HANSON v THE PUBLIC TRUSTEE [1991] NSWCA 142

HANSON v THE PUBLIC TRUSTEE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 15 July 1991, 15 July 1991 [1991] NSWCA 142

FAMILY PROVISION ACT — circumstances considered — exercise of discretion to refuse relief to plaintiff in whose favour an order would have been made if size of estate permitted — size of estate such that to make an order would have unjustly deprived beneficiary of what had been left to her by testatrix in proper discharge of moral obligation.

Priestley JA When she died in 1987 at the age of ninety-two, the late Mrs Hodgson, the Testatrix, left a small estate and two surviving children, a daughter, whom I will call the beneficiary, born in 1919, and a son, whom I will call the plaintiff, born in 1922. Her estate was small. By her will she gave her cottage at Woy Woy to the beneficiary, a legacy of $3,000 to a grandson, and the residue of her estate to the plaintiff and his wife.

The plaintiff brought proceedings under the Family Provision Act which came before Master Windeyer, who dismissed his application. Both before the Master and in this court the case was dealt with on the footing that for practical purposes the only asset in the estate for distribution amongst those entitled under the will was the cottage at Woy Woy. According to the executor's affidavit this was valued at $60,000 when the testatrix died. When the matter was before the Master in October 1989 he recorded that the value of the cottage was then said to be $110,000 to $115,000.

The Master's factual findings were not in dispute in the appeal. They are sufficiently set out in his reasons. I will only mention those of them necessary to explain my opinion. At the date of death of the testatrix and since, both the beneficiary and the plaintiff were and are in poor health. The beneficiary had lived with the testatrix since 1983. The Master, incidentally, noted that the testatrix had made her last will before the beneficiary agreed to do this. The beneficiary and her husband had dissolved their marriage some time before.