Fletcher v Fletcher [2007] NSWSC 728

New South Wales Supreme Court

CITATION : Fletcher v Fletcher [2007] NSWSC 728 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 04/07/07, 05/07/07, 06/07/07

JUDGMENT DATE : 6 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 174

CATCHWORDS : Family Provision. Applications by children and stepchildren under Family Provision Act 1982 for provision. Orders for legacies. No matter of principle.

Amanda Lee Fletcher v Jason Ross Sydney Fletcher PARTIES : Brett John Fletcher v Jason Ross Sydney Fletcher Gregory Joseph Fletcher v Jason Ross Sydney Fletcher Michael Walton v Jason Ross Sydney Fletcher

FILE NUMBER(S) : SC 4767/05; 2180/06; 2084/06; 2918/07

Mr JS Drummond for Amanda Mr CM Simpson SC for Brett COUNSEL : Mr L Ellison SC for Gregory Mr R Colquhoun for Michael Mr M Meek for defendant

Hilton King Solicitors for Amanda L. Rundle & Co for Brett SOLICITORS : Heckenberg Associates for Gregory Fitzpatrick Solicitors Pty Ltd for Michael Carroll & O'Dea for defendant

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

Associate Justice Macready

Monday 6 August 2007

4767 of 2005 Amanda Fletcher v Jason Fletcher 2084 of 2006 Gregory Fletcher v Bruce Fletcher 2180 of 2006 Brett Fletcher v Jason Fletcher 2918 of 2007 Michael Walton v Jason Fletcher JUDGMENT 1 His Honour: This is the hearing of four applications under the Family Provision Act 1982 (NSW) in respect of the estate of the late Sydney Ernest Fletcher who died on 17 April 2005, aged 79 years. His last wife did not survive the deceased but a number of stepchildren and two of his natural children survived him. Four of the children have made applications to the Court and the other child is a defendant in the proceedings. I have ordered all matters to be heard together and that the evidence in one be evidence in the others. Will of the deceased 2 The deceased left an undated will which appears to have been signed on or after 17 November 2000. Under that will he appointed his nephew, Bruce Fletcher, as executor and left his entire estate to his son Jason Fletcher. Probate has not been obtained in respect of the will but a Grant of Administration has been obtained to enable the present proceedings to be brought. Assets in the estate 3 At the date of the deceased's death the estate comprised cash in a bank account of $8,273.58, furniture and effects worth $10,000 and a Ford Falcon wagon valued at $2,000. Funeral expenses have been paid out of these assets. The deceased had a property at 58 Beach Drive, Woonona which was his principal residence and this was transferred to his son Jason on 14 October 2003. The transfer had a stated consideration of $980,000. That sum was not paid but Jason paid the stamp duty on the transfer in the sum of $39,594. 4 The evidence before me clearly established that the transfer to Jason was entered into by the deceased with the intention to deny wholly or in part, provision for the maintenance, education or advancement in life of Gregory Fletcher and Brett Fletcher. The transfer was made less than three years before the death of the deceased. 5 The present value of the property was the subject of a dispute between valuers called by the respective parties. Mr Dignan, called by the defendant Jason, valued the property at $950,000 and Mr Brook, another valuer, valued it at $1.2 million. I will deal with the difference later in this judgment. 6 Substantial costs have been incurred in these proceedings. The estimates are as follows: Amanda $85,757 Gregory $62,397 Brett $60,385 Michael $63,104 Jason $62,362 Total $334,005 Family history 7 The deceased's eldest son Michael was born on 20 October 1954. Michael was the son of the deceased and Betty Walton. The deceased married for a second time on 17 March 1973. He married Barbara Izzard with whom he worked at TNT. At the time of their marriage, Barbara had three children from her former marriage to Colin Izzard. All three children became part of the deceased's household, and they are: Brett Fletcher, born on 4 September 1962 (aged 44) Gregory Fletcher, born on 8 October 1965 (aged 41) Amanda Fletcher, born on 27 April 1968 (aged 39) 8 The deceased and his second wife, Barbara, had one child of that marriage, Jason. He was born on 24 October 1973 (now aged 33) and he is the defendant in the proceedings. One child and three stepchildren are plaintiffs in the proceedings. 9 The deceased's first marriage was to Betty Spencer Walton. The evidence before me discloses that the deceased was granted a decree nisi on 15 March 1973 and on the hearing of that application the court ordered that the decree become absolute within 48 hours. Immediately on the decree becoming absolute the deceased married his second wife, Barbara. 10 It appears that the first marriage of the deceased occurred in Sydney on 23 April 1949. There was no evidence available to be called before me as to the whereabouts of the first wife if she were still alive. Accordingly, I am satisfied that service of a notice on the first wife under section 20 of the Act is impracticable. 11 The parties have helpfully provided chronologies of the family history some of which I will incorporate with modifications into this judgment. 12 The deceased was born in 1926. His second wife, Barbara Fletcher, was born on 7 August 1936.