Eather v Maher [2006] NSWSC 746

New South Wales Supreme Court

CITATION : Eather v Maher [2006] NSWSC 746

HEARING DATE(S) : 24/07/2006

JUDGMENT DATE : 25 July 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 07/25/2006

DECISION : Paragraph 65

CATCHWORDS : Family Provision. Application by two children left out of the deceased's will. Consideration of circumstances surrounding the contact between the plaintiffs and deceased in last 12 years of his life. Held testator responsible for such difficulties. Order for provision made.

PARTIES : Grahame Barry Eather and Rochell Ann Campbell v Beryl Maher (Estate of the late Barry George Eather)

FILE NUMBER(S) : SC 3048/2005

COUNSEL : Mr RD Wilson for plaintiffs Mr D Williams for defendant

SOLICITORS : Turnbull Hill Lawyers for plaintiffs Smith Dunlop Lawyers for defendant

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 25 JULY 2006

003048/05 - GRAHAME BARRY EATHER AND ANOR v BERYL MAHER - ESTATE OF BARRY GEORGE EATHER

JUDGMENT 1 HIS HONOUR: This is the hearing of an application under the Family Provision Act in respect of the estate of the late Barry George Eather who died on 9 November 2004 aged 64 years. The deceased was survived by his three children, his former wife and a de facto partner who lived with the deceased for two years before his death. The will of the deceased 2 The deceased made his will on 11 October 2002 under which he appointed his sister the executor will. His house at 1 Ada Street Singleton was to be held for Valerie Eveleigh, his defacto partner, for her life or until she remarried. The remainder went to three of his son Michael's grandchildren; his insurance policies of $147,127.00 were left to his son Michael. The residue was to go to his sister. Assets in the Estate 3 The house is valued at $280,000. There was a funeral fund benefit of $1,700 and the proceeds of the insurance policies of $147,127.05. This is a total of $428,827.05. Liabilities 4 There were funeral and administration expenses of $17,256.09; legal costs of the defendant $47,441.00 and taxation liabilities of $15,550. That is a sub-total of $64,697.09. This leaves a net estate before the plaintiffs' costs of $364,129.96. The plaintiffs' costs are $47,236.00, leaving a net estate of $316,893.96. Family History 5 The deceased, Barry George Eather, was born on 31 January 1940. He was brought up in Singleton and worked on a farm and then on a milk run and later in his life worked at Warkworth Mine till he retired at the age of 60 years. 6 His sister, Beryl Maher, was born on 20 May 1938. His defacto partner, Valerie Dawn Eveleigh, was born on 26 February 1943. 7 The deceased married Beryl Ann Eather, formerly McTaggart, on 30 March 1963 and they had three children, Grahame Barry Eather born on 4 October 1963, Michael Leslie Eather born on 4 February 1965, and Rochelle Ann Campbell born on 6 August 1967. 8 The deceased, his wife and family had a difficult life together and eventually, in 1992, the deceased separated from his wife Beryl Eather. They had a property settlement in 1994, and in 1997 were divorced. In September 2001 the deceased was diagnosed with cancer. 9 On 6 October 2002 Valerie Dawn Everleigh commenced to live with the deceased at his home at number 1A Ada Street, Singleton which he had retained in the property settlement. He executed his will, as I have mentioned, on 11 October 2002. 10 On 9 November 2004 the deceased died. The summons was filed within time on 18 May 2005 and probate was granted on 31 May 2005. 11 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 the Court must take. At page 209 it is 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 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.