Haywood v Williams [2002] NSWSC 593

New South Wales Supreme Court

CITATION : Haywood v Williams [2002] NSWSC 593 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5110/2001 HEARING DATE(S) : 26/06/02 JUDGMENT DATE : 26 June 2002

PARTIES : Judith Roslyn Haywood v Dianne Joy Williams (Estate of Gladys Joan English) JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A.G. Diethelm for plaintiff Mr R.J. Powell for defendant SOLICITORS : Galland Elder Lulham for plaintiff Lewis Ackman for defendant CATCHWORDS : Family Provision. Claim by a daughter. Inadequate evidence of needs. Small legacy provided. No matter of principle. DECISION : Paragraph 22

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

MASTER MACREADY

WEDNESDAY 26 JUNE 2002

5110/01 - JUDITH ROSLYN HAYWOOD v DIANNE JOY WILLIAMS - ESTATE OF GLADYS JOAN ENGLISH & ANOR

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Gladys Joan English who died on 23 August 2000 aged seventy-six years. She was survived by her two daughters, one of whom is the plaintiff and the other is one of the defendants. The plaintiff has also been named as a defendant and apparently both were executors and took out probate. The plaintiff should be removed as the defendant and I will do that in due course. 2 The deceased made her last will on 7 September 1984. She left her house to Tracy Joy Montgomery who was the daughter of her daughter. She gave jewellery and other personal items to a number of named persons, including the plaintiff. The residue of her estate she left equally between her two children, Dianne Williams and the plaintiff Judith. 3 The estate consisted of the deceased's home at 19 Waratah Street, Windang, which is apparently somewhere near Wollongong. There is furniture of $1500 and jewellery which has been distributed. There was cash in the estate of $3992.96 and that has gone to the solicitors to meet the estate expenses no doubt in connection with probate. The house is valued at $235,000 and is, in effect, the only asset in the estate and has to be sold and the following amounts deducted from the proceeds. There will be selling costs in the order of $7600; the plaintiff's costs, if she is successful, of some $17,400; the defendant's costs of some $18,000. There is a debt due to Tracy of some $3136 for an amount she has paid in respect of the house and the estate. This leaves a net estate of $188,864. There is only a small estate but fortunately the solicitors have been able to restrain the amount of costs that have been incurred and that is good to see. 4 I will just deal with a brief chronology so far as the parties are concerned. The plaintiff, Judith, was born on 11 April 1941. The defendant, Dianne, was born on 11 May 1945. The plaintiff moved away from home in 1956. Details of Dianne's earlier life are not in evidence but her daughter, Tracy, was born in 1963. On 3 October 1980 the plaintiff was married. In January 1984 Tracy married Neil Montgomery and their son, Brendan, was born on 31 January 1986. 5 The deceased's husband died on either 19 August 1984 or 19 September 1984. Having regard to the contents of the deceased's will, I think it is fairly obvious that he must have died on 19 August 1984. The will was made on 7 September 1984 and contains no provision for the deceased's husband. 6 In 1986 the plaintiff and her husband sold a road house which they had at Young. They had invested all their savings and apparently the sale was done in a way that the plaintiff ultimately received nothing from it or only a small amount. In 1990 she and her husband leased and operated a farm at Tumut which they continued for some time until 1995 when the plaintiff's husband died. The plaintiff and her stepson continued to operate the property for some time thereafter. 7 In December 1994 Tracy and Neil Montgomery separated and in February 1995 Tracy and her son started living with the deceased at the home which is still in the estate. In the year 2000 the plaintiff moved to Housing Commission accommodation at Goulburn and then to Koonawarra, a suburb apparently near Wollongong. 8 The deceased died on 23 August 2000 and probate was granted on 30 March 2001. Tracy remarried to Mark Baron on 13 October 2001 and the summons was filed on 19 October 2001 within the time limit within the Act. 9 In applications under the Family Provisions 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 p 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 inter-relationship 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.