BLANCHARD v CAMERON [2000] NSWSC 192

New South Wales Supreme Court

CITATION : BLANCHARD v CAMERON [2000] NSWSC 192 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2418/99 HEARING DATE(S) : 02/03/2000 JUDGMENT DATE : 17 March 2000

PARTIES : Elizabeth May Blanchard v Lynne Cameron JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A.J. Philpot for plaintiff Mr M.S. Willmott for defendant SOLICITORS : Michael G. Britten, Merimbula, for plaintiff Coleman & Greig, Parramatta, for defendant CATCHWORDS : Family Provision. Claim by widow. Opposition by daughter of first marriage of the deceased. Consideration of appropriate costs orders. Order that plaintiff receive substantially the whole estate. Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Golosky & Anor v Golosky (unreported 5.10.93) Elliott v Elliott (unreported 29.4.86) Court v Hunt (unreported 14.9.87) DECISION : Paragraph 27

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

MASTER MACREADY

FRIDAY 17 MARCH 2000

2418/99 ELIZABETH MAY BLANCHARD v LYNNE CAMERON

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late George Albert Blanchard who died on 16 April 1998 aged 73 years. The deceased was survived by the plaintiff, his widow, two children from his first marriage and a number of children from the plaintiff's first marriage. 2 By his last will and testament made 8 April 1998 the deceased appointed his brother-in-law and his wife executors. Both have renounced probate and Letters of Administration for the purpose of making this application have been granted to the plaintiff. Under the will the estate was given to the deceased's trustees upon trust to permit his widow, the plaintiff to reside in his principal place of residence during her lifetime she keeping it in good repair. Apart from a bequest of some items of personal use to his adopted son, Jason Blanchard and a gift of some shares of no value to Paul Andrew Blanchard the residue of the estate was held for his daughter Lynne Cameron and Jason Herbert Blanchard as tenants in common in equal shares. In the absence of any executors the said Lynne Cameron was appointed a defendant in the proceedings. 3 The deceased's estate consisted of his home at 4 Booroo Street, Pambula Beach which is valued at $248,000 together with some tools of little value, personal items and shares in B.D. Instruments Pty Ltd valued at $2.00. The debts at the date of death of the deceased plus funeral expenses amounted to $4,700. Unfortunately there has been this litigation and the plaintiff will incur legal costs of some $16,5000. Those of the defendant are estimated at $9,645. As is evident there are no funds in the estate to meet any of these costs. 4 The deceased and the plaintiff were married on 6 October 1973 in Melbourne. The plaintiff was then 40 years of age and the deceased 48 years of age. From her first marriage the plaintiff had two children, Glen Morgan and Robin Arthur Morgan, twins, both now 45 years of age, Ian Donald Morgan now 43 years of age and Tracy May Dosser now 40 years of age. She also had a further child on 21 December 1970, Jason Herbert Blanchard, who was adopted by the deceased. The deceased himself had two children by first marriage, namely, the defendant, Lynne Cameron, now 51 of age and her brother Paul Andrew Blanchard now 41 years of age. After the deceased and his second wife, the plaintiff, were married they built a home in Altona in Melbourne where they lived until 1991. A number of their children lived with them and these have been given notice of the proceedings in case they may be eligible persons. None of them makes a claim on the estate and, indeed, the plaintiff's sons support the plaintiff's claim. 5 After the marriage the deceased continued with his work as a self-employed electrician. The plaintiff was engaged in full time domestic duties looking after the children until she was engaged in the years between 1979 and 1983 in running a milk-bar. The deceased retired in 1988 when he was 63 years of age and he and the plaintiff moved to Pambula Beach in 1993. They lived in a property which had been purchased many years earlier and on which they had erected a holiday home. At the time of the move they sold their home in Altona at a somewhat reduced price to the deceased's son, Paul Blanchard. The funds were used to renovate the house at the Pambula Beach property which is now held in the estate. $40,000 of the funds were used by them to build a granny flat behind a home of the plaintiff's daughter, Tracy Dosser at Werribee in Victoria. It appeared in the evidence before me that such addition was upon terms that if Tracy Dosser and her husband sold that property the deceased would receive something back from them. There was no agreement as to what amount was to be received and her daughter, Tracy, still owns the property. There are no plans for the sale of the property and it would seem unlikely given that Tracy's children are presently aged 11 and 16. 6 The deceased's will was executed on 28 April 1998 as I have recounted which was the day the deceased went into hospital shortly before his death. The wills were prepared as a matter of urgency and it is apparent from the evidence before me that the deceased indicated that the wanted the property to be left as to one half to the plaintiff, a quarter to Jason and a quarter to Lynne with the plaintiff having the right to reside in the Pambula property for her lifetime. This is not what resulted in the will executed by the deceased. 7 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. 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."