HURST v PUBLIC TRUSTEE [2000] NSWSC 1109

New South Wales Supreme Court

CITATION : HURST v PUBLIC TRUSTEE [2000] NSWSC 1109 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2874 of 1999 HEARING DATE(S) : 29/11/2000 JUDGMENT DATE : 29 November 2000

PARTIES : Barry Stephen Hurst v The Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : Mr G. McGrath for plaintiff Mr A. Scotting for defendant SOLICITORS : Gary Stewart & Associates, Manly, for plaintiff Stewart Green Mijovich for defendant CATCHWORDS : Family Provision. Application by a brother of the deceased who had cared for the deceased during his later life. Promises by the deceased that he would leave the plaintiff half of the house. In fact only 2/3rds left to the brother. Order made increasing provision for the brother. Re Fulop Deceased (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241; Brown v Faggoter 13.11.98 Cour of Appeal; Singer v Berghouse (1994) 181 CLR 201; CASES CITED : Goloski v Goloski 5.10.93 Court of Appeal; Luciano v Rosenblum (1985) 2 NSWLR 65; Elliott v Elliott 24.4.86 Court of Appeal; Shearer v The Public Trustee Hawke v The Public Trustee Young J 23.3.98. DECISION : Paragraphs 37 -39

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

MASTER MACREADY

WEDNESDAY 29 NOVEMBER 2000

2874/99 BARRY STEPHEN HURST v PUBLIC TRUSTEE - ESTATE OF JACK FRANCIS HURST

JUDGMENT 1 MASTER: This is the hearing of a Family Provision Act application in respect of the estate of the late Jack Francis Hurst, who died on 20 November 1998 aged eighty-six years. He had been one of fifteen brothers and sisters, and was the eldest brother. His wife pre-deceased him and he had no children. No other type of claim is made in the summons filed in this matter. 2 The plaintiff is the deceased's youngest brother. By his will, which was made on 27 September 1988, the deceased left two-thirds of his estate to his sister, Joyce Olive Buckley, and one-third to the plaintiff. 3 The estate is a modest one. It comprises a property at 23 Kourung Street, Ettalong. There is a sworn valuation of $235,000, and there are estimates of other valuations being in the range of $210,000 and $220,000. The latter one was expressed in terms of being an appraisal, and accordingly, I will adopt the value of $235,000. There is cash in the estate of $37,849, making a total gross value of $272,849. 4 There are a number of matters to be deducted. There will be the Trustee company's commission of $8,000, costs on sale of about $8,000, and in addition, if the plaintiff is successful, there will be the plaintiff's costs in these proceedings, which are estimated at $23,390, and the defendant's costs, which are estimated at some $20,000. This leaves a net estate of $213,459. 5 It is useful to give a brief chronology of some of the relevant events. The deceased was born in 1911, and the plaintiff, his younger brother, was born on 16 June 1937. The family originally lived in the Mascot and Botany area. About forty to fifty years ago the deceased moved to the Central Coast with his wife. They did not have children. The deceased's wife died in August 1988, and the deceased lived alone at Ettalong. He was then a pensioner and he remained so until his death. 6 On 27 September 1988 the deceased made his will, to which reference has been made. It was in about December 1988, in one of the regular visits between the deceased and the plaintiff, that the deceased said to him, that is the plaintiff, that the plaintiff was getting half the house, and he then asked the plaintiff to pay half the rates for the house. From then on the plaintiff commenced making those payments, and I am satisfied that they were made over the years thereafter. 7 In November 1995 the deceased was diagnosed with bowel cancer and had some surgery. He stayed with his sister, the beneficiary, for a week, and then came home to Ettalong. From that time until March or April of 1996, the plaintiff used his leave entitlement and holiday pay to come up and look after the deceased during this period. 8 In March or April 1996 the plaintiff took voluntary redundancy from his job as a storeman with the Navy. At his brother's request he went up to Ettalong to live with him. The plaintiff could have taken some other employment, but decided to take redundancy, partly motivated by the need to care for his brother, with whom he was obviously close. The plaintiff was then fifty-nine years of age. He gave up his rented accommodation at Mascot, moved all his effects to Ettalong, and moved into the deceased's house, which was a two-bedroom fibro house with an iron roof. 9 Thereafter he continued looking after the deceased. He started paying for most of the groceries, and he paid for half the electricity, telephone bills, and rates and those matters. In 1996 the plaintiff himself started to receive social security payments, and is now on a pension. 10 On 20 November 1998 the deceased died. For the plaintiff to be able to make a claim under the Act it is necessary that he be an eligible person. He can be an eligible person if he has been a member of the household of the deceased, and also at that or some other time had been partly dependant upon the deceased. In the present case it is clear, because of the move into the house of the deceased, that the plaintiff was part of the household. 11 Without going into the detail, the cases make it clear that financial material dependency is one matter which is referred to in the section. Here there was clearly the provision of accommodation by the deceased. The house was in his name, and he provided in effect a roof for the plaintiff. Accordingly, I am satisfied that the plaintiff is an eligible person. 12 It is also, however, 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 the 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.'"