Cantrell v Williams [2004] NSWSC 579

New South Wales Supreme Court

CITATION : Cantrell v Williams [2004] NSWSC 579 HEARING DATE(S) : 28/06/04 JUDGMENT DATE : 28 June 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Orders made.

CATCHWORDS : SUCCESSION [336]- FPA- Burden of orders- How discretion might be exercised- Family Provision Act 1982, s 13 LEGISLATION CITED : Family Provision Act 1982, s 13 Kleinig v Neal [1981] 1 NSWLR 462 CASES CITED : Re Seery (1969) 90 WN (Pt 1) (NSW) 400 Schaefer v Schuhmann (1971) 46 ALJR 82; [1972] AC 572 PARTIES : Tanya Cantrell (P) Linda Williams (D) FILE NUMBER(S) : SC 1097/02 COUNSEL : M S Willmott SC (P) C S Leahy SC and M Pesman (D) SOLICITORS : Turnbull Hill Lawyers (P) Schrader & Associates (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Monday 28 June 2004

1097/02 – CANTRELL v WILLIAMS; ESTATE OF THOMAS BRINDLE JUDGMENT 1 HIS HONOUR: These proceedings have been compromised in a very sensible way. Of an estate worth approximately $406,000, the plaintiff/de facto wife will receive about $105,000 in property. That then leaves, when one takes into account the estate's costs and capital gains tax, about $210,000. 2 On my calculations, if no order were made under s 13 of the Family Provision Act 1982, the two children would receive $52,500 each, and the three stepchildren $35,000 each, in view of the construction of the will that I reached in my judgment in 3999/03. 3 Mr Leahy SC and Mr Pesman, for the estate, say that it is fair and equitable that the burden be borne solely by the stepchildren. They say this because the focus of the will was for benefaction of the children. 4 I discount this submission, but it has some weight. Secondly, there was evidence in the suit of some needs by the children, but there was no evidence at all of any need on behalf of the stepchildren. 5 Furthermore, the children seem to have been far closer to the deceased, especially during his last few years, than the stepchildren, some of whom live interstate. 6 I asked the solicitor for the stepchildren whether he had any submissions to make and he answered in the negative. 7 Section 13 confers on the court a very wide discretion to be exercised according to the rules of reason and justice, with due regard to the whole of the surrounding circumstances: Re Seery (1969) 90 WN (Pt 1) (NSW) 400, 409. This decision was, of course, reversed in the Privy Council sub nom Schaefer v Schuhmann (1971) 46 ALJR 82; [1972] AC 572, but that does not affect its authority on the present point. 8 It would seem to me from Re Seery and from Kleinig v Neal [1981] 1 NSWLR 462 at 464-5, that the most appropriate way of looking at the case is to ask what the testator would be more likely to have done, had he been faced with the situation that emerges after the decision of the court: see also Dickey on Family Provision After Death (LBC, Sydney, 1992) p 163. 9 If the order which Mr Leahy and Mr Pesman seek were made, it would seem to me to reduce the amount payable to the stepchildren to $26,000 each, with a corresponding increase in the children's benefaction. Furthermore, it seems to me that it is more likely than not, on the scanty information that I have, that this would be in accordance with the testator's wishes. 10 Accordingly, I will make the orders 1 to 7 in the short minutes of order.