Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee [2001] NSWSC 394

New South Wales Supreme Court

CITATION : Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee [2001] NSWSC 394 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2525/1999; 2593/1999; 2594/1999 HEARING DATE(S) : 3, 7, 8, 12 December 2001 JUDGMENT DATE : 17 May 2001

Jill Anne Day v Perpetual Trustee Co Ltd PARTIES : Pamela Magure v Perpetual Trustee Co Ltd Judith Ann McLennan v Perpetual Trustee Co Ltd JUDGMENT OF : Master Macready at 1

J.E. Thomson & N. Newton for Jill Day COUNSEL : M.J. Stevens & V. Bedrossin for Judith McLennan and Pamela Maguire W. Haffenden for Perpetual Trustee Co Ltd P.A. Keith for Jill Day SOLICITORS : Makinson & d'Apice for McLennan and Maguire Culter Hughes & Harris for Perptetual Trustee Co Ltd CATCHWORDS : Family Provision. Applications by three adult daughters. Two of them had not seen the testator since 1944. Question of whether in the circumstances the contact was sufficient to justify an order in their favour. - Consideration of whether the daughters had rejected the relationship with their mother. - Orders made in favour of the daughters. Benney v Jones (1991) 23 NSWLR 559 Hughes v Hughes Court of Appeal unreported 6 June 1989 CASES CITED : Gorton v Parks (1989) 17 NSWLR Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9 Walker v Walker (unreported 17 May 1996) Young J Singer v Berghouse (1994) 184 CLR 201 DECISION : Paragraph 65

1 MASTER: This is the hearing of three applications under the Family Provision Act by daughters of the late Valmai Grafton Marshall who died on 5 January 1998. Orders have been made that the proceedings be heard together and evidence in one be evidence in the others. 2 The plaintiffs, Pamela Maguire and Judith McLennan, are children of the first marriage of the deceased. The plaintiff, Jill Day, is a child of the second marriage of the deceased. The deceased had a number of grandchildren. Her daughter Pamela Maguire had three children, Suzanne Lockyer, Judith Kenny and Peter Maguire. Her daughter, Judith McLennan, also had three children, Joanne McLennan, Kristina O'Connor and Scott McLennan. Her daughter, Jill Day, had one child, Lucie Day. 3 There was no contact between the children of the first marriage and the deceased after the late 1950s and there was only minimal contact with the grandchildren, by her daughters of the first marriage, in that period. This led to problems with the drafting of the will because the solicitor, charged with drafting of the will, did so on the basis of instructions by the deceased that she only had one daughter and one grandchild. The will of the deceased was made on 4 May 1990. That relevantly provided for the appointment of the defendant as sole executor and trustee. In clause three there was a bequest of household items "to my only child, my daughter Jill Anne Day" subject to a proviso that was fulfilled. Clause 4 provided for the residue to be held upon the following trust:- A. To pay the income arising from three-fifths of my residuary estate to my said daughter Jill Anne Day during her lifetime and to hold the capital comprising the said three-fifths of my residuary estate, subject to the said life interest of my said daughter upon trust for such of my grandchildren as shall survive me and attain the age of twenty one (21) years if more than one in equal shares absolutely. B. To hold two-fifths of my residuary estate upon trust for such of my grandchildren as shall survive me and attain the age of twenty one (21) years, if more than one, in equal shares absolutely. C. If no grandchild of grandchildren of mine shall survive me and attain the age of twenty one (21) years my Trustee shall hold the whole of my residuary estate upon trust for my said daughter Jill Anne Day absolutely provided she shall have survived me by more than thirty (30) days and be living at the date of death of my last surviving grandchild." 4 There was obviously an uncertainty having regard to the reference to a sole daughter and the fact that such daughter only had one child. As a result proceedings to construe the will were brought by Lucie Day by her tutor, Jill Day. Those proceedings were determined by Young J on 22 February 1999. He declared that upon the true construction of the last will and testament of Valmai Marshall, and in the circumstances that have happened, the references to "grandchildren" in clause 4 meant Lucie Jane Day, Peter Anthony Maguire, Suzanne Pamela Lockyer, Judy Anne Kenny, Joanne McLennan, Kristina O'Connor and Scott Andrew McLennan. 5 It can thus be seen that the estate is held as to three fifths for the life of Jill Anne Day with a gift in remainder to the seven grandchildren and as two fifths absolutely for the seven grandchildren. 6 The estate has been reduced to cash and at the time of the hearing amounted to $434,152.37. Substantially that amount represents the proceeds of sale of the deceased's home at Cremorne which was sold for $416,000. There are substantial costs that have been incurred by the parties. These are as follows:-