Porritt v Maguire [2002] NSWSC 115

New South Wales Supreme Court

CITATION : Porritt v Maguire [2002] NSWSC 115 revised - 12/06/2007 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4432 of 2000 HEARING DATE(S) : 08/02/2002 JUDGMENT DATE : 1 March 2002

PARTIES : JACK PORRITT v GARY MAGUIRE, JUDGMENT OF : at 1

COUNSEL : Mr CJ Bevan for plaintiff Mr P Dowdy for defendant SOLICITORS : Turner Freeman for plaintiff Bray Jackson for defendants CATCHWORDS : Family Provision. Application by an adult son. Modest estate passes to the de facto widow of 20 years standing. Small legacy awarded. DECISION : Paragraph 64

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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday, 1 March 2002

4432/2000 JACK PORRITT v GARY MAGUIRE, JESSIE WILLIAMS & SUSAN FRANCES MAGUIRE – ESTATE OF RONALD MAPLEDORAM JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Ronald Mapledoram who died on 29 July 1999 aged 80 years. He was survived by his only son the plaintiff. He was also survived by his second wife from whom he had separated in 1974 and the second defendant who lived with the deceased as his de facto wife for 20 years up until the deceased's death. 2 The deceased made his last will on 20 November 1998. Under that will he gave the whole of his estate in the circumstances which have happened to Jessie Williams the second defendant. He appointed his son-in-law to be the executor and trustee of his will. The son-in-law, Gary Maguire, is the first defendant in these proceedings. His wife, Susan Maguire, is the third defendant she having been added because of some claims in respect of notional estate which I will refer to later. 3 The only asset in the estate of the deceased was his half share in his home at 16 Arden Street Waverley. That property was held by the deceased with his second wife, Nancy Mapledoram. The property was sold and the deceased's estate became entitled to one half share of the sale proceeds. The one half share amounted to $271,930. After the sale these proceeds which were to be held for the second defendant were paid by her direction to Gary and Susan Maguire. According to Susan Maguire the purpose of the payment was so that she and her husband could add to their house to provide future accommodation for her mother Jessie Williams. After the payment to Gary and Susan Maguire at the direction of Jessie Williams $20,000 was paid to each of their children to enable them to purchase a unit as an investment in June 2000. The three children purchased the unit at Botany using $60,000 from these funds. 4 The sale of the property and the distribution all took place before proceedings were commenced and, indeed, before the plaintiff found out about the death of the deceased. 5 Costs have been incurred in the present matter. The plaintiff has incurred $13,389 and the defendant has incurred $23,000 for costs. 6 I will deal with some of the history in the matter. Mrs Williams, the second defendant, was born in 1915. The deceased was born in 1919 and he married for the first time on 29 March 1941. He married Doris Perinoni but unfortunately that marriage did not last. The plaintiff was born on the 19 October 1943 and his parents separated when he was about one and a half years old. His parents were divorced on 31 August 1945. Susan McGuire, the daughter of the second defendant, was born 19 May 1944. 7 After the separation of the plaintiff's parents the plaintiff continued to live with his mother. His mother refused to allow his father, the deceased, to see the plaintiff while he was growing up. Between 1949 and 1959 the deceased paid maintenance for the plaintiff to his wife. Such maintenance was fairly substantial and amounted to approximately one-third of the deceased's income. On 15 July 1950, Doris Mapledoram, the plaintiff's mother married Walter Porritt. On 28 October 1959 the plaintiff changed his name by deed poll from Jack Mapledoram to Jack Porritt. As he was then only 16 he would have needed his mother's approval for that change. The deceased had remarried on 3 December 1949 when he married Nancy Potter. 8 In the early 1960s the plaintiff's mother called the deceased to inform him that the plaintiff was to be married. The deceased was not invited to the wedding but he and his new wife, Nancy Mapledoram, went to the church to watch the ceremony. The deceased did not speak to the plaintiff on this occasion. In the early 1960s, after the plaintiff's marriage, the plaintiff and a lady friend called at the deceased's residence. The lady friend was not his wife as the plaintiff had apparently separated from his wife. The visit was a brief one and was followed some six months later by another brief visit from the plaintiff to the deceased. 9 In October 1974 the deceased and Nancy Mapledoram separated. In the whole of the period that the deceased and Nancy had been together, namely, from 1949 to 1974 the plaintiff only saw the deceased on two occasions. In a phone conversation after the separation the testator had said to the plaintiff that he proposed to spend all his money but that he wanted the plaintiff to have his house. In early 1975 the deceased and Mrs Williams commenced to go out together. They commenced living together in a de facto relationship in 1980. The deceased and Mrs Williams each had properties and accordingly they would divide their time each week between the two properties. This de facto relationship continued until the date of the death of the deceased. 10 In approximately 1982, before the plaintiff moved to Queensland, the plaintiff went to meet the deceased. The deceased ceased work and retired in 1984. On 24 June 1996 the deceased made a will in which he gave his house to the second defendant, Mrs Williams, or in the event of anything happening to her, to her daughter, Susan McGuire. At about this time he informed Mrs Williams of the provisions of his will. In April or June 1999 there was a visit by the plaintiff to the deceased and Mrs Williams. Mrs Williams did not recognise him and talked of the deceased as her husband. The visit was with a lady friend of the plaintiff, Tracey Anne Holland. During the visit, which only occupied a short time, the plaintiff says that he asked the deceased whether the deal for the house was okay. According to the plaintiff, the deceased replied, "Don't you worry, it's all taken care of". 11 As I have mentioned, it was on 29 July 1999 that the testator died. Probate was granted on 8 October 1999 and contracts were exchanged for the sale of the property on 15 December 1999. Completion of the sale of the property occurred on 31 January 2000 and it was in May of that year that the solicitors for the plaintiff wrote to the defendant's solicitors inquiring about the estate of the deceased. According to the plaintiff he had become concerned when he had not received a Christmas card from the deceased that year and started inquiries as to the whereabouts of the deceased. He had not been notified of the death of the deceased by Mrs Williams who apparently had not informed Gary Maguire that the deceased had a son by his first marriage. As a result when Gary Maguire gave particulars of the death of the deceased he did not show the deceased as having a child. 12 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."