Cobb v Cobb [2002] NSWSC 946

New South Wales Supreme Court

CITATION : Cobb v Cobb [2002] NSWSC 946 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4597/00; 2114/01 HEARING DATE(S) : 16, 17 July 2002 JUDGMENT DATE : 11 October 2002

Barbara Anne Cobb (Plaintiff 4597/00) PARTIES : Kay Cobb (Plaintiff 2114/01) Michael Roy Cobb (Defendant) JUDGMENT OF : Master McLaughlin

M. Willmott (Plaintiff 4597/00) COUNSEL : J. Wilson (Plaintiff 2114/01) W. Haffenden (Defendant) Eric Butler Solicitors (Plaintiff 4597/00) SOLICITORS : Parke Maher Solicitors (Plaintiff 2114/01) Campbell Paton & Taylor Solicitors (Defendant) CATCHWORDS : Succession - Family Provision - Claims by widow and by adult daughter - Adult daughter does not pursue her claim, so long as her interest under the will is not eroded by claim of widow - Financial and material circumstances of widow - Effect of will is to require widow to reside in a house property which was not her home during the marriage and is in a location with which she has no ties and is uncongenial to her - Whether widow has been left without adequate provision for her proper maintenance - Competing claims of the beneficiaries. LEGISLATION CITED : Family Provision Act 1982 Luciano v Rosenblum (1985) 2 NSWLR 65 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 White v Barron (1980) 144 CLR 431 DECISION : See paragraph 78.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 11 October 2002

4597/00 BARBARA ANNE COBB -V- MICHAEL ROY COBB 2114/01 KAY COBB -V- MICHAEL ROY COBB and BARBARA ANNE COBB JUDGMENT 1 MASTER: These are two separate proceedings under the Family Provision Act 1982. 2 By summons 4597 of 2000, filed on 13 November 2000, the Plaintiff Barbara Anne Cobb claims an order for provision for her maintenance, education and advancement in life out of the estate of her late father, Roy Stimpson Cobb (to whom I shall refer as "the Deceased"). 3 By summons 2114 of 2001, filed on 9 April 2001, the Plaintiff Kay Cobb claims an order for provision for her maintenance, education and advancement in life out of the estate of the Deceased, who was her husband at the time of his death. 4 The claim of Barbara Anne Cobb has been resolved, subject to the outcome of the claim of Kay Cobb. Barbara is agreeable to retain her interest under the will of the Deceased; that is, she now no longer claims any additional provision out of the estate of her late father. But she opposes any order in favour of her stepmother, Kay Cobb, which would have the effect of eroding the provision made for Barbara by the will of the Deceased. 5 It is appropriate here to record, however, that on 28 August 2001 orders were made by consent that the two sets of proceedings be heard together, that evidence in the one be evidence in the other, and that Michael Roy Cobb be authorised to act as the only executor of the estate and to represent the estate in proceedings 4597 of 2000. 6 The Deceased died on 7 November 1999 (aged eighty-eight, he having been born on 20 October 1911). He left a will dated 25 January 1996, probate whereof was on 12 April 2000 granted to Michael Roy Cobb and Barbara Anne Cobb, the executors named in such will (who are the Defendants in proceedings 2114 of 2001, and the first of whom, Michael Roy Cobb, is the Defendant in proceedings 4597 of 2000, brought against the estate by his sister and co-executor, Barbara Anne Cobb). 7 The assets of the estate included three separate pieces of rural property, each situate near Lyndhurst (the respective values of which are disclosed in the Inventory of Property as being $228,700, $82,500 and $128,500); a house property at 4 Regency Place, Orange (having an estimated value of $135,000); household furniture and effects ($8,700); Holden Commodore sedan motor vehicle (1990 model) ($6,000); money in various bank accounts and on term deposit accounts (totalling a little over $52,000); interest in partnership and joint venture (totalling a little over $73,000); and indebtedness of the First Defendant to the Deceased, by way of loan ($81,315). 8 At the hearing it was noted that it was agreed between the parties that the present value of each of the foregoing pieces of real estate is as follows: 4 Regency Place, Orange - $155,000