BLAIR v NOBLE [2000] NSWSC 1106

New South Wales Supreme Court

CITATION : BLAIR v NOBLE [2000] NSWSC 1106 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3190 of 1999 HEARING DATE(S) : 01/12/2000 JUDGMENT DATE : 1 December 2000

PARTIES : Stephen Blair v David Noble (Estate of John Robert Blair) & Ors JUDGMENT OF : Master Macready at 1

Mr C.M.Simpson - Plaintiff COUNSEL : Mr M. Wals - 1st Defendant Mr J. Wilso - 2nd Defendant Mr Stephen Teece - Plaintiff SOLICITORS : Mr Norris Stuart-Jones - 1st defendant Mr J. Lynch - 2nd defendant CATCHWORDS : Family Provision. Claim by a son with disabilities requiring the provision for him of accommodation. Order made in favour of the son. - No matter of principle. DECISION : Para 28

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 1 DECEMBER 2000

3190/99 STEPHEN BLAIR v DAVID NOBLE - ESTATE OF JOHN ROBERT BLAIR & ANOR

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John Robert Blair. He died on 29 October 1998 aged sixty-nine years. The deceased was survived by his de facto wife, Maneenet Urasi, who was the second defendant in the proceedings, the former wife, Elizabeth Blair and four adult children. 2 The plaintiff is the second eldest of the plaintiff's four children having been born on 12 February 1954, and is now aged forty-six. The proceedings were instituted within time. 3 The deceased made his last will and testament on 27 October 1998 two days before he died. He appointed the first defendant executor and gave the whole estate to him on trust. Firstly, he was to pay the proceeds of his retirement pension to his de facto wife, and secondly, a further $150,000 by way of legacy to her. Thirdly, he directed his executor to hold an amount of $120,000 to invest and pay the income to the plaintiff Stephen Blair during his life, and after his death amongst his grandchildren equally. 4 There then followed a life interest in $30,000 to a son, Bruce Blair with residue to his children, and then there followed five specific legacies to various friends of the plaintiff, and then there was a residuary bequest for the estate to be held amongst the grandchildren. 5 The situation in the estate has been cleared up in some respects now compared to when the matter first came before the Court. The estate consisted of a number of different assets, most of which have now been realised and reduced to cash. 6 Indeed, in the executor's affidavit of 1 December, Mr Noble has identified a net amount held in banks and term deposits of $340,056. For the purposes of the present exercise I will add back in two amounts, the first is the costs paid on account to the defendants' solicitors of $6,560 and the second is the partial distribution to the deceased's de facto wife of $26,617. 7 As a result of some further work after the commencement of the case, it is apparent that there are preference shares held in a company called Golden Resource Developments of some $12,500 having a value of $14,750. 8 There are also 30,000 shares in Canada Land Limited which are apparently worth five cents, giving a value of some $1,500 which makes a total distributable estate of $397,867. 9 The second defendant was joined on the express basis that only one set of costs would be allowed. Costs have been estimated for the plaintiff at $19,222, and the first defendant $10,500, and the second defendant $19,050. Allowing on the basis of one set of costs at $40,000, one has an available estate of $357,867. The High Court has recently in Singer v Berghouse (1994) 81 CLR 201 set out the two stage approach that the 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' 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably, be made and making an order could disturb the testator's arrangements to pay creditors."