GALLAHAR v SMITH [1990] NSWCA 64

GALLAHAR v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLY and MEAGHER JJA 6 March 1990, 6 March 1990 [1990] NSWCA 64

Share of daughter increased and of son reduced — Within discretion of Master — No question of principle.

Mahoney JA The deceased, Mrs Vera Rose Gallahar, died on 12 August 1985. By her will she appointed as her legal personal representatives the defendants in this proceeding. She disposed of her estate by giving it to her personal representatives upon trust to sell, call in and convert the estate into money to pay all her debts, funeral and testamentary expenses and duties and other charges and then to hold the balance upon the following trust:

"(a) UPON TRUST to pay the sum of TEN THOUSAND DOLLARS ($10,000.00) UNTO my daughter the said VALMA ROSE PRETTY

(b) UPON TRUST to pay the sum of TEN THOUSAND DOLLARS ($10,000.00) UNTO my daughter SHIRLEY MERYLE SMITH of 10 Pritchard Place Peakhurst

(c) UPON TRUST to pay the sum of TEN THOUSAND DOLLARS ($10,000.00) UNTO my daughter MARLENE ELIZABETH LEE of Birdsell Avenue Condell Park

(d) UPON TRUST to pay the sum of FIVE THOUSAND DOLLARS ($5,000.00) UNTO my daughter VERA OLIVIA HANNIGAN of 5 Collins Street Kyogle and

(e) UPON TRUST to pay the balance thereafter UNTO my son the said SIDNEY ALFRED GALLAHAR."

An application was made to the court by Mrs Smith, one of the daughters of the deceased under the Family Provision Act. An application by another daughter Mrs Vera Hannigan was made and was dismissed by the Master. The claim of the daughter Mrs Vera Hannigan, therefore need not be directly considered in the proceeding.

The Master found that the deceased owed the relevant moral duty to each of her children - I use the term moral duty in the sense in which it has been used in the authorities. Having considered the circumstances he varied the disposition made by the late Mrs Gallahar, by increasing the share of the estate to which Mrs Smith was to be entitled from $10,000 to, as it was described, one-fifth of the estate. I take the Master to have meant by this one-fifth of the net estate after payment of the debt, funeral and testamentary expenses and other matters referred to in the will.