Purcell v Barry [2003] NSWSC 552

New South Wales Supreme Court

CITATION : Purcell v Barry [2003] NSWSC 552 revised - 1/07/2003 HEARING DATE(S) : 28/05/03, 10/05/03; 16/06/03 JUDGMENT DATE : 24 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : I order that the summons be dismissed and order the plaintiff to pay the defendant's costs on a party and party basis.

CATCHWORDS : Family Provision. Claim by adult daughter. Consideration of provision made during lifetime. Application refused. Costs and whether indemnity costs should be ordered. - Held: Party and party costs ordered. PARTIES : Beryl Ellen Purcell v Edward John Henry FILE NUMBER(S) : SC 5281/2001 COUNSEL : Miss Karin Ottesen for plaintiff Mr CJ Bevan for defendant SOLICITORS : John Byrnes & Associates for plaintiff Turner Freeman for defendant

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

Master Macready

Tuesday 24 June 2003

5281/01 Beryl Ellen Purcell v Edward John Barry JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Edward James Barry who died on 24 May 2001 aged 91 years. He was survived by the plaintiff, his daughter and the defendant, his son. The deceased's last will 2 The deceased made his last will on 30 November 2000 under which he appointed the defendant his executor and left the whole estate to him. In his will the deceased gave the following reasons for not making provision for his daughter in these terms: "4. I have made no provision .in this will for my daughter Beryl Purcell for reasons including the following :- (a) my daughter has been offered and has accepted the sum of Seventy Thousand Dollars ($70,000.00) from my son in return for giving up any entitlement she might have had to an interest in my estate; (b) my son and his wife have spent much of their time and effort over many years caring for me. For example, my son has left his home for an extended period during my recent illness to live with me in order to care for me during my illness; (c) my daughter has shown little or no interest in my health and welfare over many years. For example, my daughter has not invited me to stay with her during my recent illness." 3 The deceased had made a will on 26 April 2000 which also left his estate to the defendant. At that time he signed a statutory declaration in these terms: "1. I have this day made a new Last Will & Testament. A copy of that Last Will and Testament is annexed hereto and marked with the letter "A".