Kroegel v Frazer [2001] NSWSC 873

New South Wales Supreme Court

CITATION : Kroegel v Frazer [2001] NSWSC 873 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3401 of 2001 HEARING DATE(S) : 12 and 13 July 2001 JUDGMENT DATE : 13 July 2001

PARTIES : Elizabeth Kroegel & Ors v Gregory William Frazer JUDGMENT OF : Master Macready at 1

COUNSEL : J. Conners for plaintiff Mr L. Ellison for defendant SOLICITORS : Fitzgerald White Talbot for plaintiff Eric Butler for the defendant CATCHWORDS : Fa,mily Provision. - Small estate left to neighbour. - No evidence of widow's needs. - Order for provision made. - No matter of principle. DECISION : Paragraph 34

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of late Karl George Kroegel who died between 17 and 18 July 1999 aged 71 years. The deceased was survived by his wife and four children. By his will dated 24 July 1998 he left all his estate to the defendant and appointed him executor. The defendant was a neighbour of the deceased and had extended help to him in the last few years of the deceased's life. 2 There are very few assets in the estate. In substance the main asset is a half share in the property Lot 14 Mill Lane, Quorrobolong, near Cessnock. The property has an agreed value of $262,000 and after allowing for the cost of sale, one half share would be worth $127,500. The other half share is owned by the deceased's widow. There is some cash available from rent of $1,320. There is farm equipment worth about $3,000 and some stock worth $2,500. 3 There are funeral and other small debts outstanding, slightly in excess of $3,000. 4 The costs of this application, if the plaintiff is successful, will have to come out of the estate. The plaintiff's costs to date are in the order of some $20,000 and those of the defendant are $25,000. This effectively means that the property will have to be sold. There is no suggestion by the widow that she wishes to go back and live there, and from a practical point of view that is the only alternative. There is thus a fund of somewhere around about $80,000 available for distribution. 5 It is useful to deal with some of the history of the matter. The first plaintiff, the deceased's wife, was born on 18 May 1929. She and the deceased married in 1953; they were living in Germany at the time. The son Siegbert was born on 11 October 1960. In 1965 the deceased and the first plaintiff came to Australia. The child Sylvia Robinson was born on 17 July 1965, and Michael was born on 2 March 1967. 6 The family lived in Sydney for many years and the property, which is now in the estate and held by the widow, was purchased in 1971. At that stage the deceased and his wife worked and bought it as joint tenants. A house was built in 1978 and the first plaintiff worked on the farm full time while the deceased himself still worked in Sydney. He would come up to the farm on the weekends. 7 In 1982 the deceased was badly injured in a car crash. He spent a year in hospital and he eventually got over that accident, although he still always had trouble with his back and in doing heavy work. He came back to the farm and by 1984 he had once again started drinking to excess. It is apparent from the evidence that the deceased was a heavy drinker, and this affected him and ultimately affected the relationships with his children and his wife. He was living full time on the farm from 1985. 8 In December 1985 his wife left him because of his drinking and violence, but returned a few days later. It was in late 1986 that it once again became too much for her. She had to leave, and went to live with her daughter in Singleton. She obtained some advice at that stage, and apparently as a result of that advice, because she was concerned about the ownership of the property being held as joint tenants, she arranged for solicitors to severe the joint tenancy. As a result, of course it is now held as tenants in common. 9 The will with which we are concerned was made on 24 July 1998 and that left it all to the defendant. The testator died. He was found in a paddock and died somewhere between 17 and 18 July. 10 In applications under the Family Provision Act the High Court has recently, in Singer v Berghouse (1994) 181CLR 201 set out the two-stage approach 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 with 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.