Harvey v Delaney [2003] NSWSC 589

New South Wales Supreme Court

CITATION : Harvey v Delaney [2003] NSWSC 589 HEARING DATE(S) : 25/06/2003 JUDGMENT DATE : 2 July 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 45

CATCHWORDS : Family Provision. Application by widower. Order for payment of a quarter share of the property to the plaintiff and a Crisp order in respect of the balance of the property. PARTIES : Kenneth Lionel Harvey v Grant Andrew Delaney and Haydn Wallace FILE NUMBER(S) : SC 5977/01 COUNSEL : Mr M.S. Willmott for plaintiff Mr P. Hallen SC for defendant SOLICITORS : Turnbull Hill Lawyers for plaintiff Cantle Carmichael for defendant

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

Master Macready

Wednesday 4 June 2003

5977/01 Kenneth Lionel Harvey v Grant Andrew Delaney and Haydn Wallace JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Coral Harvey who died on 29 December 2000 aged 73 years. Her husband the plaintiff, who is now 85 years of age survived her. She is also survived by two grandchildren who are the children of her daughter, her daughter having predeceased her. The will of the deceased 2 The deceased made her last will on 18 December 2000 and she appointed the defendants as her executors. After making some bequests of jewellery the deceased left her home at 68 O'Brien Street Bondi Beach in trust to permit her husband to reside therein and thereafter dealt with her residuary estate on and from his death to make certain payments for legacies and for disposition of the residue. The relevant provisions appear in paragraphs 4, 5, 6 and 7 of the will which are in these terms: "4. (a) I GIVE AND DEVISE to my Trustees my real estate at 68 O'Brien Street Bondi Beach and the furniture contained therein UPON TRUST to permit my husband KENNETH HARVEY provided he survives me to reside therein free of charge during his life (so long as he remains my widower) and, subject to clause 4(b) of this my will, on the following conditions that my Trustees, in respect of that residence: (i) pay all rates and taxes and other outgoings; (ii) keep it in a good and habitable state of repair, fair wear and tear and damage by fire, lightning, flood, tempest and other inevitable accident excepted; (iii) keep it insured against fire, storm, tempest and other usual household insurable risks for an appropriate amount. (b) I DIRECT that that residence shall form part of my residuary estate in the events: (i) of the death or remarriage of my husband; (ii) of the failure of my husband in the opinion of my Trustees to continue to reside permanently therein. 5. I GIVE AND BEQUEATH the residue of my estate to my Trustees UPON TRUST to pay thereout all may just debts funeral and testamentary expenses which my be owing by me at the date of my death and to hold the balance then remaining as follows: a. During the life of my husband KENNETH HARVEY and during his occupancy of 68 O'Brien Street Bondi Beach to pay from the income therefrom, and in so far as that income in any calendar year may be insufficient for such purposes from the capital thereof, all rates, taxes, insurance premiums and repairs in respect of my real estate 68 O'Brien Street, Bondi Beach; b. after the death of my husband or upon him ceasing to be reside in the opinion of my Trustees permanently in 68 O'Brien Street Bondi Beach the remainder of my personal estate shall form part of my residuary estate.