Havord v Havord [2003] NSWSC 136

New South Wales Supreme Court

CITATION : Havord v Havord [2003] NSWSC 136 HEARING DATE(S) : 24/02/03, 25/02/03 JUDGMENT DATE : 25 February 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 30

CATCHWORDS : Family Provision. Application by adult son excluded from will. Small legacy ordered. Need for proper evidence to deal with the way the plaintiff has been left with unsufficient provision. PARTIES : Peter Havord v Kenneith Havord FILE NUMBER(S) : SC 5427/01 COUNSEL : Mr M. Christie for plaintiff Mr J. Young for defendant SOLICITORS : Alfred J. Morgan & Son for plaintiff Directlaw The Law Firm for defendant

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

MASTER MACREADY

TUESDAY 25 FEBRUARY 2003

5427/01- PETER HAVORD v KENNETH HAVORD (JNR)

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Kenneth William Havord, who died on 27 August 2000 aged eighty-three years. He was survived by his two sons, who are the plaintiff and defendant in the proceedings. 2 The deceased made his last will on 11 February 2000. Under that will he appointed the defendant his executor and he gave him half of the residue of his estate; a further quarter share went to the defendant's first wife, Robyn Havord, and the remaining quarter share was shared equally between the three children of the defendant and his first wife. They are Lee Havord, Bruce Havord and Kelly Havord. 3 The assets in the estate have been realised and, after allowing for estimated taxation liabilities and the defendant's legal costs of $20,000, there is a net estate of $660,000. The plaintiff's costs are estimated at $21,764. 4 I will deal with a little of the history of the family. The defendant was born in March 1946 and the plaintiff in September 1955. They grew up with their parents. According to the evidence the situation at home was not always happy. The plaintiff, for instance, remembers that before his years as a teenager things were generally happy but there were arguments between his parents. The defendant left home in about 1964 to go to teachers college. He apparently returned in 1966. There was a breakdown of the relationship between the defendant and his father for about five years. 5 Things also were not well for the plaintiff in that in 1972, when the plaintiff was then aged sixteen, he and the testator had a physical fight, arguing over the loudness of music at home. Things apparently do not change. 6 The plaintiff in 1975 left home and started studying for degrees in geology which he eventually obtained when he lived at St Paul's College. In 1978 he completed a Bachelor of Science. It was in 1986 that the plaintiff and the defendant's mother died. After this there were a number of wills executed by the deceased. 7 In August 1986 he executed a will which gave five per cent of his estate to the defendant and divided the residue between the defendant, the plaintiff and his grandchildren. In 1987 there was a will leaving $30,000 to the defendant and dividing the residue between the defendant, the plaintiff and the three named grandchildren. 8 In 1988 there was a visit by the plaintiff to his father. The plaintiff at that stage had moved to Brisbane and was working there and he came down at Easter. I will return to the detail of the dispute later but on the Monday morning, when the plaintiff was preparing to leave for home, the deceased told him to get out of the house and never to come back. 9 In May 1988 there was a further will leaving $30,000 to the defendant and leaving the residue between the defendant, his daughter-in-law Robyn and the three named grandchildren. In May 1988 the deceased also issued a statement of reasons in which he described the reason why he left that will. As it touches on a later will, I will set out the detail of that. "The reason I exclude my younger son Peter John Havord from being one of my beneficiaries in my will is his consistent disobedience to my wishes, lasting over a period of many years, his verbal abuse of me and his physical violence, which on one occasion, necessitated my consulting my M.D. which resulted a medical certificate stating my injuries required an absence from my work for one week. At the present moment, Peter still holds the front door key to my house which he will not return to me.