Burnett v Public Trustee of New South Wales [2005] NSWSC 1293

New South Wales Supreme Court

CITATION : Burnett v Public Trustee of New South Wales [2005] NSWSC 1293

HEARING DATE(S) : 29 July 2005

JUDGMENT DATE : 15 December 2005

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 1. I order that the summons be dismissed. 2. I stand the matter over to a date to be fixed by arrangement with my Associate for submissions as to costs. 3. The exhibits may be returned.

CATCHWORDS : Succession. - Family Provision. - Claim by former de facto partner of Deceased. - De facto relationship obtained for only fourteen months. - It terminated more than forty-one years before the death of Deceased. - Plaintiff and Deceased thereafter maintained contact, essentially by letter and by telephone. - Financial and material circumstances of Plaintiff. - Whether there are factors which warrant the making of the application. - Whether, in any event, Plaintiff has established an entitlement to an order for provision. - Competing claims of beneficiaries named in will.

LEGISLATION CITED : Family Provision Act 1982

CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679

Dorothy Margaret Burnett (Plaintiff) PARTIES : Public Trustee of New South Wales (Defendant)

FILE NUMBER(S) : SC 5860 of 2004

Mr P. O'Loughlin (Plaintiff) COUNSEL : Mr A. Hill (Defendant)

Proctor Willaws (Plaintiff) SOLICITORS : Mr B. Maher (Defendant)

LOWER COURT JURISDICTION :

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

THURSDAY, 15 DECEMBER 2005

5860/04 DOROTHY MARGARET BURNETT v PUBLIC TRUSTEE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 29 October 2004 Dorothy Margaret Burnett claims an order for provision for her maintenance out of the estate of the late Clive Stephen Barry (to whom I shall refer as "the Deceased"). The Deceased died on 25 August 2003, aged almost 81. He left a will dated 26 November 1997. Letters of administration with that will annexed thereto were on 13 October 2003 granted to the Public Trustee (the instituted executor having renounced probate), who is the Defendant to the present proceedings. 3 By that will the Deceased gave to each of nine named persons one of nine specified pieces of real property (being mainly home units). The Deceased gave the residue of his estate to his sister-in-law, Lorna Elizabeth Barry, and his brother-in-law, James Patrick Gibson, in equal shares. 4 In addition to the nine pieces of real property (to which the inventory of property ascribed a total value of $3,600,000), the assets of the Deceased consisted of moneys in a bank account ($125,121), and shares in companies ($91,688). 5 The present total value of the foregoing items of real property is estimated to be $3,600,000. Apart from the administrator's costs of the present proceedings, all the liabilities of the estate have been paid, and the assets, apart from realty, have been realised. (The liabilities at the date of the Deceased's death totalled almost $26,000.) The current balance to the credit of the estate account is $215,157. The administrator's commission on the value of the unrealised realty is $46,200. In consequence, it is estimated on the part of the Defendant that the present net value of the estate is $3,768,957. 6 In calculating the value of estate available for distribution the costs of the present proceedings must be taken into consideration, since if the Plaintiff is successful in her claim she will be entitled to an order that her costs be paid out of the estate, whilst the Defendant will be entitled to receive his costs out of the estate, irrespective of the outcome of the proceedings. It is estimated on behalf of the Plaintiff that her costs will total a little over $44,000, whilst it is estimated on behalf of the Defendant that his costs will total $30,500. That is, the totality of the costs of both parties will be about $74,500. In consequence, the net value of the distributable estate is about $3,694,500.