McLean v Public Trustee [2001] NSWSC 970

New South Wales Supreme Court

CITATION : McLean v Public Trustee [2001] NSWSC 970 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4753 of 1999 HEARING DATE(S) : 29/10/01 JUDGMENT DATE : 29 October 2001

PARTIES : Joy McLean v Public Trustee - Estate of Jean Mildred Uncle JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M.S. Willmott for plaintiff Mr A.G. Hill for defendant SOLICITORS : Eric Butler for plaintiff P.J. Whitehead for defendant CATCHWORDS : Family Provision. - Claim by a daughter with gambling problem. - Order made for a legacy upon conditions as to its use. DECISION : Paragraph 24 and 25

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1 MASTER: This is an application under the Family Provision Act by the daughter of the late Jean Mildred Uncle, who died on 13 July 1999. The plaintiff is the daughter of the deceased. The deceased was survived by her children and a number of grandchildren. The deceased made a will on 14 November 1997 in which she gave $2000 each to certain of the grandchildren, $12,000 to her two daughters and son - that is $12,000 each - and $12,000 to be divided between three named grandchildren. The rest of the estate was to be held for eleven named grandchildren who survived and attained twenty-five years of age. Effectively, there are legacies of some $54,000 with residue being divided between eleven named grandchildren. 2 The estate has been reduced to cash in an amount of $219,425. The plaintiff's costs which have been incurred amount to some $30,000, the defendant's $20,000. 3 I will deal with a little of the history first. The deceased was born on 25 October 1922. Her son was born in 1948 and the present plaintiff was born on 25 November 1949. Her two other daughters were born in the 1950s. The plaintiff herself commenced working as a nurse at Camperdown Children's Hospital in about 1966. She failed and then had a child in April 1970. She married John McLean in 1973 and had a number of children as a result of that marriage. In 1978 she left her husband and returned to the deceased's house. In 1981 the deceased purchased a house at Werribee in Victoria. The plaintiff's father died in 1987. The plaintiff herself was divorced in 1988. In 1988 she was dismissed from employment with TNT for stealing funds. At that stage the deceased allowed the plaintiff to live in the house at Werribee in Victoria which had been purchased. 4 The plaintiff had a gambling problem which affected her for a substantial part of her life. She does not dispute this. She gave evidence that between 22 May 1996 and 4 February 1997 she attended a live-in rehabilitation course with the Salvation Army. That was as a result of her giving an undertaking to the Court to do so in respect of an offence which she had committed. She was asked to leave that course before completing it as apparently it could not help her. 5 The deceased's house at Werribee had been put in the names of the children of the deceased, including the plaintiff. That was ultimately sold some time prior to September 1997 and the proceeds divided up between the children. The plaintiff received a lesser share because of the fact she had not paid the rates for some time and there were costs involved with cleaning out the house. She received $8860 on 19 September 1997. It is apparent from her bank statements that the whole of that was dissipated by 5 November 1997 when she had $10 left in the bank account. Apart from $500 spent on an engine for a car, basically the money was all used for gambling. The deceased became aware of this, having opened a bank statement of the plaintiff's. She changed her will and made a new will to which I have referred. At the time of giving instructions for the will, she stated to the Public Trustee that the plaintiff had a gambling problem and had recently gone through $9000- worth of proceeds of the sale. The deceased said she would provide further instructions in a sealed envelope, that these in fact were not provided. 6 The deceased died on 13 July 1999. Probate was granted to the Public Trustee and the summons filed in time. In October 2000 the plaintiff remarried. 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 p 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' et cetera 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 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.