HERLIHY v LEITCH AND ANOR [1997] NSWCA 148

HERLIHY v LEITCH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 17 October 1997, 17 October 1997 [1997] NSWCA 148

Family Provision Act — claim between sisters — no error of fact or law

Mason P The late Arthur Harry Bridgewater died in 1992 aged 82 years. He was survived by three children, the appellant Mrs Herlihy now aged 67, the first respondent Mrs Leitch now aged 65 and the second respondent Mr Robin Bridgewater now aged 59. Mr Bridgewater has taken no part in the proceedings.

In a will made in 1972 the deceased left a home at 27 View Street Woollahra to his daughter Mrs Leitch. He divided the residue of his estate into three parts, one third to Mrs Herlihy, one third to his son and one third to such of the grandchildren as survived and attained the age of 21. However, the estate effectively consisted of the home and nothing else.

The deceased and his late wife had lived in the Woollahra home since 1934 having purchased it in 1958 then for the price of $4,000. The evidence was that the appellant contributed 200 pounds towards the payment of the deposit of $4000.

At various stages in their life Mrs Herlihy and Mrs Leitch lived with their parents at the Woollahra home. Apart from the time of their youth there were periods when Mrs Herlihy returned and lived at the home following the separation from her husband. However since 1970 she has lived elsewhere with a Mr Wood. Her current accommodation situation is that she and Mr Wood share a rented villa at Auburn. In her words in evidence "we care for each other, he is my carer". It is obviously a stable situation whereby each assists the other in both companionship and, to the extent that their means permit financially. Mrs Herlihy's situation as I have said is that she is now 67, she is an aged pensioner with an income of $170 per week. Mr Wood is in receipt of worker's compensation of $213 per week. The combined income of that family appears to be spent practically entirely upon living expenses including the expenses of a car, a dog and other matters. Mrs Herlihy has approximately five and half thousand dollars in a cheque account. There is some evidence as to Mr Wood's assets though it is probably not appropriate that his too much weight be placed upon his own capital situation.