Allen v Public Trustee; Estate of Allen [2005] NSWSC 76

New South Wales Supreme Court

CITATION : Allen v Public Trustee; Estate of Allen [2005] NSWSC 76

HEARING DATE(S) : 8 and 9 February 2005

JUDGMENT DATE : 22 February 2005

Equity Division JURISDICTION :

JUDGMENT OF : Windeyer J at 1

DECISION : Application dismissed

CATCHWORDS : SUCCESSION - FAMILY PROVISION - claim by adult son - deceased left estate to plaintiff's siblings - no close relationship - no substantial contributions to welfare - plaintiff engaged in litigation resulting in substantial liability for costs - ability to control distribution of funds in discretionary trust.

LEGISLATION CITED : Family Provision Act 1982

Anthony Richard Allen (Plaintiff) PARTIES : The Public Trustee (Defendant)

FILE NUMBER(S) : SC 4428 of 2003

Mr CK Morrissey (Plaintiff) COUNSEL : Ms P Gormley (Defendant)

Dennis & Co (Plaintiff) SOLICITORS : Mr B Maher (Defendant)

LOWER COURT JURISDICTION :

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

WINDEYER J

TUESDAY 22 FEBRUARY 2005

4428/03 ANTHONY RICHARD ALLEN V THE PUBLIC TRUSTEE JUDGMENT 1 The Plaintiff, Anthony Allen (Mr Allen) seeks an order under the Family Provision Act 1982 for provision for his maintenance and advancement out of the estate of his father, Leo Francis Allen, who died on 30 October 2002, aged 83. 2 The deceased was married twice. His first wife, Betty Allen, died in 1994. He married his second wife, Joan, in 1998. She died in 2002, but before the deceased. 3 There were five children of the first marriage, Yvonne Elizabeth Allen, born 9 April 1948; Julianne Patricia Allen, born 18 March 1951, Richard Allen (the plaintiff), born 9 November 1952; Paul Allen, born 11 August 1954 and Garry Leo Allen born 26 December 1955. 4 The deceased left a will dated 24 June 1999, probate of which was granted to the Public Trustee on 28 March 2003. By that will, the deceased gave the whole of his estate in equal shares to his children, other than the plaintiff, Mr Allen. The plaintiff received no benefit. The will is in the form recently used by the Public Trustee. There is no problem about that, but I do set out clause 2.01 to show that modern forms do not necessarily coincide with clear or sensible expression: 2.01 If any child of mine does not survive me, but leaves children of their own who do and reach 21 years of age, I give to those children the share which would have gone to their parent. (This provision also applies in favour of any children which a child of mine has after my death who survive my child and reach the specified age). 5 The deceased had made at least one earlier will with the Public Trustee, that one being made in 1998. On making that will the deceased re-signed a document dated 4 April 1995, in which he explained why he had left a "lesser" share of his estate to the plaintiff. Those reasons were (a) that Mr Allen was well off financially and not in need of assistance; (b) that he had asked that no provision be made for him and (c) that "he attacked me physically at a Fathers Day celebration in 1993 causing me to telephone Dee Why and Forestville Police. The Police took out an apprehended domestic violence order but I withdrew it. I have not seen my son Anthony since, except when my wife died and at her funeral". This document was dated 4 April 1995 and was presumably relevant to a will of about that date. The deceased re-signed that document with the statement "confirm the above reasons still apply as at 25/3/98", which was apparently the date of the will immediately preceding his last will. It seems that the last will was in the same terms as the 1998 will and was executed as a result of the second marriage of the deceased. The will instruction form held by the Public Trustee, which is in evidence, includes the following note "only married recently. New wife does not want to deprive any of testator's children of their birthright except excluded son Anthony, with whom testator has broken contact after a violent argument after which testator took out an AVO". 6 The estate of the deceased at his death consisted of the following: