Cruickshank v Public Trustee [2005] NSWSC 390

New South Wales Supreme Court

CITATION : Cruickshank v Public Trustee [2005] NSWSC 390

HEARING DATE(S) : 26/04/2005

JUDGMENT DATE : 26 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 36

CATCHWORDS : Family Provision. Application by daughter suffering from Downes' Syndrome. Order made for a legacy. No matter of principle.

PARTIES : Rhonda Cruickshank by her tutor the Protective Commissioner of NSW v Public Trustee - Estate of Beryl May Cruickshank

FILE NUMBER(S) : SC 5944 of 2002

Mr J. Armfield for plaintiff COUNSEL : Mr L.J. Ellison for defendant

E.H. Tebbutt & Sons SOLICITORS : Mr B.Maher

LOWER COURT JURISDICTION :

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

MASTER MACREADY

TUESDAY, 26 APRIL 2005

005944/02 - RHONDA CRUICKSHANK BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v PUBLIC TRUSTEE ESTATE OF BERYL MAY CRUICKSHANK

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Beryl May Cruickshank who died on 1 June 1997. The deceased was survived by her only child, the plaintiff, who is a Downes' Syndrome child, aged 53 years. Her husband had predeceased her. She was also survived by her friend, Ivy Kelly and her husband who had agreed to care for the plaintiff. THE WILL OF THE DECEASED 2 The deceased made her last will on 12 December 1996. In clause 2 she appointed the Public Trustee of New South Wales as executor. She then made the following provisions in clauses III to VI which are relevant to the application. "III. I give a life tenancy of my property known as 153 Flora Street, Sutherland (or any other property bought in its place as my principal place of residence) together with the furniture and furnishings in such property to my daughter Rhonda Cruickshank. On the death of my daughter such property is to pass to Richard Kelly and Ivy Kelly. If any such beneficiaries have not survived the lift tenant then their share shall pass (in equal shares) to their children if any of if no such children then the share shall be further divided (equally) among such residuary beneficiaries as are then living.