Mitchell v Hamitlon [2005] NSWSC 1097

New South Wales Supreme Court

CITATION : Mitchell v Hamitlon [2005] NSWSC 1097

HEARING DATE(S) : 26 and 27 October 2005

JUDGMENT DATE : 1 November 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 52

CATCHWORDS : Family Provision Claim by a daughter in respect of an estate the whole of which passed to her brother.Plaintiff's sister appointed executor. Thus all necessary parties to the action. Small estate and a legacy ordered in favour of the plaintiff. Defendant trustee's costs reduced because of unnecessary involvement in action given the role of the other parties.

PARTIES : Noeline Louise Mitchell v Doreen Jean Hamilton & William H. Boyd (Estate of William Mervyn Boyd)

FILE NUMBER(S) : SC 3879 of 2004

M. Meek for plaintiff P. Strasser for 1 defendant COUNSEL : L. Ellision SC for 2 defendant

Baker Deane & Nutt for plaintiff SOLICITORS : Grech Partners for 1 defendant Maclarens for 2 Defendant

LOWER COURT JURISDICTION :

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 1 NOVEMBER 2005

3879/04 - NOELENE LOUISE MITCHELL - IN THE ESTATE OF WILLIAM MERVYN BOYD v DOREEN JEAN HAMILTON & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late William Mervyn Boyd who died on 11 November 2003 aged seventy-six years. He was survived by his three children who are the parties to the proceedings. The Last Will of the Deceased 2 The last will was made on 28 May 2003. The first defendant was appointed the executor and the whole of the estate was given to the second defendant, William Boyd. In that will in cl 9 the deceased said: "I DECLARE that I have not made any provision in this my Will for my daughters DOREEN HAMILTON and NOLEEN MITCHELL as although I hold them in affection and love, I am satisfied that I have adequately provided for them during their lifetime and that they are well able to provide for themselves and their families." 3 The evidence before me certainly establishes that the plaintiff has not been adequately provided for during her lifetime and is not able to provide for herself. 4 There had been an earlier will of 15 September 1999 which left the estate to the three children equally. The Estate of the Deceased 5 Apart from minor personal possessions and some small items of cash and shares, the deceased owned his house at 6 Stephens Street, Blacktown and a car. Both were transferred to William in February 2004. The car was worth $3,000 and the present value of the house is valued at between $270,000 to $320,000. Some of the IAG shares were sold and a bank account collected by the executors. The funds were used to pay legal expenses of administration and a balance of $1,299.07 is held by the estate's solicitors. 6 Costs have been incurred in this matter. The plaintiff's are estimated on a one day basis in the sum of $32,852.96. The second defendant's costs on a one day basis were estimated at $25,859.73. The first defendant's costs on a two day basis were estimated after amendment at about $47,000. This is a total of $105,712. 7 The trial did in fact go for two days and, accordingly, one can assume that the costs of the plaintiff and the second defendant would be greater. 8 If an order is made it is clear that the home will have to be sold. If there is no order made the second defendant, William, has a loan approved of some $60,000 to meet his own costs. There is, however, another liability, and that is in this case the first defendant proposes to claim commission. One is then looking at a net estate of somewhere around or under $180,000. Family History 9 The testator was born on 29 July 1927. Noelene was born on 5 March 1952. In 1960 the family moved to Blacktown and in 1963 William, the second defendant, was born. 10 The plaintiff married in December 1972 and they moved out of the home in 1974. William married in 1985 and apparently lived away from home at that stage. In early 1988 he came back to live with the deceased along with his wife. Their daughter Rebecca was born in March that year. 11 In 1989, early in the year, the plaintiff and her family moved to Queensland. She did not see the deceased until 1999 when she was back in Sydney at that stage, although she had kept in contact. 12 The deceased's wife died on 26 March 1989. Shortly prior to this there were a number of discussions about what would happen to the house and I will return to the details of this somewhat later. 13 In July 1989 William's daughter Samantha was born and in 1991 the plaintiff, who had purchased a home at Beaudesert in Queensland fell on hard times and she and her husband lost their Queensland house. In June 1994 they eventually went bankrupt. William's two sons, Matthew and Mark were born in 1992. 14 On 21 August 1997 there is a solicitor's file note, to which I will return, in which the deceased discussed a document which was said to have been executed just after his wife died and in which the children apparently agreed that the property was to go to William. 15 In 1999 William moved out of the deceased's home to live with his mother-in-law. This was apparently because she needed care and attention at that stage. The family, of course, moved with him. 16 On 15 September 1999 there was the will of the deceased in which he left his estate to the three children and the will, which was his last will, was made on 28 May 2003. The testator died on 11 November 2003. Probate was granted and these proceedings were commenced within time. Probate was granted on 24 December 2003 and the property was transferred to the defendant William on 5 February 2004. 17 In January 2005 William and his family moved back in to live in the deceased's home. Apparently it had been vacant for some time. 18 Plainly the plaintiff is an eligible person. 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 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 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. 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."