SALMON and ANOR v BLACKFORD [1997] NSWCA 274

SALMON and ANOR v BLACKFORD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 18 February 1997, 18 February 1997 [1997] NSWCA 274

Family Provision Act 1982 — widow's application aged 75 — deceased's second marriage — opposed by three adult daughters of first marriage — matrimonial home — order giving fee simple to widow — proper discretionary judgment

Sheller JA The deceased, Harry John Gilmore Blackford, died on 14 October 1991. He left an estate of a net value of approximately $550,000. His assets comprised the freehold of a house at 24 Kallang Parade, Wahroonga valued at $275,000; 1991 Nissan Pulsar motor vehicle valued at $19,000; money held in various bank accounts and on term deposits of $180,000; an investment bond with Mercantile Mutual Life Insurance Company valued at $66,503; taxation credits of $25,920 and some thousands of dollars in current bank accounts and superannuation. His liabilities were approximately $21,502.

He was survived by his second wife, the respondent, Iris Helen Blackford, who was born on 29 July 1919 and whom he married on | September 1961 and by three daughters of his first marriage, Pamela Ann Salmon, who was born on 13 June 1942, Suzanne Gai Shepherd, who was born on 24 August 1944, these two daughters being the appellants in this appeal, and Dianne Lynn McKenzie, who was born on 16 October 1950.

The respondent has a son whom she adopted in March 1947 during her first marriage to John William Goode. The son was born on 24 March 1947. She divorced her first husband in 1955 and he died in 1989. The evidence is that when she married the deceased he would not allow her son to come and live with them.

Probate of the deceased's will dated 23 August 1968 and a codicil thereto dated 21 March 1975 was granted to the appellants on 13 February 1992. Relevantly the combined effect of these testamentary documents was to devise the residence at Wahroonga and its contents upon trust for the respondent during her lifetime or until she should remarry subject to the payment by her of all rates, taxes, insurance premiums and repairs thereon and to declare that from and after her death or remarriage the same should fall into and form part of his residuary estate. The residue of his estate he left to his three daughters in equal shares in the events which have happened.