MORGAN v PUBLIC TRUSTEE [1999] NSWSC 1112

New South Wales Supreme Court CITATION : MORGAN v PUBLIC TRUSTEE [1999] NSWSC 1112 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2627/98 HEARING DATE(S) : 29/10/99 JUDGMENT DATE : 1 November 1999

PARTIES : BARBARA ANNE MORGAN v PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF ELLA ENID NILON JUDGMENT OF : Master Macready at 1

COUNSEL : Mr B. O'Sullivan for plaintiff Mr P. Blackburn-Hart for defendant SOLICITORS : Vandenberg Reid for plaintiff P.J. Whitehead for Public Trustee CATCHWORDS : Family Provision. Application by niece in respect of estate passing to the Crown as Bona Vacantia. Consideration of factors warranting. Inappropriate to have regard to possible application under s 61B(8) of the Wills Probate and Administration Act. Order made for a legacy. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681. Churton v Christian (1988) 13 NSWLR 241 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Anasson v Phillips (Young J 4.3.98) Brown v Faggoter (Court of Appeal 13/11/98) DECISION : Paragraphs 46 and 47

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

MASTER MACREADY

MONDAY 1 NOVEMBER 1999

2627/98 - BARBARA ANNE MORGAN v PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF ELLA ENID NILON

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Ella Enid Nilon who died on 12 July 1997 aged 72 years. The deceased was survived by the plaintiff who is the daughter of the deceased's sister. The deceased was also survived by three step children being children of her husband, Dudley Nilon from an earlier marriage. They have been notified of the proceedings, and make no claims so their interests can be disregarded. 2 The deceased died intestate, and given the enquiries made by the defendant administrator it is clear the proceeds pass to the Crown as bona vacantia.. There was reference in the affidavit evidence to the intention of the step children to make application to the Crown for payment out under s 61 B (8) of the Wills Probate and Administration Act 1998. However, having regard to s 7, 9 and 20 of the Family Provision Act it would be inappropriate to have any regard to such intention. The estate has been reduced to cash and amounts to $353,305.44. The defendant's costs amount to $10,000 and the plaintiff's $47,000. The distributable estate is thus in the order of $300,000. 3 In order to set the background I will deal with some of the history of the deceased and her family. The deceased, Ella Enid Nilon was born on 18 June 1925. The plaintiff was born at the Royal Hospital for Women, Paddington, New South Wales. Her mother was not married, and at that stage she was residing with her grandmother at 211 Johnston Street, Annandale. The deceased, Ella Nilon, was a first cousin of the plaintiff's mother and was residing nearby at 215 Johnston Street, Annandale. 4 The plaintiff's mother in between March and September 1943 married and left Australia to reside in New Zealand with her husband. The plaintiff, her daughter, then commenced living at 215 Johnston Street, Annandale in the care, custody and control of the deceased and her parents. 5 Some two years later the plaintiff's mother returned to Australia following the death of her first husband. The plaintiff then apparently left 215 Johnston Street to live at 211 Johnston Street, Annandale with her mother and grandmother. Later in 1945 the plaintiff commenced work as a live-in housekeeper at Kirribilli. Once again the plaintiff returned to live at 215 Johnston Street, Annandale in the care, custody and control of the deceased. 6 The plaintiff commenced primary school in February 1946 and about this time the plaintiff's mother married for the second time. A daughter was born in 1948 of that second marriage, and at this stage the plaintiff was living from time to time either with her mother or with the deceased and her parents at 215 Johnston Street. 7 In 1949 the plaintiff's mother separated from the second husband, and the plaintiff then moved back to her mother's place. In early 1950 the plaintiff's mother obtained employment as a live-in domestic at High Street, Kirribilli. She and her daughter Clare moved to that address. The plaintiff did not accompany them, but returned to moving between 211 and 215 Johnston Street, Annandale where she was looked after alternately by her grandmother, the deceased and her parents. 8 In 1952 the plaintiff commenced her secondary education at Riverside High School, and at this stage it was the deceased who was making her uniforms, paying the school fees, and matters of this nature. Also in 1952 the plaintiff's mother left home and moved to a live-in position at Bankstown in New South Wales. 9 By 1956 the plaintiff had finished her secondary school education and commenced working. Once again she moved between 211 and 215 Johnston Street, Annandale being looked after by either her grandmother at 211 or the deceased at 215. 10 In January 1961 the plaintiff married John Morgan and commenced her family the following year. They moved to Bankstown in 1963 and in 1964 came back to 211 Johnston Street in order to look after the plaintiff's ailing grandmother. In due course, a year later in 1965 they moved to Seven Hills and continued raising a family. 11 It was in 1975 that the deceased married Dudley Nilon. The contact between the plaintiff and the deceased at this stage lessened but they still maintained contact. During the following years there were visits by some of the step children of the deceased to Australia to visit the deceased's husband. 12 It was in 1995 that the plaintiff was first diagnosed with breast cancer. She had medical treatment both chemotherapy and radiation. By 1996 it was in remission, and her treatment ceased at that stage. 13 In March 1996 the deceased's husband Mr Nilon died, and thereafter the association between the plaintiff and the deceased increased to the extent that the plaintiff and her husband would look after the deceased by taking her on outings and keeping her company. 14 In November 1996 the plaintiff's husband was retrenched from employment at Otis as a result of work injuries and has not worked since then. The following year in various discussions the deceased indicated that she proposed to leave her house to the plaintiff and talked of making a will to that effect. 15 The deceased died on 12 July 1997 and thereafter a grant of administration was taken out in due course and the proceedings were commenced within time. By August 1997 the plaintiff's breast cancer started to spread to her lungs, and she has undergone further treatment since then. 16 For the plaintiff to be able to claim in that estate it is necessary for her to be an eligible person, and in the present case she will only be an eligible person if she is part of the household, and partly dependent upon the deceased. There is no dispute that she was part of the household that comprised the deceased and the deceased's parents. 17 Dependency also is conceded, and this is obvious from the account which I have given of the plaintiff's movements to and from 215 Johnston Street. Effectively the plaintiff was mothered by the deceased. There was provision of clothes and the necessities of life by the deceased. This on the evidence included the providing of food. 18 It is clear that the plaintiff is an eligible person. However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 19 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252 after setting out and approving the statement added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."