MEERS v PERMANENT TRUSTEE [2000] NSWSC 1108

New South Wales Supreme Court

CITATION : MEERS v PERMANENT TRUSTEE [2000] NSWSC 1108 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 2089/1999 HEARING DATE(S) : 27/11/2000 JUDGMENT DATE : 27 November 2000

PARTIES : CHERYL ANN MEERS v PERMANENT TRUSTEE COMPANY LIMITED JUDGMENT OF : Master Macready at 1

COUNSEL : Mr. M. Willmott for plaintiff Mr M. K. Meek for defendant SOLICITORS : Barry F. Cosier & Associates, Lithgow for Plaintiff Windeyer Dibbs for defendant CATCHWORDS : Family Provision. Claim by a niece of the deceased on the basis that she was part of the deceased's household and partly dependent upon him. Estate left to deceased's siblings. Order for small legacy made. Re Fulop deceased (1987) 8 NSWLR 679; CASES CITED : Brown v Faggoter 13.11.98 C of A; Singer v Berghouse (1994) 181 CLR 201 DECISION : Para 29

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THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

MONDAY 27 NOVEMBER 2000

2089/99 - CHERYL ANN MEERS v PERMANENT TRUSTEE COMPANY LIMITED

ESTATE OF WILLIAM WALSH

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late William Walsh who died on 11 January 1998 aged sixty-five years. The deceased had no wife or children and he was one of a family of thirteen brothers and sisters. He died intestate and was survived by eleven brothers and sisters who shared on intestacy. One of those has since died leaving a widow. The estate consisted of a property known as Williewa Vale, Portland, New South Wales. It was a small property of some 232 acres and was worth about $200,000. There were some other assets which he had bringing the total of his estate of $229,501. 2 In the administration of his estate and this litigation various expenses have been incurred. There are defendant's costs of some $30,600, rates of $300 and because the property will obviously have to be sold, there is going to be things such as agent's commission of $10,000 and other expenses. For instance there is trustee's commission in excess of $9,000 and there are other administrative expenses concerning some disputes with cattle in the amount of $3,400. After making allowances for these costs and expenses, the estate when realised, it is likely to be in the order of $176,000. The plaintiff's costs, if she is successful, will also come out of the estate and they are in the order of some $20,000 leaving a balance of some $156,000. Split eleven ways that will be about $14,000 for each person all still entitled, if they can be found. 3 The plaintiff is a niece of the deceased. As such she needs to prove she is an eligible person within the meaning of that expression under the Family Provision Act. In the circumstances she has to prove that she has been part of the household of the deceased and partly dependent upon the deceased. In the circumstances of this case, this clearly has occurred. So far as the household was concerned, she moved in to the deceased's house on his property at the end of 1993 and lived there continuously until the present time. She was accompanied by her children and also her mother. So far as the dependency is concerned, it is important to note that it is only partial dependency that has to be established. I am not going into the detail of the case which set out the nature of dependency because in this case it is apparent that there is dependency of a financial and material nature. That dependency is clearly the provision of accommodation for the plaintiff and her children, she being responsible for them. There was also evidence of provision of food by the deceased and accordingly I would be satisfied that the plaintiff is an eligible person within the meaning of that expression in the Act. 4 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.'"