DREDGE v TURNER and ANOR [1997] NSWCA 96

DREDGE v TURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 17 October 1997, 17 October 1997

[1997] NSWCA 96

FAMILY PROVISION — provision for adult daughter — provision of accommodation

The appellant was the adult daughter of the deceased. The deceased left a legacy of $20,000 to the appellant and his other children and left the remainder of the estate to his widow. The nett value of the estate was approximately $1,167,000.

The appellant, who had been divorced, lived in Brisbane in rented accommodation with her daughter. She earned her own living but had no assets apart from a car and household effects. The Master found that an appropriate house in the area would cost, with expenses, $155,000. The Master awarded her an additional $130,000. The widow had substantial property of her own apart from her interest in the estate.

HELD: per Handley JA, Mason P agreeing, Meagher JA dissenting, allowing the appeal: (1) Per Handley JA and Mason P agreeing, the Master fell into error in awarding an amount that would be inadequate to provide a house for the daughter. Proper provision from an estate of this size should enable the daughter to purchase a house without having to borrow and leave her with some capital; (2) Per Meagher JA, no error had been shown in the exercise of the discretion by the Master, as counsel for the applicant had conceded at trial that the sum of the legacy under the will and the amount awarded by the Master was adequate to buy a house for the applicant.

Meagher JA This is an appeal by a daughter against the alleged inadequacy of an order made by Master Macready in an application under the Family Provisions Act for an order out of the estate of the late Geoffrey William Turner who died on 9 August 1993, aged 70 years.

The applicant was the daughter of Mr Turner. Mr Turner had married twice. His first wife died on 3 November 1967. He then remarried his second wife Mary Horsley Turner. Of the first marriage there were three issues. The applicant, Pamela Annette Dredge, a son Geoffrey Russell Turner and another son Graham Turner. Mrs Dredge is the applicant, Geoffrey Russell Turner, with his mother, are the executors of the estate. The third brother, Graham Turner, predeceased his father.