HOARE v DUBOIS [1999] NSWSC 1066

New South Wales Supreme Court CITATION : HOARE v DUBOIS [1999] NSWSC 1066 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1945/92 HEARING DATE(S) : 23/09/99 JUDGMENT DATE : 25 September 1999

PARTIES : IOLANDA HOARE v EDWARD DUBOIS (Estate of the late John Smyth) JUDGMENT OF : Master Macready at 1

COUNSEL : Mr J. Armfield for plaintiff Mr B. Ralston for defendant SOLICITORS : Greg Walsh & Co for plaintiff Robert D West & Associates for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by a defacto partner of many years. Large estate. Order made for an additional legacy of $600,000. Singer & Berghouse (1994) 181 CLR 201 CASES CITED : Goloski v Goloski unreported 5/10/93 C.A. Anasson v Phillips Young J 04/03/88 DECISION : Paragraphs 82, 83, 85.

- 1 -

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 25 SEPTEMBER 1999

1945/92 - IOLANDA HOARE v EDWARD DUBOIS (ESTATE OF THE LATE JOHN SMYTH)

1510/99 - EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 3 ORS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John Smyth who died on 6 January 1991. The deceased was survived by the plaintiff who had lived with him for many years. 2 The deceased was also survived by Isabella Hodgson who had lived with the deceased for a short time prior to his death. There is some suggestion in the evidence of Isabella that the deceased may have had a wife. 3 Further evidence has been given by the plaintiff who, it will be appreciated from what I say later, had lived with the deceased from the mid 1960s. 4 According to her the deceased in fact never had a wife and he joked on one occasion about how no one would ever have him. 5 In the circumstances it would seem to me that it is safe to assume that he did not have a wife but even if he did the estate is of such a size that any such claim from a former wife may well be accommodated. In any event, the claim would be substantially discounted because it must relate to some relationship prior to the 1960s, more than thirty years before the death of the deceased. 6 Other relevant people who take under the deceased's will are the plaintiff's daughter, Yvonne Hoare, and the defendant, who was a friend of the deceased for a few years prior to his death. 7 The estate of the deceased is substantial. At the time of probate it was valued at $2,220,874.52. It is now presently valued at some $3,162,970.80 The major assets are real estate and their value is as follows: A 71 Helen Street, Sefton $ 210,000 B 344 Albury Street, Murrumburrah - Post office 30,000 C 7 Walker Place, Church Point 2,000,000 D 42, 44, 46 & 48 Neill Street, Harden 75,000 E 146 Neil Street, Harden 5,000 F 27 Neill Street, Harden 50,000 G 96 Waldron Road, Chester Hill 300,000 H 34 pacific Highway, Mooney Mooney 280,000 8 Other assets which the deceased has include an interest in the estate of his step brother Alex Felby of $169,713.47 and there are various moneys on deposit and shares of between $60,000 and $70,000. 9 The will of the deceased was a home-made will. There has been a construction suit in respect of that will which I heard the day before yesterday and I gave judgment yesterday on the result of that suit. I will not repeat the matters that I dealt with in it but reference can be made to that judgment for the background for the provisions of the will of the deceased. 10 Having regard to the result of the construction suit, the position of the beneficiaries before payment of costs, expenses and any further provision for the plaintiff is as follows: