White v White [2004] NSWSC 208

New South Wales Supreme Court

CITATION : White v White [2004] NSWSC 208 HEARING DATE(S) : 01/03/2004 JUDGMENT DATE : 30 March 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 55

CATCHWORDS : Family Provision. Application by daughter of first marriage. Estate left to deceased's second wife. Legacy awarded to plaintiff. Comments on the obligation of parties to place before the court their full financial circumstances. PARTIES : Diana Joan Hastings White v Francene Barbara White & Ors FILE NUMBER(S) : SC 2627/2002 COUNSEL : Mr K Morrissey for plaintiff

Murwillumbah Lawyers Pty for plaintiff SOLICITORS : Mr G Smith for defendants Ticli Blaxland for defendants

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

Master Macready

Tuesday 30 March 2004

2627 of 2002 DIANA JOAN HASTINGS WHITE v FRANCENE BARBARA WHITE & ORS JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Denis Antony Hastings White who died on 13 November 2000 aged 80 years. The deceased was survived by his daughter, the plaintiff and his son who is not a party to the present proceedings. The first defendant is the second wife of the deceased and the second defendant is his stepdaughter. The last will of the deceased 2 The deceased made his last will on 3 May 2000 and under that will he appointed the plaintiff and the defendants as executors. In the event that the first defendant, his wife, survived him for one month he gave her the whole of his estate. This in fact occurred. Under his default provisions in case his wife had not survived him for one month he left the whole of his estate to his two children from his first marriage and his stepdaughter, the second defendant in equal shares. The estate of the deceased 3 The deceased held a number of joint assets including his home which all passed to his second wife by survivorship. He also held in his name substantial shareholdings, which at the date of death were valued at $805,048.20. The defendants have failed to place before the court any information as to the present value of the estate. Obviously there would have been substantial income received over the period between the date of death and the hearing of these proceedings. The parties are agreed that the value of the shareholding at current valuations is $799,769.00. The deceased also owned a Mazda car which was transferred to the first defendant, his second wife, who also received a number of distributions of income. Up to December 2002 the amount of income distributed to the first defendant was $30,266.97 and it is also apparent that administration expenses to date have also been paid presumably out of this income. 4 The defendants' costs in respect of the proceedings, which have been incurred by their present solicitors, are estimated at $30,400.00. There is an outstanding bill from the defendants' earlier solicitors of some $31,000.00. However, this amount is disputed. The plaintiff's costs were estimated at $47,000.00. In the event that an award is made, the amount of costs to come out of the estate would be $108,400.00 subject to some reduction in the former solicitor's costs. 5 The deceased's son, Antony, made a claim against the estate in the sum of $130,000.00 including costs. Interim orders have been made in respect of that settlement pending the hearing of these proceedings. In the event that the court approves that settlement and makes the appropriate orders, the balance of the estate is likely to be $561,600.00 less some further costs for the realisation and distribution of the estate. Background history