Willis v Willis [2003] NSWSC 304

New South Wales Supreme Court

CITATION : Willis v Willis [2003] NSWSC 304 HEARING DATE(S) : 26 November 2002 JUDGMENT DATE : 15 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). I order that the summons be dismissed; (2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis; (3). I order that the Defendants be entitled to be paid out of the estate of the late Brenda Willis ("the Deceased") the difference between the costs of the Defendants on the indemnity basis and the amount of the aforesaid costs which they may recover from the Plaintiff; (4). The exhibits may be returned.

CATCHWORDS : Succession - Family Provision - Claim by adult son - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for his proper maintenance - Competing claims of other beneficiares. LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Keith Willis (Plaintiff) PARTIES : Brian Willis (First Defendant) Sandra Anne Hope-Johnstone (Second Defendant) FILE NUMBER(S) : SC 2377/01 COUNSEL : M. Willmott (Plaintiff) L. Ellison (Defendants) SOLICITORS : Turnbull Hill Lawyers (Plaintiff) Paul Ward-Harvey & Co, Solicitors (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 15 April 2003

2377/01 KEITH WILLIS -v- BRIAN WILLIS and ANOR JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 30 April 2001 Keith Willis, the Plaintiff, claims an order for provision for his maintenance, education and advancement in life out of the estate and/or the notional estate of his late mother, Brenda Willis (to whom I shall refer as "the Deceased"). 3 The Deceased died on 28 August 2000, aged 68 years. She left a will dated 15 February 1992, probate whereof was on 4 April 2001 granted to Brian Willis and Sandra Anne Hope-Johnstone, the executors named therein (who are the Defendants to the present proceedings). 4 The assets of the estate disclosed in the inventory of property consisted of a residential property situate at and known as 1/11 Dural Street, Hornsby (to which an estimated value of $295,000 was ascribed), jewellery and other chattels (to which an estimated total value of $5,000 was ascribed), a Toyota Corolla motor car (having an estimated value of $8,000) and a superannuation entitlement of $64,000. 5 All the foregoing assets have now been realised, and the Defendants currently hold an amount of $380,800 in a cash management trust. There is a prospective income tax liability of $800 in respect to the income earned by the foregoing amount. 6 It will be appreciated that in calculating the amount available for distribution the costs of the present proceedings must be taken into account. The costs of the Plaintiff are estimated to total $30,000, whilst those of the Defendant are estimated to be in the vicinity of $20,000. In consequence, therefore, the value of the distributable estate will be in the order of $330,000. 7 The Deceased, who had been divorced from her husband in 1982, was survived by her four children, being the Plaintiff, the two Defendants and Kristine (referred to in the will as "Christine") (Mrs Gailey). 8 The Deceased by her will gave her jewellery and other chattels in accordance with a list attached to the will. She gave a legacy of $20,000 to the Plaintiff, and the residue of the estate equally among her other three children, being Brian, Sandra (Mrs Hope-Johnstone) and Kristine. 9 Clause 5 of the will is in the following terms: I HEREBY DECLARE that my son Keith has already received sufficient and adequate assistance from his father and that I have made provision for him accordingly and in light of those circumstances, in this my Will. 10 The Plaintiff was born on 22 February 1964, and is presently aged thirty-nine. He was the third of the four children of his parents. The Plaintiff left school in 1982, having completed his education at Asquith Boys High School. In 1983, when he was aged eighteen, the Plaintiff was involved in a motorcycle accident, in which he sustained a broken femur and a broken ankle. The following year he commenced apprenticeship as a fitter, welder and machinist. 11 In 1993 the Plaintiff's father, John Willis, gave to the Plaintiff a parcel of land at Berkeley Vale, upon which the Plaintiff, with the assistance of a loan, constructed a house. The cost of construction of the residence upon the Berkeley Vale property was $70,000. The Plaintiff borrowed that amount, which was secured by mortgage. There is presently an amount of $52,000 outstanding upon that mortgage. 12 In addition to the house property at Berkeley Vale in which he resides (and to which a present value of $250,000 is attributed), the Plaintiff also owns an investment property at Swansea (to which a value of $250,000 is also attributed). Each of those properties is subject to a mortgage ($52,000 in the case of the Berkeley Vale property, and $222,000 in the case of the Swansea property). The Plaintiff has a credit card debts of $4,700, and he is indebted in his bank account to the extent of about $9,000 (although at the commencement of the proceedings that account was $3000 in credit). 13 As well as the two pieces of real property, the Plaintiff's assets include a 1984 Ford Laser motor vehicle (to which a value of $2,000 is attributed). At the commencement of the proceedings the Plaintiff owned five motorcycles (two being described as antique motorcycles), to which he attributed a total value of $45,000. However shortly before the hearing he disposed of one of those motorcycles for $1,000. Although the Plaintiff estimates that his personal property (consisting of furniture, a computer, a stereo, and the like) has a value of about $20,000, it is insured for $50,000 (that, apparently, being its replacement value). In addition, the Plaintiff has superannuation entitlements totalling almost $12,600. 14 The Plaintiff is unmarried. He is presently employed as an automotive supervisor by Auto-Bake Pty Limited. The Plaintiff's gross income from his employment and from the rentals which he receives from the Swansea property is $52,110 gross ($42,000 net). 15 The Plaintiff suffers from osteoarthritis in his left leg, resulting from injuries which he sustained in the motorcycle accident when he was aged eighteen. He said that he experiences constant pain, particularly in cold weather. However, he does not receive specific medical treatment for his condition, and takes no medication other than anti-inflammatory tablets. The Plaintiff stated that he was concerned that, on account of the fact that he is sometimes required to perform heavy physical work in the course of his employment, he will in future be restricted in his work activities. To the present time, however, he has not experienced any such restriction. 16 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. 17 It will be appreciated that each of the Defendants and their sister Kristine is also an eligible person within paragraph (b) of the definition. 18 The only other eligible person in relation to the Deceased is John William Robert Willis, the former husband of the Deceased, who is an eligible person within paragraph (c) of the definition. There was placed in evidence the notice of claim which had been served upon John William Robert Willis. That notice of claim bore the following endorsement signed by Mr Willis, I JOHN WILLIAM ROBERT WILLIS of 13/33 Addison Road, Manly hereby acknowledge receipt of the above form of Notice and confirm that I do not wish to exercise any rights which I may have against the Estate pursuant to the provisions of the Family Provisions [ sic ] Act, 1982. I do not want anything from the Estate.