Wilkie v Wiese [2001] NSWSC 980

New South Wales Supreme Court

CITATION : Wilkie v Wiese [2001] NSWSC 980 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1143 of 2001 HEARING DATE(S) : 31/10/01, 1/11/01 JUDGMENT DATE : 1 November 2001

PARTIES : Colin Malcolm Wilkie v Geoffrey Allen Wiese & anor JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M.S. Willmott for plaintiff Mr J.O. Anderson for defendants SOLICITORS : Eric Butler for plaintiff Oliver Campbell for defendants CATCHWORDS : Family Provision. Application by son in respect of a small estate. Increased provision made for plaintiff. DECISION : Paragraph 30

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Arthur Robert Wilkie who died 3 March 2000. The deceased was survived by three of his children and his former wife. Only the plaintiff, one of his sons, makes a claim. The second defendant is a daughter and the first defendant is her husband, who was appointed executor of the last will and testament of the deceased; that last will was made on 12 August 1992. Under that will he left $500 to his son Robert; $500 to his son Colin, the plaintiff, $500 to his ex-wife, Pearl; and the residue to his daughter, Barbara Wiese, who is the second defendant. 2 The estate is small, $76,277 and after funeral costs it came to $74,025.84. It is, indeed, a small estate and, of course, with assets like this costs impacts are very important. 3 The evidence before me shows that the plaintiff's costs have been kept to a sum of $9500. That is, of course, substantially less than would normally be charged. Frequently costs for small matters are in the order of $25,000 to $30,000 and it is very commendable to see both the plaintiff's solicitors and also the defendants' solicitors have taken a realistic attitude to costs so that the parties will not be unduly disadvantaged and I commend them for that. 4 Virtually the plaintiff's costs will cover out-of-pockets, counsel fees and not much else. The defendants' costs have also been much reduced, to $12,500 and they have, in fact, already been paid by the defendants. 5 The estate was distributed on 15 June 2000 when the legacies were paid. After allowance for some costs and a headstone of $5858 the second defendant, Barbara Wiese, received the sum of $64,393. 6 In order to understand the matter, I will deal with a little bit of the history of the family: the deceased was born on 8 November 1916 and he married in 1953. Barbara, his child, was born on 16 May 1954; Brian on 2 September 1956; Colin on 11 August 1958 and Arthur on 25 January 1962. Arthur predeceased the testator, he having died in 1988. 7 It was in 1969 that Barbara left school at the request of the deceased so that she could start work. She was aged sixteen. Barbara herself married on 25 November 1972 and it was a few years later in 1976 that the deceased retired from employment. Barbara was employed in 1983 and for various times in the years thereafter. It is apparent that there had been reasonable contact between Barbara and the deceased because in 1992 there are reports of the deceased saying he intended to leave the bulk of his estate to Barbara because of what she had done for him. 8 The deceased's will was made on 12 August 1992, as I have already mentioned. From time to time Colin has been employed; for instance, he was employed in May 1995 at the Pizza Hut as a driver; he had some work at a recycling factory in 1996; he was employed by Coles, also in 1996. 9 In January 2000 the deceased, in discussing matters with his daughter, told her that the first thing she should do once he died was to pay off the mortgage. As I have mentioned, the deceased died on 1 March 2000, aged eight-four years. Probate was granted on 2 March 2000. On 12 May 2000 a notice of intended distribution of the estate of the deceased was published in the Newcastle Herald. 10 In June 2000 Barbara suffered a work injury when she was working for a nursing home. 11 On 15 June there was a distribution to Barbara and the plaintiff, Colin, received his $500. A month later, on 16 July, Barbara used part of residue to pay the sum of $29,855 to the mortgagee over the home which she and her husband owned. It was on 19 January 2001 that Colin filed his summons in this matter. At this stage the second defendant still had some $15,952.24 in an investment which represented the balance of the legacy which she had received. 12 In applications under the Family Provision Act the High Court has 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' et cetera 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 et cetera 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.