Maxwell v Public Trustee [2002] NSWSC 471

New South Wales Supreme Court

CITATION : Maxwell v Public Trustee [2002] NSWSC 471 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 28/05/01 HEARING DATE(S) : 27/05/02 JUDGMENT DATE : 28 May 2002

PARTIES : Andrew MacKenzie Maxwell (By his next friend Kim Hickman) v Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : Mr L. Ellison for plaintiff Mr P Blackburn Hart for defendant SOLICITORS : Carters Law Firm for plaintiff Mr PJ Whitehead for defendant CATCHWORDS : Family Provision. Claim under Family Provision Act by a son who was left out of deceased's will which gave all his small estate to a niece and a nephews. Order for a legacy. No matter of principle. DECISION : Paragraph 30

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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Tuesday, 28 May 2002

3161/01 Andrew MacKenzie Maxwell (By his next friend Kim Hickman) v Public Trustee JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 in respect of the estate in the late Milton MacKenzie Maxwell who died between 20 February and 10 March 2001. The deceased was survived by the plaintiff, his son by his second marriage, his ex-wives and a number of relatives that included five nephews and nieces who take an interest under the deceased will. Will of the deceased 2 The deceased made his last will on 7 May 1992 under which he appointed the defendant his executor and trustee. By that will he gave his estate to be divided between his nieces Rebecca Lyn Fechner, Sarah Maxwell, Rachael Maxwell, Chanel Catherine Leaudais and his nephew Darren Bruce Leaudais. The estate of the deceased 3 The deceased's estate consisted of an interest in his mother's estate and the estate has now been reduced to cash. The balance of the estate held by the Public Trustee is $181,881.56. Both parties have incurred costs. The defendant's costs are estimated at $13,662 and those of the plaintiff are estimated $17,192.55. This leaves a net estate of approximately $151,000. Family history 4 The deceased and the plaintiff's mother, who is also his tutor in these proceedings, met in 1980. In 1985 the deceased divorced his first wife. The deceased and Kim Hickman, the plaintiff's mother, were married on 16 November 1985. The plaintiff was born on 24 August 1986 and the family then lived in Newcastle. 5 In 1987 the deceased commenced employment with a council and in September of that year the deceased and Kim Hickman made mirror wills. In 1989 the deceased and Kim Hickman separated. She moved with her son, Andrew the plaintiff, to the residence of her parents at Harboard where she has lived ever since. The deceased at that time moved into live with his parents. 6 In 1991 there was a divorce and counselling which led to the deceased exercising his rights to access for about six weeks. In May 1992 the deceased made the will I have referred to above. In 1995 Kim Hickman commenced a de facto relationship with her present partner Robert Van Steen. The deceased made some child support agency payments for the benefit of the plaintiff in 1996 through until May 2000. In 1999 the plaintiff enrolled in St Paul's College Manly in Year 7 and he is still at that school. 7 The deceased's mother with whom the deceased was living in his latter years made a will on 18 December 2000. She died on 5 January 2001 and under her will apart from legacy of $1,000, the balance went to her three children which included the deceased. It was as a result of this that the only substantial asset in the estate of the deceased arose. Consideration of the plaintiff's claim 8 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has 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."