Fairfield v Williams [2005] NSWSC 421

New South Wales Supreme Court

CITATION : Fairfield v Williams [2005] NSWSC 421

HEARING DATE(S) : 27 April 2005

JUDGMENT DATE : 28 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraphs 44 and 46

CATCHWORDS : Family Provision. Claim by a daughter left out of will. Proceedings dismissed. No matter of principle.

PARTIES : Robyn Anne Fairfield v Gary Williams - Estate of Violet Mary Griffiths

FILE NUMBER(S) : SC 5737 of 2005

Mr A L Hill for plaintiff COUNSEL : Mr L Ellison for defendant

Collins & Thompson for plaintiff SOLICITORS : Gray & Perkins for defendant

LOWER COURT JURISDICTION :

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

MASTER MACREADY

THURSDAY 28 APRIL 2005

5737/05 - ROBYN ANNE FAIRFIELD v GARY WILLIAMS - ESTATE OF VIOLET MARY GRIFFITHS, DECEASED

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the Estate of the late Violet Mary Griffiths, who died on 17 July 2003. She was survived by the plaintiff, her daughter, her son Allan, and the children of her deceased daughter, Lorraine. WILL OF THE DECEASED 2 The last will of the deceased was made on 14 March 2002. Her grandson, Gary Williams, was appointed the executor and under the will she left half her estate to her son Allan, and the remaining half equally between the children of Lorraine, Gary Williams, Mark Williams and Leanne Byrd. There was no provision made for the plaintiff in the will. 3 There was an earlier will of 14 February 1997 in which the deceased left one-half of her estate to the plaintiff and one-half to her son Alan. ASSETS OF THE DECEASED 4 The house of the deceased has now been sold and the estate reduced to cash. The current balance is $601,388.41. Costs have been incurred in this matter. The plaintiff's estimate of costs is $45,276, and the defendant's estimated at $53,819, a total of $99,095. If it were the case the plaintiff succeeded, this would leave an estate in the sum of $502,293. FAMILY HISTORY 5 The deceased married Victor John Griffiths on 20 June 1942. Her elder daughter, Lorraine, was born on 23 May 1945, and the son, Allan Griffiths, was born on 7 December 1947. Lorraine married in 1964. Robyn, the plaintiff in the proceedings, married John Fairfield on 27 September 1969. 6 It was in 1983 that the deceased's son, Allan, departed from Australia to live in the United States of America, where he has remained. 7 On 18 October 1993 the deceased's husband was placed in a nursing home. He was not well, and he had problems with his sight and other matters. He suffered a stroke on 6 July 1995. 8 On 22 August 1996 the deceased's daughter, Lorraine, died. At some stage after that, namely, 14 February 1997, the deceased made the will to which I have referred, and she also gave the plaintiff and her husband John a power of attorney. At that time the deceased's daughter Robyn arranged for a "vital call" to be placed on the deceased's telephone. 9 The deceased found it more and more difficult as she got old and in 2002 she moved in to live with Mark Williams, her grandson. She made a new will on 14 March 2002. The deceased admitted herself into hospital on 16 July 2003 and died on 17 July 2003. 10 Probate was granted on 23 October 2003 and the summons was filed on 12 November 2003. Accordingly the proceedings are within time. ELIGIBILITY 11 The plaintiff being a daughter of the deceased is an eligible person. In applications under the Family Provision Act, the High Court has set out in Singer v Berghouse (1994) 181 CLR 201 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' et cetera 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 et cetera 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.