McIntosh v Blatch [2002] NSWSC 403

New South Wales Supreme Court

CITATION : McIntosh v Blatch [2002] NSWSC 403 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1680/99 HEARING DATE(S) : 30/04/02 JUDGMENT DATE : 10 May 2002

PARTIES : Doreen McIntosh v Walter Blatch - Estate of Charles Joseph O'Kane JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P. O'Loughlin for plaintiff Mr. M. Bradford for defendant SOLICITORS : Ray Capner for plaintiff Mack & Associates for defendant CATCHWORDS : Family Provision. Application by a de facto widow. Consideration of principles applicable. Designation of property as notional estate and consideration of where the burden of any increased provision should fall. Order for increased legacy in favour of the plaintiff. DECISION : Paragraph 36

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

Master Macready

Friday 10 May 2002

1680/ 99 DOREEN McINTOSH v WALTER BLATCH (ESTATE OF CHARLES JOSEPH O'KANE) JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of late Charles Joseph O'Kane who died on 19 July 1998 aged 65 years. The deceased was survived by the plaintiff who was the de facto partner of the deceased from 1979 until the date of death. The deceased had never married and had no children. The deceased's will 2 The deceased made his last will on 17 July 1998 under which he appointed the defendant, a personal friend, as the executor and trustee. The deceased gave the plaintiff a legacy of $50,000. He made a number of specific bequests under his will. To Mr and Mrs English, local friends, a property 9 Abelia Street, Tahmoor. To other friends, the defendant and Mrs Blatch, he gave a property at 231 Menangle Street, Picton. He gave a number of small legacies to various friends amounting to $13,000 and he gave the residue of his estate to his brother, John O'Kane. The nature of the estate 3 The various assets in the estate and their present values are as follows:- 231 Menangle Street, Picton $245,000 Accrued rental on Picton 12,000 9 Abelia Street, Tahmoor 235,000 Accrued rental on Tahmoor 4,200 Northern Building Society Account 125,000 Illawarra Mutual Building Society 60,361 Subaru motor vehicle 8,000 Cameras and lenses 1,588 Total $691,149 4 From this estate are to be paid the legacies of $63,000, the defendant's costs of $33,000 and the plaintiff's costs of $43,298. The total of these liabilities $139,298. 5 Both houses have been transferred to the beneficiaries and the Northern Building Society account has also been transferred to the residuary beneficiary John O'Kane. He resides in Queensland and like the beneficiaries who received the properties, he has given an undertaking not to disburse such property or proceeds pending the hearing of this matter. The transfers were made before a claim against the estate was made. That claim to which I will refer later has depleted the remaining estate. In addition the Subaru car and the cameras and lenses have been distributed. 6 I will deal with a little of the background history and chronology. The plaintiff was born on 23 January 1927 and the deceased on 13 February 1933. The plaintiff married Charles McIntosh in 1962 and they purchased a property in Menangle Street, Picton in August 1967. The plaintiff's husband died in April 1971 and she continued to live in the property at Menangle Street, Picton where she still resides. After the death of her husband she started to take in boarders in order to make ends meet. The deceased was one of these boarders and he came to board in the house in September 1978. 7 About March 1979 the plaintiff and the deceased commenced a de facto relationship with them both continuing to live in the plaintiff's house in Menangle Street. In September 1981 the plaintiff made a will in which she benefited the deceased's brother, John O'Kane. In 1989 she made a will in favour of the deceased. In June 1996 the plaintiff retired and received a benefit of $51,000 in superannuation. 8 On 22 June 1998 a summons was issued against the deceased and later served on him. The summons dealt with matters that caused the deceased great concern and was proceedings to obtain an apprehended violence order against him. A week before 17 July 1998 the plaintiff and the deceased discussed their wills. On 14 July 1998 the deceased transferred the sum of $12,000 from his investment account to an account of the plaintiff. On 16 July 1998 he prepaid his and the plaintiff's funeral expenses. The plaintiff's will and the deceased's will were made on 17 July 1998. On 19 July 1998 the deceased committed suicide and the plaintiff found he had hanged himself in her backyard that morning. This was the day before the summons for the apprehended violence order was returnable before the Local Court at Liverpool. The evidence discloses that the deceased made it abundantly plain that the charges against him were untrue. They also caused him considerable distress in the weeks leading up to his death. 9 On 21 July 1998 the plaintiff transferred $9,000 from the deceased's IMB account to her own account. Shortly before his death the deceased had made her a signatory to that account. 10 On 23 October 1998 probate was granted to the defendant. On 7 November 1998 the plaintiff informed the defendant that she proposed to bring a claim for further provision against the estate. In that month the deceased's personalty was transmitted to the beneficiaries and in December 1998 the executor transferred the two items of real estate to himself and the other beneficiaries. In that month the deposit with the National Mutual was also transferred to the residuary beneficiary. 11 The summons was filed on 15 March 1999 and various undertakings were given not to distribute the assets in June 1999. In May 2000 an action for damages by the complainant in the criminal matter was commenced against the estate in the District Court. After obtaining advice from the Court pursuant to s 63 the defendant settled the action in the sum of $100,000 plus agreed costs of $48,422 which were paid from assets in the estate. The assets which I have set out above in the estate of the deceased are ones remaining after the payment of this liability. 12 In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage process the 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.