JONES v THORN [2001] NSWSC 538

New South Wales Supreme Court

CITATION : JONES v THORN [2001] NSWSC 538 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2692/01 HEARING DATE(S) : 22 June 2001 JUDGMENT DATE : 22 June 2001

PARTIES : PETER DAVID JONES & 2 ORS v JOHN STANLEY THORN - Executor of the Estatre of Mary Jeanette Jones JUDGMENT OF : Master Macready at 1

COUNSEL : J.E. Armfield for plaintiff T. Salieri for defendant SOLICITORS : Gells Solicitors for plaintiff Pigott Stinson Ratner Thom for defendant CATCHWORDS : Family Provision. Application under Testators Family Maintenance & Guardianship of Infants Act 1916 by children. Order for provision made. No matter of principle. DECISION : Paragraph 13

- 1 - 1 MASTER: This is an application under the Testator's FamilyMaintenance & Guardianship of Infant's Act 1916. The deceased in this matter died on 25 March 1981. She was survived by her husband, Brian David Jones and her three children who are the plaintiffs in the present action. The deceased made her last will and testament on 2 August 1974 under which she appointed the defendant the executor and she gave a number of bequests. In clause 3 she provided for her residence to be held on trust for her dear husband Brian David Jones for life, he paying the rates and taxes. After his death "for such of my children as shall survive me and be living at the date of death of my said husband". The assets in the deceased's estate include the house at 8 Grandview Street, Naremburn, a half share in the property at Forster, furniture, jewellery and money in banks. Apart from the house at Naremburn the other assets passed under the will mainly to the husband, Brian David Jones. 2 What has happened is that in the last few years the husband, Mr Jones, has moved out from the Naremburn property and he is now living at the property at Lakes Way, Forster. The Naremburn property is unoccupied. It is accruing rates which are not paid, and is falling into disrepair as the estate has no funds with which to maintain the property. The problem under the will is that there is no provision for what should happen in the event that the husband vacates the property and of course there is no vesting until after the death of the husband. He has a further life expectancy at this stage of another 15 years. 3 It is in these circumstances that the plaintiffs have brought the application under the Act seeking provision of the whole of the property to be given to them. There is of course always the possibility that the three children, who are now alive and well, may not survive their father in which case questions of intestacy in respect of the interests in the remainder will arise. However, I have to deal with the present application which is an application under s 3 of the Testator's Family Maintenance & Guardianship of Infant's Act 1916. In order to do that it is necessary firstly to determine whether the plaintiffs have been left without proper provision as at the date of death of the deceased. In the context of what provision ought to be made, one looks at the matter as at the time of the hearing. I turn to the position of the relevant children. 4 Peter David Jones is now 40 years of age. He was 20 years at the date of the death of the deceased and his only assets at that stage was a motor vehicle worth $3,000, and tools, and he had a small income per week. The situation has changed. He is now a motor mechanic and workshop manager with a firm in Queensland. He is married and he is in a modest situation. He has a house worth $160,000 with a mortgage of $160,000. He has a rental property in which he has an equity of $12,000, a motor vehicle and home contents. His wages are modest and substantially consumed by mortgage payments and his negatively geared property provides him with virtually no income. 5 In respect of the plaintiff Neal Andrew Jones, he is 39 and he was only 19 years old at the date of death of the deceased. At that time he had a car worth $4,500, with a subsequent loan of $3,000 and he had a small income having started work. He is now employed as a fire fighter with the New South Wales Fire Brigade. He is married and his circumstances are somewhat better but still modest. He has a house at Wahroonga worth $450,000, subject to a mortgage of $125,000. He has two motor cars and a small number of shares and his home contents. His wages cover his mortgage outgoings and effectively most of his income is used for maintaining his family. 6 Alison Gay Jones is 32 and she was 12 years of age at the date of death of the deceased. She had no assets at that stage and at that age was totally dependent upon the deceased and also her father. Her present situation has improved in that she has a car. She has a large personal loan, some shares and personal contents. She lives in rented accommodation. 7 It is important also of course to consider the situation of the husband. He is now 67 and was 47 years of age at the date of death of the deceased. He received at that stage the property at Lakes Way, Forster, and he had an income at that stage of about $1,500 a month and expenses of quite substantially less than that, about $967. He had a motor vehicle. He had been then earning an adequate wage and had some assets as a result of provisions made for him in the deceased's will. The situation now is somewhat better. He is on the pension and he has a government pension of $280 a fortnight, self funded superannuation of $833 per month, which is substantially more than his outgoings which are fairly minimal. He has a car, a house at Forster worth $110,000, lump sum superannuation worth $130,000 and home contents. He does at this stage have the life interest in the property at Naremburn but that is an interest which is decreasing and will decrease rapidly given that he has made it clear that he does not intend to return and does not wish to receive the income from it. He has not paid rates and insurance or outgoings on it since 1999. He himself wishes the property to go to his three children. 8 It is only the executor's caution, quite properly, in not consenting to the application which means that the matter has to be dealt with on a contested basis. If one looks at the situation as at the date of death, one has the children who had minimal assets. There was the husband who had more than sufficient income to support the family with some spare, and who also had another property at Forster. In those circumstances it would seem that at least some minimal provision for the children, if the application had been then made, might have been made to the extent that something was necessary for their education at that stage. They were young, one of them was twelve, and there was sufficient to enable there to be a modest provision made for the children. Accordingly I am satisfied that they were left without adequate provisions for their proper maintenance, education and advancement in life. 9 In terms of what order is appropriate now, obviously the circumstances have changed substantially. I have dealt with the circumstances of the three children. They were in different stages of affluence, some minimally affluent and other subject to mortgages. I am satisfied that it is appropriate that some provision should be made for them and it is clear from the attitude taken by the father that he wishes them to have the property. In these circumstances I am satisfied that it is appropriate that there should be provision for the whole of the property to pass to the plaintiffs. 10 Obviously the present application is out of time and there is evidence before me from all of the plaintiffs that in effect they were young and did not anticipate what changes would occur in the future and were not aware of their rights to make an application under the Act. In the circumstances I am prepared to extend time under s 5. 11 I make order 1 in the short minutes which I have signed and dated today. 12 I make order 2 in those short minutes noting that in the second part of the order there is inserted a form of words on the attachment to the short minutes which I will also sign and date and place with the papers. 13 I make orders 3 and 4 in the short minutes. 14 I order the exhibits to be returned.