PATRICK v MANNING [2002] NSWSC 168

New South Wales Supreme Court

CITATION : PATRICK v MANNING [2002] NSWSC 168 CURRENT JURISDICTION: 1592/01 FILE NUMBER(S) : SC 1592/01 HEARING DATE(S) : 26/02/2002, 27/02/2002 JUDGMENT DATE : 28 February 2002

PARTIES : JAYNE SUSAN PATRICK v JACQUELINE MICHELLE MANNING - ESTATE OF NOEL RAYMOND MANNING JUDGMENT OF : Master Macready at 1

COUNSEL : Mr S. Hughes for plaintiff Mrs M. Bridger for defendant SOLICITORS : Oliver Campbell for plaintiff Smyth, Turner & Wall for defendant CATCHWORDS : Family Provision. Claim by a daughter under the Family Provision Acjt 1982 in respect of a small estate which had been left to the widow of 20 years standing. Claim dismissed. DECISION : Paragraph 49

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

MASTER MACREADY

THURSDAY 28 FEBRUARY 2002

1592/01 - JAYNE SUSAN PATRICK v JACQUELINE MICHELLE MANNING - ESTATE OF NOEL RAYMOND MANNING

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Noel Raymond Manning who died on 4 September 2000 aged sixty-five. The deceased was survived by his first wife, two of his children, a former de facto partner, and the defendant, his second wife. The plaintiff is one of his two surviving children. 2 Under the will, which the deceased made on 6 December 1994, the deceased left the whole of his estate to his widow and appointed her sole executrix. He bequeathed $10 to each of his three children. Two weeks beforehand he made a holograph will which substantially repeated that provision, with additions to which I shall refer in due course. 3 At the date of death the estate as sworn consisted of vacant land Lot 492 Main Road, North Rothbury, now worth $135,000; cash of $2,246, and a truck and car worth in total $6,000. There are also three greyhound dogs and two pups, a speedboat with a trailer. 4 The cash has apparently gone on administration expenses and there is no evidence that any of the personal property is of any great value. The estate thus effectively comprises the vacant block of land. 5 At the date of his death the deceased owned as joint tenant with the defendant Lot 493 Main Road, North Rothbury upon which was erected their unfinished home. That home is presently worth $260,000. 6 The plaintiff has incurred costs to date of some $43,000, and the defendant $36,710. 7 I turn to deal with the chronology in the matter. The deceased was born on 16 May 1935 and the defendant, his widow, was born on 8 November 1947. In 1956, after the marriage of the deceased to his first wife Faye Green was over, the deceased commenced a de facto relationship with the plaintiff's mother, Rita June Manning. 8 The plaintiff herself was born on 13 November 1960. The deceased and the plaintiff's mother, together with the plaintiff, lived in Sydney up until about 1970 and then the plaintiff purchased the two properties being Lots 492 and 493 Main Road, North Rothbury. Shortly after this, the deceased and the plaintiff's mother separated. The plaintiff herself went to live with her mother at Weston, which is about twenty miles away from North Rothbury. The deceased continued to live at North Rothbury. 9 In or about 1973 to 1974 the testator commenced a de facto relationship at North Rothbury with Mary Willhemina Parry. She was also known as "Billy". In 1974 the plaintiff stayed with the deceased and Mrs Parry for three months or so. She then went to Kempsey with her mother. 10 In 1976 the plaintiff moved back in at North Rothbury and lived with her father and Mrs Parry until 1977. At that stage, following disputes between the deceased and Mrs Parry, Mrs Parry and the plaintiff moved into a caravan at Cessnock Showground. The plaintiff's first daughter Sarah Jayne was born on 23 July 1979. 11 At about this time the deceased bought a cafe known as the Bus Stop Cafe at Cessnock. That was the cafe in which Mrs Parry was working. In 1980 the deceased divorced his wife Faye Green. Also in 1980 the plaintiff's mother moved in with the plaintiff with her then de facto partner, Stephen Patrick. The plaintiff married Stephen on 14 February 1981. They had three children of their union, Stephen born in 1984, Holly Noelle born in 1986, and Nicole Rose born in 1991. 12 On 12 June 1981 the deceased married the defendant. In 1993 the deceased sold five acres from one of the lots and raised a sum of $105,000. That was used to build a house on Lot 493. 13 On 16 November 1994 the deceased was charged with sexual offences relating to the daughter of Mrs Parry. On 28 June 1995 the committal proceedings occurred and he was remanded to stand trial in the District Court on 30 September 1995. The case ultimately did not proceed and the deceased was acquitted. 14 There are a number of matters relating to statements made by the plaintiff in support of the police case, to which I will come in due course. A week or two later, on 26 November 1994, the deceased made the holograph will to which I have referred and in that he had this to say about his children: "Teri Anne: 'Doesn't want to know me.'