Taylor v Bartlett [2005] NSWSC 980

New South Wales Supreme Court

CITATION : Taylor v Bartlett [2005] NSWSC 980

HEARING DATE(S) : 26/09/05

JUDGMENT DATE : 26 September 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraphs 30 - 33

CATCHWORDS : Family Provision. Application by daughter, the only eligible person, who was omitted from the will. Order for provision. No matter of principle.

PARTIES : Sandra June Taylor v Doreen Ivy Bartlett and Anor (Estate of Late Edna McDonald)

FILE NUMBER(S) : SC 2640 of 2004

Mr R. Brender for plaintiff COUNSEL : Mr C. Simpson for defendants

Campbell Paton & Taylor for plaintiff SOLICITORS : Foott, Law & Co for defendants

LOWER COURT JURISDICTION :

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

ASSOCIATE JUSTICE MACREADY

MONDAY 26 SEPTEMBER 2005

NO2640/04 - SANDRA JUNE TAYLOR v DOREEN IVY BARTLETT & ANOR

JUDGMENT:

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Edna Dardanellers McDonald, who died on 7 October 2003. She was survived by her daughter, the plaintiff. The deceased's first husband and her second husband pre-deceased her. THE LAST WILL OF THE DECEASED 2 The deceased made her will on 16 December 1996. She left a legacy of $5,000 to a friend, Beryl Abbott, and she left the residue to the defendants equally. Doreen Bartlett was the deceased's sister in law and Alan Shore was a friend for many years of the deceased and her husband. 3 The plaintiff was omitted from the will. In her will the deceased said that she had not made provision in her will for her daughter because she had made adequate provision in her lifetime. What was the "provision" was not expanded upon, and I will come to that later. THE ESTATE OF THE DECEASED 4 The estate has been reduced to cash and amounts to $243,066.31. The plaintiff's costs are estimated at $30,000, the defendant's at $35,000, leaving a net cash balance of $178,066. There is some jewellery which is valued at $2,110. THE FAMILY HISTORY 5 The plaintiff's parents were apparently married on 17 December 1939 and the plaintiff was born on 2 April 1944. The plaintiff's parents separated in the late forties, when the plaintiff was four years old. In March 1951 the plaintiff contracted polio and that treatment continued up until 1962. Effectively for some five months at the commencement of the illness the plaintiff was confined to full time rest at home. The deceased remarried on 25 September 1952 to Mr Alan McDonald. There were no children of this second marriage. 6 By 1961 the plaintiff was completing her schooling, was offered several scholarships and accepted one to attend Sydney Teachers College. She stayed at home for another two years while she attended college and then moved to her first teaching position at Molong in the State of New South Wales. She met her husband, also a teacher, and they married in 1966, in which year she transferred to live in Orange. 7 At that stage the deceased and Mr McDonald sold their property at Curl Curl and moved to Grafton. 8 In 1968 the plaintiff and her husband purchased their home, which was four acres on the outskirts of Orange. The plaintiff has two children, one born in 1971 and one in 1973. At this stage the deceased and Mr McDonald came to Orange and the plaintiff and her husband mortgaged a property to lend $5,000 to the deceased to complete the purchase of the deceased's property at that stage. They remained there until 1976, when they sold the property and moved back to Grafton. The loan was repaid at that stage. 9 The evidence records that in the mid eighties the plaintiff travelled to stay with her mother after a skin cancer operation. It was in 1989 that eventually the plaintiff was fortunate enough to have contact with her father. She had had no contact with him since she was four years of age and her mother had discouraged contract by refusing to disclose her father's name. 10 In 1990 Mr McDonald, the deceased's second husband, died and the deceased simply told the plaintiff by sending her a note in the mail sometime after his death. In 1992 the plaintiff's father died and she received some $20,000 from him. I will come back to the circumstances of the contact between the plaintiff and the deceased. The last contact was in 1995. 11 In 1996 the plaintiff received disabilities as a result of an assault which she occasioned in her employment as a school teacher. 12 The deceased made her last will, as I have said, on 16 December 1996. She died on 7 October 2003. 13 The legatee, Beryl Abbott, who received a legacy of $5,000 died on 8 May 2004. ELIGIBILITY 14 Plainly the plaintiff is an eligible person, being a daughter of the deceased. In fact, she is the only eligible person following the death of the deceased. 15 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following: "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' etc 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 etc 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."