BURNAGE v STRECKFUSS and ORS [1998] NSWCA 46

BURNAGE v STRECKFUSS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER JJA and FITZGERALD AJA 14 October 1998, 14 October 1998

[1998] NSWCA 46

Family Provision Act 1982 — application for provision to be made from deceased estate

Sheller JA Jillian Violet Burnage appeals from a decision of Master McLaughlin of 15 April 1998 dismissing with costs her application by summons for an order under s7 of the Family Provision Act 1982 that provision be made for her out of the estate of her mother, Marjorie Violet Elaine Burton-Bradley, who died on 8 November 1994.

Mrs Burton-Bradley left a will dated 3 May 1992, probate of which was granted to the executors named in it, Roslyn Streckfuss, Phillip Hoyle and Merrick James Spicer who were the defendants to the summons and are the respondents to this appeal.

Mrs Burton-Bradley had six children. The five who survived her were Mrs Streckfuss, who was born in 1943, Mrs Pfeiffer, who was born in 1944, the appellant, who was born in 1948, Mrs Roberts, who was born in 1952 and a daughter known as Sally, who is the wife of the executor, Dr Hoyle. A son, Michael, died during his mother's lifetime in 1985.

The deceased's estate was valued for probate purposes at $437,625. The main asset was land at Moorland near Taree valued at $420,000. The Master proceeded on the basis that the net value of the estate was $325,788.

By her will the deceased gave the appellant a legacy of $1000 expressed to be "for her kindness and support of me'. She gave the same amount for the same express reason to Mrs Pfeiffer. The residue of her estate she gave to her other three surviving children, Mrs Streckfuss, Mrs Roberts and Sally as tenants-in-common in equal shares.

In addition to the appellant's application for provision, the Master heard at the same time applications under the Act for provision out of the estate by Mrs Pfeiffer and three grandchildren of the deceased, the children of the deceased son, Michael. The Master dismissed these two other applications and no appeal has been brought against these orders.