Morton v Little Price v Little [2005] NSWSC 36

New South Wales Supreme Court

CITATION : Morton v Little Price v Little [2005] NSWSC 36

HEARING DATE(S) : 04/02/2005

JUDGMENT DATE : 7 February 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 40

CATCHWORDS : Family Provision. Claims by two daughters who received minimal legacies. Large provision made for a charity. Daughters' provision increased. No matter of principle.

Janette Morton v David Little in the Estate of Genevieve Little PARTIES : Susan Price v David Little Estate of Genevieve Little

FILE NUMBER(S) : SC 1110/2004; 6209/2004

Mr L. Ellison for J. Morton COUNSEL : B. Sharpe for defendant

Maclarens Solicitors for J. Morton SOLICITORS : Gaden Lawyers for defendant

LOWER COURT JURISDICTION :

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

MASTER MACREADY

MONDAY 7 FEBRUARY 2005

1110/04 - JANETTE MORTON v DAVID LITTLE 6209/04 - SUSAN PRICE v DAVID LITTLE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Genevieve Little who died on 19 July 2002 aged eighty-eight years. She was survived by her four children, two of whom are plaintiffs in the proceedings. The defendant is one of the sons of the deceased and the executor of the estate. 2 The deceased made her will on 11 March 1997. In that will she gave one of her sons a legacy of $20,000 plus one half of her half share of the home at Roseville. Her other son received a similar legacy and a specific bequest. The plaintiff, Susan Price, received a sum of $20,000 and some paintings and Janette Morton, the other plaintiff, received $20,000 which was to be held in trust by her sister. The residue went to the Foundation for the National Parks and Wildlife and, to use the wording of the will, "to be used for the acquisition of land for the purposes of a national park or nature reserve." 3 At the present time the estate of the deceased consists of her half share of the land at Roseville worth $300,000, cash in the sum of $763,539.60 and shares of $24,466 giving a total of $1,088,005.60. Costs have been incurred in the matter fortunately in a modest way - costs for the plaintiff $25,500 and for the defendant $25,000. A short family history 4 The plaintiff Janette Morton was born on 2 June 1939, and the plaintiff Susan Price was born on 13 July 1940. The deceased's son, David, was born in 1942 and Andrew, the other son, in 1948. The deceased and her husband divorced in 1960. By 1966 the deceased and Janette Morton moved to Melbourne. There was an earlier will of the deceased in which she left everything equally to her children. 5 In 1975 Janette Morton commenced a de facto relationship and her daughter was born two years later. Unfortunately her relationship with the de facto partner ended in 1978. In 1980 she moved from Melbourne to Sydney. In 1981 the deceased moved to her home at Katoomba. In the following year Janette purchased a home at Bullaburra. In 1982 the deceased moved back to 43 Griffith Avenue, East Roseville. By 1987 the deceased was becoming frail, having had a fall at that stage and a head injury. In 1996 Janette Morton was diagnosed with chronic fatigue syndrome. 6 The deceased made her last will, as I said, on 17 March 1997. In 1998 she was found to be not capable of managing her affairs and Susan Price was appointed as manager of her property and her son, Andrew, appointed as guardian. She died on 19 July 2002. 7 The proceedings commenced by Janette Morton were commenced on 16 January 2004. Susan Price's proceedings are out of time, the proceedings having been commenced on 18 November 2004. I heard both matters together having made an order that evidence in one matter be evidence in the other. Both plaintiffs are of course daughters of the deceased and are thus eligible persons. 8 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 page 209 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 Company 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.