Murphy v M.F. Stewart - Estate P.E. Stewart [2004] NSWSC 569

New South Wales Supreme Court

CITATION : Murphy v M.F. Stewart - Estate P.E. Stewart [2004] NSWSC 569 HEARING DATE(S) : 25 and 28 June, 2004 JUDGMENT DATE : 28 June 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Summons dismissed with costs.

CATCHWORDS : FAMILY PROVISION ACT - CONDUCT - DOMESTIC VIOLENCE - Applicant, a former husband of the deceased, subjected her to violent physical and emotional abuse - applicant supported by deceased and made no contribution to deceased's assets. - HELD: Applicant's conduct during and after relationship with deceased did not warrant the making of the application. LEGISLATION CITED : Family Provision Act 1982 (NSW) - s.9(1) - Churton v Christian (1988) 13 NSWLR 241 CASES CITED : - Fulop, Re (1987) 8 NSWLR 679 - Walker v Walker (unrep.) 17 May 1996 per Young J PARTIES : Michael Wayne Murphy - Plaintiff Mary-Ann Farquharson Stewart - Defendant FILE NUMBER(S) : SC 1317/02 COUNSEL : J.E. Armfield - Plaintiff L.J. Ellison - Defendant SOLICITORS : Ken le Lievre - Plaintiff Gray & Perkins - Defendant

Introduction

1 The Plaintiff, a former husband of Patricia Eileen Stewart ("the Deceased"), seeks an order that provision be made for him out of the Deceased's estate pursuant to the Family Provision Act 1982 (NSW) ("the Act"). 2 The Deceased was born in 1941. Some time prior to 1959 she married Mr Peter Pearson. In July 1959 a child was born of that marriage, Marc Timms. Mr Timms has made a claim against the Deceased's estate under the Act but that claim was compromised very shortly before the trial commenced. 3 In about 1966 the Deceased divorced Mr Pearson and married Mr Duncan Stewart. On 26 September 1966 a child was born of that marriage, Mary-Ann Stewart, who is the present Defendant. 4 In May 1986 the Deceased and Mr Stewart separated. At about the same time the Deceased and the Plaintiff began to co-habit in a house at 7 Bennett Street, Newtown, of which the registered proprietor was the Defendant. 5 On 11 February 1987, the Deceased made a will in which she left the whole of her estate to the Defendant. 6 Some time in 1987 the Deceased and Mr Stewart were divorced, and on 2 December 1987 the Deceased and the Plaintiff married. Both parties accept that the marriage had the effect in law of revoking the Deceased's prior will in favour of the Defendant. 7 In April 1987 a property at 54 Forbes Street, Newtown, was purchased by the Deceased. She and the Plaintiff lived there until about November 1994 when the Plaintiff moved out. They did not co-habit thereafter. 8 On 18 February 1996, the marriage of the Deceased and the Plaintiff was dissolved. No property settlement order was sought by the Plaintiff. 9 In March 1995, the Deceased had commenced co-habitation with Mr James McKenzie. Mr McKenzie has made a claim against the Deceased's estate under the Act, but that claim was compromised at the commencement of the trial. 10 The Deceased died on 16 December 2000. The Defendant applied for a grant of probate of the Deceased's will dated 11 February 1987 and probate was granted to her on 23 February 2001. 11 By Summons filed on 12 July 2001 in proceedings 3537 of 2001, Mr Timms sought an order for provision out of the Deceased's estate. By Summons filed on 14 December 2001 in proceedings 5962 of 2001, Mr McKenzie sought an order for provision out of the estate. By Summons filed on 30 January 2002 in proceedings 1317 of 2002, the present Plaintiff sought an order for provision out of the estate. By Summons filed in the Probate List in proceedings 112553 of 2003, the present Defendant sought orders revoking the grant of probate to her of the Deceased's will dated 11 February 1987 and the granting to her of letters of administration. By Summons filed on 28 May 2004 in proceedings 3149 of 2004, the present Defendant sought an order for provision out of the estate, as a fall-back position. 12 All matters have been case managed concurrently and all came on for hearing before me on 25 June 2004. As I have noted, a number of the proceedings have been settled. The proceedings instituted by Messrs Timms and McKenzie have been disposed of; the grant of probate to the present Defendant has been revoked and letters of administration have been granted to her; the present Defendant's application for provision out of the estate has been dismissed by consent because it is accepted that the contest over the estate is now between the Plaintiff, seeking an order under the Act, and the Defendant as next of kin on intestacy. 13 Accordingly, the sole matter in contest before me is the present Plaintiff's claim under the Act. In those proceedings, Mr Armfield of Counsel appears for the Plaintiff and Mr Ellison of Counsel appears for the Defendant.