MacGREGOR v HUNTER [1994] NSWCA 189

Macgregor vy HUNTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY, SHELLER JJA 8 March 1994, 17 March 1994

[1994] NSWCA 189

John Neven MacGregor died on 23 July 1989 leaving a will dated 13 February 1989. In his will the deceased left his estate (comprised of a house at 6 George Street, Brooklyn with an estimated value $180,000 and $10,180.57 in a bank account) to his wife, Olive MacGregor. It also provided that the respondent, Amelda Florence Hunter, who was his de facto wife from 1965 until the date of his death, was to be allowed to remain in the house during her active life.

The respondent applied for relief in the form of an order under the Family Provision Act 1982, and it was common ground that under s6(1) she was an eligible person to do so. It was found that the respondent and the deceased had both purchased a property in about 1966 at 4 George Street, Brooklyn; the property at 6 George Street, Brooklyn had been purchased in about 1967 in the deceased's name alone because of a requirement of the mortgagee. The respondent had contributed to the mortgage payments and shared other household expenses and general expenditure with the deceased.

At the date of the hearing, the respondent was an aged pensioner nearly eighty years old and the amenities of the Brooklyn area were insufficient for her needs; she was neither capable of maintaining the Brooklyn property herself, nor did she have the means to purchase a smaller home or home unit. Master Gressier held that whether the respondent had a life estate or a lesser interest in the house, the interest was inadequate to provide for the respondent's proper maintenance and advancement in life.

The master weighed up what he saw as the competing claims of the respondent and Mrs MacGregor and, taking into account what the respondent would need as she became older among other things, decided that her proper maintenance required that she be given the house at Brooklyn absolutely in lieu of the provision made for her in the deceased's will.