Webber v Dimon [2003] NSWSC 134

New South Wales Supreme Court

CITATION : Webber v Dimon [2003] NSWSC 134 HEARING DATE(S) : 25/02/03 JUDGMENT DATE : 26 February 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 24

CATCHWORDS : Family Provision. Application by a defacto partner who was only given a right of residue in matrimonial home. No competing claims and whole estate given to applicant absolutely. PARTIES : Gladys Webber v Albert Sydney Dimon FILE NUMBER(S) : SC 2448/01 COUNSEL : Mr M. Willmott for applicant SOLICITORS : Turnbull Hill Lawyers for applicant

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

MASTER MACREADY

WEDNESDAY 26 FEBRUARY 2002

2448/01 – GLADYS WEBBER v ALBERT SYDNEY JELLICOE DIMON

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Albert Sydney Jellicoe Dimon who died on 8 November 1999. The deceased was survived by the plaintiff, who has been his de facto partner since 1975. He was also survived by a son Ronald. 2 The deceased made his last will on 25 February 1990 and in that he appointed his brother executor and gave his home to his wife to permit her to live in the house and have the use of it provided she paid rates and taxes and other matters and kept it in repair. The provision allowed her to have the house sold and have another house bought, to which the same provision would then apply. 3 At the moment the plaintiff wishes to live in the house or later, depending on her health, in any institution which provides care facilities. The residue of the estate was divided between five people, the deceased's nephew Michael John Cleaver, his niece Sandra Janshan, his niece, Adele Bull and two friends, David Gibson and Trevor Gibson. It is noted that his son is not a beneficiary. 4 The only evidence before me shows the assets that the estate consists of the deceased's property at 22 Greenfield Road, Empire Bay. On the valuations before me that has a valuation of some $280,000. Sale expenses for the property if it was sold would bring this down to $250,000, and the costs of $35,000 would mean that the distributable estate would be in the order of $215,000. 5 I will deal with a little of the chronology first. The plaintiff was born on 18 November 1915. The date of birth of the deceased is not known but he migrated to Australia in 1922, and the plaintiff herself migrated in 1924. They met in 1933 and, although they went out, they did not get together then and both of them married other partners. The deceased's son Ronald was born in 1951. 6 The subject property was purchased in 1969 by the deceased with the assistance of a loan from a credit union. It was in 1970 that the plaintiff and the deceased met up again after the death of their respective spouses. In 1975 they both retired, having attained the age of sixty years. They then commenced to live together as de facto spouses at the home at Empire Bay. In 1983 they operated a joint account and this was managed by the plaintiff. 7 The will was made in 1990 and in 1993 the deceased started to suffer from health problems and he was greatly assisted by the plaintiff, who looked after him throughout these problems. He ultimately died, as I have said, on 18 November 1999. 8 The summons was filed herein within time and in due course an amended summons was filed joining the five beneficiaries as defendants. There is no question of the executor taking out probate because the evidence before me shows that Mr Roy Dimon suffers from advanced Parkinson's disease and has a mild to moderate cognitive impairment and is unable to manage his affairs. There has been a grant for the purposes of the application. 9 All the five beneficiaries have been notified of the hearing today and none of them has sought to take any part in the proceedings. They have been served with copies of the affidavits. In addition, the deceased's son has also been served and he has elected to take no part in the proceedings, or to bring a claim if that is what he might have wished to do as he is an eligible person. 10 In Singer v. Berghouse (1994) 181 CLR 201 the High Court set out the approach the Court must take in matters of this nature. At p 209 it 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."