Sanders v Valtas [1999] NSWSC 1216

New South Wales Supreme Court CITATION : Sanders v Valtas [1999] NSWSC 1216 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2227/99 HEARING DATE(S) : 24/11/99 JUDGMENT DATE : 24 November 1999

PARTIES : Marjorie Jean Sanders v Steven Valtas JUDGMENT OF : Master Macready at 1

COUNSEL : Mr John Wilson for plaintiff Mr N.M. Carney for plaintiff SOLICITORS : Slattery Thompson for plaintiff Astley Thompson & Valtas for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by three children. Estate passes to a church. Small estate. Orders for estate to be divided equally between the plaintiffs. No matter of principle. CASES CITED : Singer v Berghouse 181 CLR 201 of 209. Kleinig v Neal (1981) 2 NSWLR 532 at 540 DECISION : Paragraph 37

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 24 NOVEMBER 1999

002227/99 - MARJORIE JEAN SANDERS & ORS v STEVEN VALTAS - ESTATE OF SHIRLEY DELEPHINE McKENZIE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Shirley Delephine McKenzie who died on 25 December 1998. 2 The deceased was survived by her three children, Marjorie Jean Saunders, Debra Kay Jones and Russell Phillip McKenzie. 3 The deceased made her last Will and testament on 8 April 1997. She appointed the defendant her executor. She left her estate to the First Church of Christ Scientists, 175 Huntington Avenue, Boston, USA. 4 At the same time the deceased executed a statutory declaration in which she indicated her reasons for not leaving the estate to her children. In respect of her son Russell and her daughter Marjorie she said that she did not want to give them her estate because they had drifted away from her for many years and no longer treated her as a mother. In respect of her daughter Debra she referred to a letter of 12 December 1996 that Debra had written to her and her own reply and indicated that given the matters in her reply in that letter she had deliberately left Debra out of the Will. 5 The deceased left a house property at 123 Carpenter Street, St Marys. This property was sold for $123,000. There was a Commonwealth bank account with a credit of $7,708. The account was accessed by the plaintiff Debra who had her mother's power of attorney. Those funds were to treat debts and funeral expenses and has been accounted for except for some $350 odd. 6 The distributable estate now totals $112,962. From this there will be costs to be deducted. The defendant's costs amount to $10,110 and on the estimate provided by the defendant's solicitor by affidavit it is a proper amount for a small estate. The plaintiff's costs are estimated at some $25,000 and this estimate is simply nothing more than that. It would be surprising, given the shortness of the affidavit, that they might amount to that. In any event, there will be some costs if an order is made in favour of the plaintiffs. That will be dealt with in the assessment in due course. 7 I will give some short details of the chronology of the matter. 8 The son Russell was born on 14 April 1948. Marjorie was born on 8 March 1950. Debra was born on 3 April 1958. Their father, Phillip Leslie McKenzie, died in 1960. Prior to that he had been in the Australian Army and had been posted to many stations in Australia to which the family travelled. 9 In 1963 Russell left school and obtained an apprenticeship at Garden Island. 10 In 1965 Marjorie left home at the age of 15 years. She at that stage had a disagreement with her mother. Russell joined the Air Force and served in the Air Force for many years, including Vietnam. 11 In 1971 he was discharged and commenced to live with the deceased again. He remained there for some two or three years. He then moved into rented accommodation. 12 In 1976 Debra moved away from home. Thereafter the children lived their lives, the detail of which is not critical to the present matter. 13 Russell last seems to have worked in 1989 and moved to Ballina and married in 1990. In April 1991 he received the TPI pension. 14 Debra married her present husband in 1992 and Marjorie married her present husband in 1994. 15 It was in 1994 that Debra and Andrew moved to Leichhardt and subsequently they went to Earlwood. They were not too far from the deceased. 16 The deceased's last Will was made on 8 April 1997, as I have said. Towards the end of 1998 her health declined and was in Mount Druitt Hospital in October and thereafter transferred to various nursing homes before she died on 25 December 1998. 17 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."