New South Wales Supreme Court CITATION : Hunter & Anor. v. Public Trustee [2000] NSWSC 83 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1975/96 HEARING DATE(S) : 23/02/00 JUDGMENT DATE : 23 February 2000 John Joseph William Hunter, by his tutor the Protective Commissioner - 1st plaintiff PARTIES : Rupert Paul Hunter, by his tutor the Protective Commissioner - 2nd plaintiff The Public Trustee - Defendant JUDGMENT OF : Hodgson CJinEq at 1 COUNSEL : Mr J. Wilson for plaintiffs Mr. L. Ellison for defendant SOLICITORS : Terrence Murphy, Liverpool Legal Aid Office for plaintiffs P.J. Whitehead, Solicitor for the Public Trustee CATCHWORDS : Succession - Family Provision - Application by stepchildren. LEGISLATION CITED : Family Provision Act s.9 DECISION : See pars.15 and 16 of judgment IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORAM: HODGSON, CJ in Eq. Wednesday 23rd February 2000 NO. 1975 OF 1996 HUNTER & ANOR. V. PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: The late Stella Constance Hunter died on 22 April 1995. She was a widow and left no children of her own. However, she did leave two stepchildren, namely, John Hunter and Rupert Hunter. She left an estate that consisted of a house at Bonnyrigg said to be worth about $120,000 and something in the order of $20,000 in money. By her last will dated 27 September 1985 she left her whole estate to such of her sisters Queenie Moore and Gwendoline Rouse as should be living at her death. Gwendoline Rouse predeceased her, having died on 4 July 1992. 2 In these proceedings the stepchildren seek orders under the Family Provision Act. 3 The deceased was born in 1907. John Hunter was born in 1943, and Rupert Hunter was born in 1945. They were the children of the late John Andrew Hunter and Muriel Gwendoline Fisher. The marriage of John Andrew Hunter and Muriel Gwendoline Hunter was dissolved on 21 December 1950, and on 27 January 1951 John Andrew Hunter married the deceased. 4 From that time onwards I think it is fair to say that the plaintiffs were treated by the deceased as if they were her children. They lived with the deceased, and their father until his death at Horsley Park, and subsequently at the house in Bonnyrigg until the deceased was admitted to a nursing home on 6 July 1990. The plaintiffs have continued to occupy the property at Bonnyrigg until the present. 5 Both plaintiffs suffer from intellectual disabilities. After the commencement of these proceedings, orders were made committing the management of their affairs to the Protective Commissioner, in the case of John Hunter in November 1996, and in the case of Rupert Hunter in December 1996. The Protective Commissioner has become the plaintiffs' tutor in these proceedings. 6 John Hunter is now aged 56 years. He receives a disability pension of $422.30 per fortnight. He does some casual lawn mowing and earns about $45 per week. His assets consist almost entirely of $5,000 held by the Protective Commissioner. He has no liabilities, apart from the liability he may have for the cost of these proceedings. 7 Rupert Hunter is aged 54. He receives a disability pension of $422.30 per fortnight and earns about $30 a week from casual work. He owns a motor vehicle said to be worth about a $1,000 and has about $3,500 held by the Protective Commissioner. He has no liabilities, apart from the possibility of a liability for costs in these proceedings. 8 The beneficiary, Queenie Moore, is a widow now aged about 85. She owns her house at 14 Hope Street, Hallidays Point, and there is no evidence to suggest that that is inadequate for her. In her affidavit, which was sworn in 1997, she asserted that she had about $45,000 in her two bank accounts. She said she was in receipt of a pension from the Department of Social Security of $340 per fortnight and that her fortnightly expenditure was about $300. She said she was in reasonable health considering her age. There is no evidence to suggest any material change in her situation, and I will proceed on the basis that there has been no material change. Apart from indicating that she is a widow, her evidence does not give any information about her own family. 9 In these circumstances, Mr Wilson for the plaintiffs submits that the plaintiffs are eligible persons by virtue of paragraph (d) of the definition of "eligible person" in the Family Provision Act; and that the circumstance that the deceased treated them as her children since about 1951, and since the death of their father in 1969 provided housing accommodation for them, established that there are factors that warrant the making of the application within section 9(1) of the Act. Having regard to the needs of the plaintiff and the lack of significant moral claim by the beneficiary, Mr Wilson submitted that an order should be made that the whole estate pass to the plaintiffs. 10 Mr Ellison for the defendant submitted that the Court should not interfere with the will to any greater extent than necessary. It would make adequate provision for the proper maintenance of the plaintiffs if they were given accommodation for the rest of their lives in the Bonnyrigg house, with recourse to the value of the house to provide other accommodation if that should become necessary. 11 In my opinion, for the reasons advanced by Mr Wilson, there are factors warranting the making of this application within section 9(1) of the Act, and in my opinion it is clear that the provision made in favour of the plaintiffs by the deceased is at the present time inadequate for their proper maintenance. 12 In my opinion the competing claim of the beneficiary is not in the particular circumstances of this case a strong one, having regard to the means of the beneficiary, and also the fact that her relationship with the deceased was not a particularly close one. In my opinion provision for the plaintiffs along the lines suggested by Mr Ellison would not be adequate provision for their proper maintenance in this case, and in my opinion the appropriate order is an order that the plaintiffs receive the whole estate as joint tenants. 13 There is, it appears, not sufficient money in the estate to pay the costs of both sides and the commission due to the Public Trustee. However, the Legal Aid office has indicated that it would be prepared to take a charge over the property on its standard terms to secure the payment of costs, and as I understand it, the Public Trustee would not seek to recover costs or commission which cannot be satisfied out of money held in the estate unless the property were to be sold. 14 So, for those reasons I make the following orders. 15 I order that the plaintiffs receive as joint tenants the whole of the estate of the late Stella Constance Hunter. 16 I order that the costs of the public trustee on an indemnity basis be paid from the estate. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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