Morgan v Stephenson: Estate A.W. Horne [2004] NSWSC 264

New South Wales Supreme Court

CITATION : Morgan v Stephenson: Estate A.W. Horne [2004] NSWSC 264 HEARING DATE(S) : 1 & 2 April, 2004 JUDGMENT DATE : 2 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Plaintiff's Summons dismissed with costs.

CATCHWORDS : FAMILY PROVISION ACT - ELIGIBLE PERSON - Plaintiff was member of deceased's household as small child - plaintiff financially dependent on deceased for short time as small child - no subsequent financial dependence. - HELD: Plaintiff was "an eligible person" but application for provision from deceased's estate not warranted. LEGISLATION CITED : Family Provision Act 1982 (NSW) - s.6, s.7, s.9(1) CASES CITED : - Benney v Jones (1991) 23 NSWLR 559 - Fulop, Re (1987) 8 NSWLR 679 PARTIES : Janice Anne Morgan - Plaintiff Deborah Stephenson - Defendant FILE NUMBER(S) : SC 1761/03 COUNSEL : J.R. Dupree - Plaintiff B. Sharpe - Defendant SOLICITORS : L.C. Muriniti & Assoc. - Plaintiff Gary Cleary & Assoc - Defendant

1 The Plaintiff seeks an order that provision be made for her maintenance, education and advancement in life pursuant to s.7 of the Family Provision Act 1982 (NSW) out of the estate of the late Alexander Winchester Horne, who died on 28 March 2002 leaving a Will dated 16 March 2000. Probate of the Will was granted to the Defendant on 14 May 2002. 2 By his Will, the Deceased divided his estate between his daughter, Alice Currie, and the Defendant, provided that they survived him. Alice Currie died before the Deceased. Under the provisions of the Will, therefore, the whole of the estate passes to the Defendant. 3 The Plaintiff and the Defendant are half-sisters. The Plaintiff is the daughter of the marriage of Alice Holly and Alexander Hatfield and she was born on 16 June 1946. Her brother, Paul Hatfield, was born of that marriage on 8 May 1948. The Plaintiff's parents separated in 1948 and their marriage was later dissolved. Alice married John Currie in 1953. The Defendant was born of that marriage on 12 November 1960. 4 The Plaintiff's mother, Alice, was the daughter of the marriage of Emily and Claude Holly. After Mr Holly's death, Emily married the Deceased. There were no children of that marriage. The Deceased was not, therefore, the biological grandfather of the Plaintiff. Nevertheless, as the circumstances hereafter recounted explain, the Plaintiff and the Defendant both looked on the Deceased as their grandfather. It will be convenient to refer to the Deceased and the parties' biological grandmother as the grandparents. 5 The facts relevant to the Plaintiff's application are as follows. 6 In 1948, about two years after the Plaintiff's birth, her parents separated. Her mother, Alice, then went with the Plaintiff and her younger brother, Paul, to live with the grandparents at their home in Leichhardt. 7 In 1949 the Plaintiff's mother formed a relationship with John Currie, who was then a boarder in the grandparents' house. According to the Plaintiff's recollection, Mr Currie was a coppersmith and was in regular employment. That he was a coppersmith is confirmed by the terms of his later marriage certificate. 8 In 1951, the Plaintiff's mother and Mr Currie purchased vacant land at Melba Road, Woy Woy, for the purpose of building a house. The land was purchased in the names of Alice and John Currie, although the Plaintiff's mother was not yet married to Mr Currie. 9 In about 1952 or 1953, the grandparents, the Plaintiff's mother, Mr Currie and the two children moved to a house which had been built by the grandparents in Lagoon Street, Ettalong. 10 On 9 May 1953, the Plaintiff's mother married Mr Currie. The marriage certificate shows that both the Plaintiff's mother and Mr Currie were then living at the Lagoon Street house. On 15 February 1954, Stephen, the first child of that marriage, was born. His birth certificate shows that by the time of his birth, the Plaintiff's mother, Mr Currie and the children had moved from the grandparents' house in Lagoon Street to the house in Melba Road, Woy Woy. 11 It is clear, therefore, that the Plaintiff's mother, the Plaintiff and her brother lived in the grandparents' house at Leichhardt and then at Lagoon Street, Ettalong, for about six years, that is, from about some time in 1948 to early 1954 at the latest. The Plaintiff would have been about two years old when she moved into the grandparents' home at Leichhardt and seven years old when she moved out of the Ettalong house. 12 The Plaintiff says that during this time the grandparents provided support to her mother and to her children. She is, of course, unable to give this evidence from her own knowledge and observation as she was very young at the time. She relies upon a statement by her mother, unattributed in time, to the following effect: "I don't know what we would have done without your grandparents' help, we didn't have any money of our own, your father had just abandoned us." 13 The statement that "your father had just abandoned us" is ambiguous. "Just" could mean "recently", as in "your father had recently abandoned us", or it could mean "simply", as in "your father had simply abandoned us". Without knowing the context in which the statement was made, it is impossible to resolve the ambiguity. If the statement is to be understood as meaning "your father had recently abandoned us", then it is capable of suggesting that the help provided by the grandparents was provided only during a time shortly after the father's departure. 14 The Plaintiff has given evidence that the Deceased gave her coins from time to time during her childhood. The circumstances and character of these gifts emerged from the evidence of the Defendant, which I accept. The Defendant says that the Deceased, who was overseas for long periods, was in the habit on his return of giving his grandchildren the small change which he had saved while he was away. These gifts amounted only to a few dollars and were doubtless intended to be used for the purchase of lollies and other little treats. 15 As I have said, it appears that the Plaintiff's mother and Mr Currie began living in a de facto relationship at the Leichhardt house in 1949. By 1951 their relationship was secure enough for them to buy land in both their names and to call themselves married. It seems that by that time Mr Currie was quite prepared to apply his own financial resources to the welfare of the Plaintiff's mother and her children. In those circumstances, it is possible that Mr Currie made some financial contribution to the support of the Plaintiff's mother and her children from the time that they first established their de facto relationship in 1949. The evidence suggests that the Plaintiff's mother, who was a dressmaker, was able to find work from time to time during this period. There is no reliable evidence that, apart from providing accommodation, the grandparents made any regular contribution to the support of the Plaintiff's mother and her children after the time that the de facto relationship with Mr Currie commenced. 16 The Plaintiff asserts in paragraph 6 of her affidavit sworn 15 August 2003: "We were financially dependent upon my grandparents from in or about 1948 when we continued to reside with my grandparents and my grandparents continued to provide financial support for myself and my brother Paul, as well as my mother, even though she had married John Currie, until in or about 1953."