Mayer v Whittingham [2001] NSWSC 985

New South Wales Supreme Court

CITATION : Mayer v Whittingham [2001] NSWSC 985 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4509/99 HEARING DATE(S) : 31/10/01 JUDGMENT DATE : 7 November 2001

PARTIES : Yvonne Maria Mayer v Ken Whittingham - Estate of Trevor Shade JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A. Enright for plaintiff Mr J. Wilson for defendant SOLICITORS : Harris Hyde Page for plaintiff Deacons Lawyers for defendant CATCHWORDS : Family Provision. Application by a daughter who was given half of deceased's estate. Discussion of obligation of a parent to a child and the need for evidence to quantify claim for provision. - Application dismissed. DECISION : Paragraph 25

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Trevor Shade who died 21 May 1999 aged 79 years. The deceased was survived by his daughter, Yvonne Mayer, who is the plaintiff in these proceedings. The deceased made his will on 15 December 1998 and probate was granted to the defendant in July 1999. That will gave certain items of personalty in clause 4 to Warwick Purcell a friend of the deceased. Clause 5 then provided:- "I direct my trustee to divide my estate as follows:- "(1) To my daughter, Yvonne Mayer 50 % of my estate. (2) To my friend, Warwick Jack Purcell 20% of my estate. (3) To the Vietnam Veterans Association of Australia New South Wales Incorporated being Registered Charity No. CC 24654 5% of my estate. The receipt of the charity's secretary or treasurer is a sufficient discharge to my Trustee for payment. (4) To St Catherine's Aged Care Services of Balaclava Road Eastwood the rest and residue of my estate. The receipt of the charity's secretary or treasurer is a sufficient discharge to my Trustee for payment." 2 By the time of his death the deceased's house had been sold and his estate reduced to cash. At the date of hearing the estate assets total $517,000. There have been costs incurred on the plaintiff's part amounting to $42,000 and on the defendant's part amounting to $51,750. 3 I will deal with some of the family history in order to give context to the matter. The deceased was born on 24 September 1919 and he married on 24 December 1938. The plaintiff, the couple's only child was born on 3 June 1940. In 1942 the deceased and the plaintiff's mother separated. The mother and the plaintiff moved to Mitchell's Flat and stayed with the mother's parents. After separating the deceased joined the army and served in the army throughout the war. It was not until May 1949, after the war, that the plaintiff saw her father again. On that occasion he met her and stayed with her grandparents at Mitchell's Flat for a few weeks. In 1951 the plaintiff again met her father when his ship docked at Newcastle. By then he was actively engaged in matters that took him away. At this stage the plaintiff had moved to Charlestown in Newcastle where she was living with her mother. In 1953 the deceased married his second wife, Freida Shade. They lived at Leichhardt and there were no children of that marriage. In 1954 the plaintiff left school and over the subsequent years travelled around Australia, completed some further education and stayed in Newcastle. In 1966 she moved to Sydney where she was employed as a sales person at Yates Seed & Co. 4 In 1969 the plaintiff was living with Karl Mayer and the plaintiff's first child, Karleena was born 28 November 1970. Her second child Sabina, was born on 18 March 1972. The relationship did not last and she separated from Karl Mayer in 1973. Thereafter she lived in Housing Commission accommodation in Newcastle and subsequently in Sydney. In 1991 she moved into a Housing Commission house at Waterloo with her children. In 1994 she suffered a mental breakdown and by 1995 she was receipt of a disability pension as result of these problems. During the whole of the period from about 1951 onwards the plaintiff was in regular contact with the deceased and had a good relationship with him. 5 In December 1995 the deceased suffered two strokes and this led to some personality disorder when he was admitted to Ryde Hospital. The personality disorder which he seemed to suffer from led him in 1996 to reject the plaintiff and he refused to see her. The deceased was admitted to Balmain Hospital in September 1996 and at this time he started to see his daughter's children Karleena and Sabina. In October 1996 he made a will in which he divided his estate between the plaintiff and her daughters. He also gave a Power of Atorney to Karleena, his granddaughter. He was discharged from hospital in October 1966 and stayed with his granddaughter Sabina at the house in Waterloo. He was again admitted to Rozelle Hospital later in October and was discharged in December. He ultimately died in 1999. 6 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a 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.