HUMPHRIES v PUBLIC TRUSTEE [2001] NSWSC 564

New South Wales Supreme Court

CITATION : HUMPHRIES v PUBLIC TRUSTEE [2001] NSWSC 564 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1809/2000 HEARING DATE(S) : 26/06/2001 JUDGMENT DATE : 26 June 2001

PARTIES : RHANA HUMPHRIES v PUBLIC TRUSTEE JUDGMENT OF : Master Macready at 1

COUNSEL : P.Blackburn-Hart for plaintiff L. Ellison for defendant SOLICITORS : Peedoms Solicitors, Wollongong P.J. Whitehead for Public Trustee CATCHWORDS : Family Provision. - Application by daughter in resepct of small estate left to grandchildren. - Order for legacy. - No matter of principle. DECISION : Paragraph 56

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Rena Elizabeth Cook who died on 7 January 1999. 2 She was survived by her daughter, the plaintiff in the action, and a number of grandchildren and great grandchildren. In her will, which was made on 18 December 1997, she appointed the Public Trustee as executor and left the whole of her estate to her four great grandsons, who survived her and reached eighteen years of age. Those four great grandsons, who have not reached eighteen years of age and who have survived her, are: Ryan David Humphries, Joel Gardiner Humphries, Kieren James Humphries and Timothy Robert Delaney. No provision was made for the plaintiff under the will. 3 The estate of the deceased consisted of a property and some cash and the house which would appear now to be worth $175,000. There is cash of $16,120, making a total of $191,120. There is the Public Trustee's commission of $6100. The plaintiff's legal costs are assessed at $15,500 and the defendant's at $10,800. In addition, there will be the selling costs of the property. One would expect a distributable estate, assuming, of course, an order is made in favour of the plaintiff, to be in the order of $150,000. 4 I will deal with some brief matters of family history. The deceased married in 1934. It is apparent from the evidence that she was already at that time pregnant and her child, the plaintiff, was born on 31 March 1935. A brother to the plaintiff, Gary, was born on 28 January 1937. 5 In 1954 the plaintiff married and she had her daughter Kaye on 9 March 1956. Her son David was born on 11 May 1962. 6 The deceased's son and the plaintiff's brother, Gary, died on 1 September 1967. Shortly thereafter, the deceased's father died on 1 June 1968, he apparently committing suicide. 7 In 1970 there was an incident to which I will return, when the deceased went to Gladesville Psychiatric Hospital. She was again, in 1992, in Wollongong Hospital. It was after that time that the plaintiff chose to no longer visit the deceased. I will come back to the reasons for that later. 8 Her will was made on 18 November 1997, to which I have referred. In August or September 1998 the deceased was again in Wollongong Hospital. The plaintiff, having found out about it, went and spent a week visiting her several times a day. 9 The deceased died, as I have mentioned, on 7 January 1999. Probate has been granted and the proceedings commenced within time. 10 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 has 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 applicant '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' et cetera were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for 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 the other persons who have legitimate claims upon his or her bounty.