McGUIGAN v PUBLIC TRUSTEE [2001] NSWSC 602

New South Wales Supreme Court

CITATION : McGUIGAN v PUBLIC TRUSTEE [2001] NSWSC 602 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2913 of 2000 HEARING DATE(S) : 28 June 2001 JUDGMENT DATE : 28 June 2001

PARTIES : COLLEEN JEAN McGUIGAN v PUBLIC TRUSTEE JUDGMENT OF : Master Macready at 1

COUNSEL : Mr J.R. Wilson for plaintiff Mr L. Ellison for defendant SOLICITORS : Gibson Owen Lawyer for plaintiff Public Trustee for defendant CATCHWORDS : Family Provision. Application by a daughter. Whole estaqte passes to a son. Orders for legacy made. No matter of principle. DECISION : Paragraph

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Percival Thomas Griffiths who died on 28 November 1999. He is survived by two children, William Griffiths, and the plaintiff Colleen Jean McGuigan. The deceased's wife had pre-deceased him. 2 The deceased made his last will on 15 July 1981. Under his will he appointed the Public Trustee as executor and he left his estate to his wife, Jean Griffiths, provided she survived him by thirty days. As I have mentioned she had pre-deceased him, and the substitution gift was in favour of the son, William Griffiths. 3 The deceased left an estate which comprised a home unit at Randwick which is estimated at a value of $400,000 and bank accounts which now have been realised and are in the amount of $19,526. 4 There have been a number of costs incurred in the matter. The defendant's costs will amount to some $12,000 and those of the plaintiff $18,195, a total of $30,195. There is also commission which will have to be paid of some $10,000. Effectively, cash will have to be found in excess of the cash in the estate in the order of $20,000. 5 I will just briefly deal with some of the chronology. Mr Griffiths, the deceased's son, was born on 31 December 1944, the plaintiff on 10 September 1951. The plaintiff married in 1972 and she had two children by that marriage who were born in 1976 and 1978. In 1981 the deceased made his will. 6 In 1991 the plaintiff and her husband, Kevin McGuigan, separated. They were then living in Coffs Harbour. The next year the plaintiff returned to Sydney and she obtained work as a legal secretary. She obtained a law qualification in due course in 1995. Her daughter, Karen, at that stage lived with her and during this period Karen was diagnosed with schizophrenia. 7 In June 1995 the plaintiff purchased her unit at Mount Street, Coogee, for $230,000. She had cash for most of the purchase price from the property settlement and she borrowed $15,000 from her brother, William. 8 Having not been able to set herself up in private practice at law, she went into various government departments in 1998. Her mother died in November of that year. In June 1999 Karen, the plaintiff's daughter, moved out into separate accommodation. The deceased died, as I have mentioned, in November 1999, and these proceedings were commenced within time. 9 The plaintiff, in January 2000, obtained work with the Department of Industrial Relations, a position which she still holds. 10 In applications under the Family Provision Act the High Court has recently 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 inter-relationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Company 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 these circumstances, was the proper level of maintenance et cetera 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.