McCrea v Jones [2003] NSWSC 221

New South Wales Supreme Court

CITATION : McCrea v Jones [2003] NSWSC 221 HEARING DATE(S) : 25/03/2003 JUDGMENT DATE : 26 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraphs 46 and 47

CATCHWORDS : Family Provision. Application under Family Provision Act by son with cerebral palsy. Consideration of conduct of plainiff towards testator. Order for further provision made. PARTIES : Walter Laurence McCrea v Kerrie Daphne Jones - Estate of Lance Milton McCrea FILE NUMBER(S) : SC 5050/00 COUNSEL : Mr J. Wilson for plaintiff Mr J. Armfield for defendant SOLICITORS : Ross A Derham & Associates for plaintiff Ferrys Law Firm for defendant

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

MASTER MACREADY

WEDNESDAY 26 MARCH 2003

5050/00 - WALTER LAWRENCE McCREA v KERRIE DAPHNE JONES - ESTATE OF LANCE MILTON McCRAE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Lane Milton McCrea, who died on 3 July 1999 aged seventy-two years. The deceased's wife pre-deceased him and he was survived by his son, the plaintiff and his daughter, the defendant. 2 The deceased's will was made on 4 September 1998, under which he appointed the defendant as executrix. He bequeathed all his real estate to the defendant, subject to her paying $20,000 to the plaintiff. The residue was divided between the plaintiff and three grandchildren, but that was of no use as there was in fact no residue. The estate consisted of a house and land at Pomono Road, Empire Bay which is now worth some $640,000. There is a small amount of cash and some insurance which no doubt went in the costs of administration. 3 The plaintiff's costs on a two day hearing basis were $30,000, and the defendant's $26,388. Fortunately the costs will be somewhat less as the case was able to be sensibly contained to a hearing of one day. 4 It is necessary to deal with a little of the history of the family in order to put the matter into perspective. The deceased was born on 3 December 1926 and the defendant, his eldest child, was born on 15 August 1952. The plaintiff, the son, was born on 20 June 1956. He was born with cerebral palsy, he has hearing defects and speech defects. 5 In 1966 the deceased and his wife, Daphne, purchased ten acres of land at Pomono Road, Empire Bay. In 1970 the defendant married her first husband and she had twins in 1973 and a third child in 1979. She separated from her husband in 1981 and divorced him a year or two later. 6 After that she commenced a relationship with Leslie Jones, who is now her present husband. The deceased and his wife in 1985 subdivided the Empire Bay property into three parts. They used the proceeds of sale of the smallest block to purchase a house for the plaintiff at Davistown at a cost of $46,000. 7 At about the same time the defendant and Leslie Jones moved on to the property at Empire Bay and commenced to live with the deceased and his wife. They effected various improvements which included building a mobile home for them on the land. 8 In 1990 the plaintiff obtained some work cleaning cars and for a while in 1991 he started work as a cleaner at Old Sydney Town. In 1995 he stopped work and has never worked since then. Since that time he has been on a disability pension. 9 In 1996 the defendant and her husband bought and organised the building of a one bedroom dual occupancy next to the parents' home. 10 In 1998 the deceased's wife was diagnosed as suffering from mesothelioma and the defendant cared for her until she died. I have already referred to the will of the deceased, which was made on 4 September 1998. 11 Daphne McCrae died on 3 November 1998 and on 10 February 1999 the deceased made a statutory declaration setting out the reasons why he made his will. At that stage he was diagnosed as having cancer of the pancreas. His explanation substantially related to the fact that his daughter and her husband lived there and had assisted him and his wife and had also made substantial improvements to the property. There was no complaint about the plaintiff's conduct made in that declaration. 12 On 25 June 1999 the plaintiff agreed to pay $11,500 out of his share in the deceased's estate to purchase a motor vehicle. The deceased on 3 June 1999. Probate was granted in July that year. From 1999 to 2001 the defendant and her husband carried out more improvements on the Empire Bay property. 13 In late 1999 the plaintiff sold his Davistown property for $146,000 and purchased a cheaper property for $105,000. He cleared some $22,000 in respect of the exchange of properties. 14 The summons in this matter was filed within time. 15 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 p 209 the court said: "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.