McQuhae v Abel [2003] NSWSC 711

New South Wales Supreme Court

CITATION : McQuhae v Abel [2003] NSWSC 711 revised - 12/08/2003 HEARING DATE(S) : 1,4 August 2003 JUDGMENT DATE : 7 August 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION :

CATCHWORDS : Family Provision. Application under Family Provision Act by a daughter who had minimal contact with deceased over last 13 years of the deceased's life. Small estate - legacy granted. PARTIES : Patricia Edith McQuhae v Marilyn Jean Abel FILE NUMBER(S) : SC 3229/02 COUNSEL : Mr S. Bell for plaintiff Mr P.R. Glissan for defendant SOLICITORS : McKenzie Cox for plaintiff Toltz La Hood for defendant

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

Master Macready

Thursday 7 August 2003

3229/02 Patricia Edith McQuhae v Marilyn Jean Abel JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Jean Margaret Perooz who died on 5 October 2001 aged 86 years. The deceased's husband had died some months beforehand and her two daughters, the parties in these proceedings, survived her. The will of the deceased 2 The last will of the deceased was made on 24 August 2001 in which she appointed the defendant her executrix. She gave pecuniary legacies of $20,000 each to her four grandchildren and the residue of her estate to the defendant. She also directed the repayment of $30,000 to the defendant, which she described as the final payment for the house that she and her husband had purchased from their daughter the defendant. In clause 6 of her will, the deceased referred to the plaintiff in these terms: "I declare that I do not want my younger daughter Patricia McQuhae to receive any of my estate as she has not acknowledged her parents for almost 14 years. She also refused us contact with her children, refusing to let us phone them, except any gifts from us and would not allow us to have any photographs of them. However, the elder (granddaughter) Kim McQuhae after a long search, contacted us and has kept in constant touch of her own free will during the last 12 months." Assets in the estate 3 At the date of her death the deceased owned her home at 11A Steyne Road, Saratoga. The only evidence of value is that in the probate application, namely $275,000. The deceased had cash totalling $24,916.21. Apart from the debt due to the defendant of $30,000 there were funeral, testamentary and other expenses totalling $5843.01. 4 The defendant's costs for a one-day hearing are estimated at $40,385.01 and for a two-day hearing of $45,060.01. The plaintiff's costs for a one-day hearing are estimated at $30,356.15 and for a two-day hearing $33,656.15. 5 If an order is made in favour of the plaintiff this means that a sum of $89,642 will have to be deducted from whatever might be the net proceeds of the sale of the only property in the estate. Assuming sale costs of about $7,000 the distributable estate will be in the order of $178,358. If the legacies of $80,000 are paid the distributable estate is $98,358. The family history 6 The plaintiff's father was born on 6 March 1914 and his wife, the deceased, was born on 26 August 1916. The defendant was born on 27 March 1945 and the plaintiff on 8 September 1949. 7 It was in 1969 that the plaintiff met her future husband Peter McQuhae. The deceased did not like him and gave an ultimatum to the plaintiff in 1970 that she had to stop seeing him or that she could leave home. She did leave home although she returned some months later for a short time. The same problem surfaced and accordingly she left again for a short time. Although she still continued her contact with her future husband she remained at home between 1971 in 1973 studying as well as doing housework and other things about the home. 8 The plaintiff graduated with a bachelor of science in March 1972 and in December that year she and Peter McQuhae purchased a house at Casula. They married in January 1972 and the plaintiff then worked as a maths teacher at Presbyterian Ladies College in Sydney up until 1979. During this period and indeed up until 1987 the plaintiff and her husband did work renovating and repairing their parent's house at Padstow. 9 The plaintiff's daughter Kim was born on 27 December 1979 and her son Cameron was born on 15 January 1982. The contact between the plaintiff, her husband and the plaintiff's parents continued and, for example, in 1980 they took their mother and father on a holiday to Tuross Lakes and in 1984 on a holiday to Wauchope. They paid for a holiday for their parents to visit Caloundra in 1985. 10 In 1987, a doctor advised the McQuhae family to move from Sydney due to the severe asthma that the plaintiff's son Cameron was suffering. Her husband accepted redundancy from APM Ltd and the family moved to a farm at Dorrigo. Between 1987 and 1993 the family lived on the farm at Dorrigo and built a granny flat for the plaintiff's mother and father to visit. However her parents refused to visit the plaintiff saying it was too far to drive. 11 The relations between the plaintiff and the deceased were exacerbated in 1988 when the deceased wrote a letter to the plaintiff that was very critical of her husband. This, however, did not stop the plaintiff in speaking by telephone to her father. The plaintiff's father was hospitalised in May 2001 and died on 24 May 2001. Probate was granted on 13 February 2002 and these proceedings were commenced within time on 20 June 2002. The eligibility of the plaintiff 12 The plaintiff is a daughter of the deceased and accordingly is an eligible person. 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. 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."