Piercy v Connellan [2001] NSWSC 1115

New South Wales Supreme Court

CITATION : Piercy v Connellan [2001] NSWSC 1115 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5065/00 HEARING DATE(S) : 29/11/01 JUDGMENT DATE : 30 November 2001

PARTIES : JESSICA MICHELLE PIERCY v GEOFFREY THOMAS CONNELLAN - ESTATE OF GRAHAM ROBERT PIERCY JUDGMENT OF : Master Macready at 1

COUNSEL : Mr. A.M. Colefax for plaintiff Mr. D. O'Dowd SOLICITORS : Harris & Company for plaintiff Moray & Agnew for defendant CATCHWORDS : Family Provision. Application by an infant child born after the death of deceased. Competition with claim by the deceased's mother who the deceased had promised could live in his house in England. Priority accorded to child's claim and orders made. DECISION : Paragraph 27

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Mr Graham Robert Piercy who died on 23 December 1999, aged thirty-nine years. He was survived by is widow. His daughter, the plaintiff in this action, was born on 18 June 2000, some six months after the death of the deceased. 2 In his will, which was made on 14 November 1999, the deceased, in clause 3, gave a property at 6 Chiltern Road, Barton-Le-Clay, Bedforshire on trust for his mother for her life and thereafter to various nieces and nephews. The residue of his estate went to Fiona Margaret Piercy, his widow, who is the tutor of the plaintiff in the action. 3 The estate consisted substantially of the property in the United Kingdom to which I have referred. There were some life policies and cash and there was also a jointly owned property in Turramurra which was owned by the deceased and the tutor. There has so far been a distribution of about $76,400 to the tutor pursuant to the residual bequest. The estate apparently now consists of the United Kingdom property. That has been valued at £91,000 which, on the present exchange rates, would be approximately $(A)273,000. There is also cash left in the estate of some $7500. 4 Costs have been incurred in a modest amount. The defendant's costs are $14,000 and the plaintiff's $18,880. Strangely, the defendant, who is a solicitor, seems to have distributed the residue without keeping sufficient back to cover the costs of the proceedings. Primarily, of course, under the terms of the will as it presently stands, the residue is the proper part of the estate to bear the burden of any costs, but no doubt the executor will have a right of indemnity against the tutor, who is the residuary beneficiary, in respect of any over-distribution. 5 I will deal with some of the chronology shortly and come back to other matters. The deceased was born on 19 September 1960. His mother moved into the property, which was a Council property, at 4 Dunstall Road, Barton-Le-Clay, in the United Kingdom in 1963. She occupied it along with her family, which included the deceased and his brother. The tutor herself was born on 5 April 1964. 6 In November 1985 the deceased's mother and the deceased purchased a property in Dunstall Road from the local Council. The actual price for the purchase was £31,750, and the purchase price was reduced by a discount of £16,510. This was available to the deceased's mother because she had been a tenant there for twenty-two years. It would not have been available to the deceased. 7 The balance of £15,290 was secured by a mortgage back to the Council. Two years later, in August 1987, the mother's interest was transferred to the deceased and the mortgage to the local Council, which by that stage had reduced to £15,000, was discharged by the deceased. He took out a loan with a building society and used those funds to discharge the mortgage to the Council. From then on, of course, his mother did not have an interest in the property, nor a liability under the mortgage. 8 In 1991, the deceased came to Australia for a holiday. In 1992 he applied for residency in Australia. Later on that year he sold the property in Dunstall Road for £72,500. He then purchased the property at 6 Chiltern Road, Barton-Le-Clay which is the one which is referred to in the will. That was purchased for £40,500. As a result of the sale, the mortgage which had existed over the old property was discharged. His mother moved into the new property, along with some other members of the family, and they have continued to reside there ever since. 9 In September 1995 the deceased migrated to Australia. Early in 1996 the deceased and the tutor commenced a relationship and, in September, they commenced living together. He became an Australian citizen in September 1997 and, in July 1999, the deceased and the tutor married. 10 The will in question was made on 14 November 1999. As I mentioned earlier, the deceased died on 23 December 1999 as a result of a sudden cardiac arrest. Jessica, the plaintiff, was born on 18 June 2000. There has been a grant of probate, the proceedings being within time. The tutor, in July this year, recommenced her work as a barrister's clerk on a full time basis. She is of course, looking after the plaintiff, Jessica. 11 In applications under the Family Provision Act the High Court has in Singer v. Berghouse (1994) 181 CLR 201 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' 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.