Ogden v. Green [2003] NSWCA 352

New South Wales Court of Appeal

CITATION : Ogden v. Green [2003] NSWCA 352 HEARING DATE(S) : 24 November 2003 JUDGMENT DATE : 24 November 2003

JUDGMENT OF : Sheller JA at 14, 16; Hodgson JA at 1; Ipp JA at 15 DECISION : Appeal dismissed with costs.

CATCHWORDS : SUCCESSION - FAMILY PROVISION - Claim by adult daughter - Whether provision excessive PARTIES : Ronald John Ogden - appellant Diane Gloria Green - respondent FILE NUMBER(S) : CA 40599/03 COUNSEL : Mr. J. Wilson SC for appellant Mrs. M.A. Gilmour for respondent SOLICITORS : Hunt & Hunt, Sydney for appellant Molly & Schrader, Sydney for respondent

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT SC2505/02 FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40599/03 SC 2505/02

SHELLER JA HODGSON JA IPP JA

Monday 24 November 2003 OGDEN V. GREEN Judgment 1 HODGSON JA: The late Ronald Edgar Owen died on 28 January 2002 aged eighty-nine. He was a widower and he was survived by two children, a son aged forty-four, the appellant, and a daughter aged forty-three, the respondent. 2 He left an estate of about $2.5 million. By his last will dated 8 July 1997 he appointed the appellant his executor, and in the events that happened, left his whole estate to the appellant. The respondent brought Family Provision Act proceedings against the appellant, and on 24 June 2003 Master McLaughlin ordered that the respondent receive a legacy of $461,000 and ordered that her costs on a party and party basis be paid out of the estate. 3 The appellant appeals to this Court on the following grounds: 1. The Master erred in that he ordered that the Respondent receive a legacy in a sum which exceeded what was necessary to make adequate provision for the Respondent's maintenance and advancement in life. 2. The Master erred in that he equated the Respondent's claim to that of the spouse of a Testator. 3. The Master erred in that he failed to give any or any proper weight to the following matters: (a) The Respondent was a married woman living with her husband at the date of hearing. (b) The Respondent was in paid employment at the date of the hearing. (c) The poor quality of the relationship between the Testator and the Respondent. (d) The Testator's reasons for not making greater provision for the Respondent. 4 The Master found that there was no other person, apart from the two parties, with a legitimate claim on the estate, and the appellant did not offer any evidence concerning his financial and material circumstances. Accordingly, although the appellant by virtue of his close relationship to and assistance of the deceased had a legitimate claim on the estate, that legitimate claim was not supported by any actual need. 5 The respondent's situation was as follows. She was married in 1979 and there were two children of that marriage. One was a single mother who with her daughter resided with her parents, the other was in full-time employment but also resided with her parents. The family resided in rental accommodation in Mandurah, Western Australia, about eighty kilometres south of Perth. They had no significant assets apart from a motor vehicle and furniture and effects. They had debts of about $34,000. The respondent was employed in a bakery, having a net weekly income of $465 for a forty-hour week and $565 for a forty-eight hour week. The respondent's husband was unemployed and not in receipt of social security because of the respondent's income. He had in fact had a history of unsuccessful business concerns, and that had led in the past to debts and bankruptcy. 6 The Master held that the respondent had been left without adequate provision for her proper maintenance, and he calculated the amount which ought to be provided for her maintenance as follows: an amount to assist in the purchase of a house $250,000; furniture and whitegoods $12,000; replacement motor vehicle $15,000; discharge of debts $34,000; funds for contingency $150,000.