Martin v Public Trustee [2005] NSWSC 177

New South Wales Supreme Court

CITATION : Martin v Public Trustee [2005] NSWSC 177

HEARING DATE(S) : 31 January, 1 February 2005

JUDGMENT DATE : 7 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master McLaughlin at 1

DECISION : (1). I order that the Plaintiff receive from the estate of the late Brenda Martin ("the Deceased") a legacy in the sum of $60,000, such legacy not to bear interest if paid on or before 28 April 2005 and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. (2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. (3). The exhibits may be returned.

CATCHWORDS : Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Absence of contact by Plaintiff with Deceased. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of beneficiaries (who are children of the Plaintiff).

Family Provision Act 1982 LEGISLATION CITED : Wills, Probate and Administration Act 1898

CASES CITED : Singer v Berghouse (1994) 181 CLR 201

Cedric Martin (Plaintiff) PARTIES : Public Trustee (Defendant)

FILE NUMBER(S) : SC 4438 of 2003

Mr. R. D. Wilson (Plaintiff) COUNSEL : Mr. A. L. Hill (Defendant)

Turnbull Hill (Plaintiff) SOLICITORS : B. Maher (Defendant)

LOWER COURT JURISDICTION :

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

MASTER McLAUGHLIN

Thursday, 7 April 2005

4438/03 CEDRIC MARTIN v PUBLIC TRUSTEE JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 21 August 2003 Cedric Martin claims an order for provision for his maintenance, education and advancement in life out of the estate and/or the notional estate of his late mother, Brenda Martin (to whom I shall refer as "the Deceased"). 3 The Deceased, who was a widow at the time of her death, died on 1 July 2003, aged 87 years. She left a will dated 17 March 1997, probate whereof was on 28 August 2003 granted to the Public Trustee, the executor named in such will (who is the defendant to the present proceedings). 4 The inventory of property discloses the following assets of the Deceased at the time of her death: House property situate at and known as 12-14 Buchanan Street, Hamilton (to which an estimated value of $375,000 was ascribed) Moneys held with the Newcastle Permanent Building Society, totalling $27,364 Shares in companies, having a total value of $216,958 5 Subsequently, the house property was sold for $510,000 and the other assets of the estate have been realised. All liabilities of the estate (totalling less than $900) have been paid, except for the costs of the present proceedings and trustee tax liability. The present value of the estate held by the Defendant is $772,167. 6 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiff, if successful, will be entitled to have his costs paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have its costs paid out of the estate. 7 It has been estimated that the costs of the Plaintiff will total about $37,600, whilst those of the Defendant will total almost $40,000. 8 It is appropriate, therefore, that I should proceed upon the basis that the value of the distributable estate is about $694,500. 9 The Plaintiff is the only surviving child of the Deceased, the only other child of the Deceased, the Plaintiff's sister, Alison Martin, having died in 2001. 10 By her will, and in the events which have happened, the Deceased gave to her grandson Christopher Blair Martin a legacy of $5,000, and gave to her grandsons Neil Andrew Martin and Shaun Matthew Martin the remainder of her estate (after payment of debts, costs and other liabilities). Those three grandsons of the Deceased are children of the Plaintiff. The will made no provision for the Plaintiff. 11 It follows, therefore, that had it not been for the institution of the present proceedings Christopher would have received $5,000 and each of Neil and Shaun would have received about $383,500. If the value of the estate be reduced in consequence of the payment of the entirety of the costs of the present proceedings, but if the provisions of the will were to remain in effect, the value of the benefit to each of Neil and Shaun would be reduced to about $344,750. 12 (I intend no disrespect when I refer to each of the foregoing grandchildren of the Deceased by his given name.) 13 The Plaintiff was born on 6 March 1942, and is presently aged 63. He has been married twice. Of his first marriage, to Margaret in 1963, were born three sons, who are the three grandchildren of the Deceased named as beneficiaries in her will. They are: Neil, who was born on 12 April 1967 and is presently aged 37 Shaun, who was born on 24 June 1969 and is presently aged 35 Christopher, who was born on 3 June 1971 and is presently aged 33. 14 The Plaintiff and his first wife were divorced in 1985. On 1 November 1986 the Plaintiff (then aged 42) married his present wife Glynis (née McQueen), who was born on 15 September 1961 and at that time was aged 24. 15 Of the plaintiff's second marriage were born the following children: Remington (born 7 April 1990) Shelby (born 11 September 1995) Brogan (born 26 March 1998) Parker (born 23 November 2000) Saffron (born 18 June 2002)