Parry v Osgood [2001] NSWSC 664

New South Wales Supreme Court

CITATION : Parry v Osgood [2001] NSWSC 664 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3622 OF 2000 HEARING DATE(S) : 03/08/2001 JUDGMENT DATE : 3 August 2001

PARTIES : EVA WINIFRED PARRY v GEORGE EDWARD OSGOOD & BETTY JOYCE OSGOOD JUDGMENT OF : Master Macready at 1

COUNSEL : P. O'Loughlin for plaintiff R. Wilson for defendants SOLICITORS : Spencer Davies for plaintiff Messrs Walker Smith for defendants CATCHWORDS : Family Provision. Claim in respect of a small estate. No matter of principle. DECISION : Paragraph 20

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Isabel Louisa Maud Osgood who died on 14 October 1999. The deceased was survived by her two children, the plaintiff, Eva Parry, and the first defendant, George Osgood. 2 The deceased made her last will and testament on 17 September 1998. Under that will she provided a right of residence to the plaintiff for a period of 12 months. The plaintiff and her husband had for many years lived in a second dwelling which is known as the jockey quarters on the property at Cundletown. Subject to that matter the estate was held as to one half for the plaintiff and one half for the first defendant, George Edward Osgood. 3 The estate consisted of the property which has been sold, probably for far less than the parties anticipated. After paying various expenses, the estate has been reduced to cash and amounts to $129,252.22. The costs of the plaintiff and the defendant are in the order of $50,311, meaning that the balance of the estate, assuming the plaintiff is successful, is $78,941. The plaintiff and the first defendant would each receive $39,470 under the terms of the will. 4 I will just give a little of the history and the background so it puts the matter in context. The deceased herself was born in 1910 and her daughter, Eva Winifred Parry, was born on 4 May 1929. The son, George Osgood, was born on 14 November 1930. The deceased was divorced in 1940 and she married Frederick Richard Osgood in January 1941. It was in 1947 that there was an adoption order by which the deceased and Mr Osgood were appointed the adopting parents of the plaintiff and George Osgood. 5 The deceased and Mr Osgood moved to Cundletown initially in 1967 in conjunction with some friends with whom they bought a property. Eventually it was in 1974 they purchased a property at 360 Landsdowne Road, Cundletown and a home was erected on the property. 6 It was in 1975 that at the request of Mr Osgood and the deceased, the plaintiff and her husband re-located to Cundletown. For about 12 months they lived in the main home but then in 1976 and 1977 the carport and jockey quarters were converted into self-contained accommodation. The plaintiff and her husband moved into that accommodation. 7 On 7 September 1977 Frederick Osgood died of cancer and thereafter the deceased was looked after inter alia by the plaintiff and others. She had a fall in 1997 and was admitted to the Wingham Hospital. She was then assessed as needing to go to a nursing home. There was some argument about whether she should go into a home. She was discharged from hospital and then went with the defendant to live with them in Newcastle. 8 She made a will on 17 September 1998 and in July 1999 was admitted to a nursing home. She died in October. Probate was granted, the proceedings were commenced within time and the property eventually sold in September 2000. 9 In applications under the Family Provision Act the High Court has some time ago 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 application '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.