Woelfle v Fembock [2004] NSWSC 342

New South Wales Supreme Court

CITATION : Woelfle v Fembock [2004] NSWSC 342 HEARING DATE(S) : 23/04/2004 JUDGMENT DATE : 29 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 43

CATCHWORDS : Family Provision. Application by son of deceased who received a legacy of $20,000. Increased legacy given. Orders made for notional estate. No matter of principle. PARTIES : Dieter Woelfle v Ingrid Fembock FILE NUMBER(S) : SC 3841 of 2003 COUNSEL : Mr K Morrisey for plaintiff Mr AL Hill for defendant SOLICITORS : O'Reilly & Sochacki Lawyers Alexander Lee & Associates

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

Master Macready

Thursday 29 April 2004

3841 of 2003 DIETER WOELFLE v INGRID FEMBOCK (The Estate of Gertrude Woelfle) JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 (NSW) (the Act) in respect of the estate of the late Gertrude Woelfle who died on 21 January 2002. The deceased's husband had pre-deceased her and she was survived by her five children two of whom are the parties in the present application. The last will of the deceased 2 The deceased made her last will on 10 March 2000 under which she appointed her daughter the defendant as the executor and trustee. She gave legacies of $20,000.00 to her three sons and her daughter, Astrid and gave the residue of her estate to her daughter, the defendant. Assets in the estate 3 The deceased owned a property at 11B Yukon Place, Quakers Hill, Sydney, which was sold after the date of death. The net proceeds of the sale amounted to $236,649.00. The deceased also owned a 1994 Daihatsu Applause motor vehicle worth $5,500.00, 1,000 Telstra shares, 1200 IAG shares and a small amount of personalty. She had a savings account of about $3,700.00. 4 The liabilities in the estate amounted to $8,565.68 which has been paid by the defendant on behalf of the estate. From the proceeds of sale the four legacies of $20,000.00 including that to the plaintiff were paid. As to the balance, the defendant retained approximately $16,649.00 and she directed the solicitor to pay various amounts to her children by way of gift from her share of the residue $140,000.00. 5 The defendant's costs in this matter are estimated at $30,000.00 and the plaintiff's costs are estimated to be $33,337.00. Family history 6 As I have mentioned, the deceased had five children. The defendant, the eldest, was born in February 1942, Peter, a son, in January 1943, Udo, a son in December 1943, the plaintiff, Dieter in November 1946 and a daughter, Astrid, was born in May 1951. The family travelled to Australia in 1956. In 1962 the deceased's husband was injured in a vehicle accident and lost a leg. He received compensation for that injury in 1966, which led to the purchase of various properties including that which was owned at the date of death. The deceased's husband died in 1973. 7 The defendant, Ingrid, married at 21 years of age in 1963 and her three children were born in 1964, 1968 and 1969. 8 In 1989 the deceased moved from Blacktown to Maroochydore in Queensland and in 1994 she moved from Maroochydore to Tewantin. At that stage she gave each of her children a sum of $8,000.00. The plaintiff left school in 1961 and commenced a motor mechanics apprenticeship. He married in 1970 and has three children from that marriage. In 1976 he moved to Queensland and started a plastering business. In 1986 the plaintiff was divorced and he moved to Sydney where he resided with the deceased for a short time. He injured his back at work in 1986 and in 1987 had three different operations performed on his back. In 1989 the plaintiff travelled overseas including some time with his mother and in 1990 he commenced shift work on the Gold Coast and lived at Southport. In 1998 he ceased work as a security guard at Surfers Paradise and from May that year has been in receipt of a disability pension. At about that time he purchased a 1973 Kombi Campervan I which to live and he applied to the Queensland Department of Housing for lodging. In 1999 he had a fourth back operation being a laminectomy. 9 In 1997 the deceased moved from her retirement home at Tewantin back to Blacktown. As I have said she made her will on 10 March 2000 and in November 2001 she moved from Blacktown to Bateman's Bay so that she could be closer to her daughter, the defendant. Unfortunately she became ill on arrival at Bateman's Bay and was admitted to the local hospital. She was subsequently admitted to the Woden Valley Hospital in Canberra where she died on 21 January 2002. 10 A grant of probate was promptly obtained on 19 February 2002. The ordinary advertisement as to the distribution of the estate for claims was published on 1 March 2002. The house was sold and the proceeds were available by 4 June 2002 when the legacies were paid. The other amounts paid at that stage were to the defendant's daughter, Corina ($80,000.00), the defendant's daughter, Lisa ($30,000.00) and the defendant's son Robert ($30,000.00). 11 These proceedings were commenced on 16 July 2003, which is within the time limit under the Act for the making of such a claim. Eligibility 12 The plaintiff is an eligible person. In applications under the Act, the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two-stage approach that a Court must take. At pages 209-210 it said the following: "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. Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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."