd jobs to make ends meet.