Waugh-Allcock v Allcock [2008] NSWSC 634

New South Wales Supreme Court

CITATION : Waugh-Allcock v Allcock [2008] NSWSC 634

HEARING DATE(S) : 29/05/08, 30/05/08, 02/06/08

JUDGMENT DATE : 15 August 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 15 August 2008

DECISION : Paragraph 85

CATCHWORDS : Family Provision application by widow under Family Provision Act. No competing claim. Consideration of disposition by plaintiff during her lifetime to her son. Order made for provision.

PARTIES : Rosemary Waugh-Allcock v Stephen Allcock

FILE NUMBER(S) : SC 5043/06

COUNSEL : C Simpson SC for plaintiff M Gorrick for defendant

SOLICITORS : McNamara James & O'Connor for plaintiff Proctor Willaws for defendant

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

Associate Justice Macready

Friday 15 August 2008

5043/06 Rosemary Waugh-Allcock v Stephen Allcock JUDGMENT 1 His Honour: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Edward Hall who died on the 15 November 2005 aged 86. The deceased was survived by the plaintiff, his widow, who is now aged 83 and four adult children from a prior marriage. The plaintiff's adult son, Rory (Alec) Wall, is the only other eligible person. He has been given notice and makes no claim. The will of the deceased 2 The deceased made his last will on 4 November 2005 and appointed the defendant, his son, as executor and trustee. In his will the deceased provided for a car to pass to the plaintiff together with various household effects. He gave his property at Short Street, Maclean, to his son the defendant, Stephen, and his interest in the property at Brooksby to his son Stephen and his daughter Alison. 3 The deceased had been a medical practitioner and apart from his country property he had a company Epalana Pty Limited which in his latter years held his investments. He gave his shares in the company to his daughters Alison and Catherine and his sons Stephen and Jonathan. In clause 7 of his will he provided a further benefit for his wife in these terms: " I give to my trustee all monies (if any) due to me in my loan account with Epalana Pty Ltd (currently approximately $386,000) UPON TRUST for my wife Rosemary to be paid by my trustees instalments of $12,000 every three months from the date of my death until the funds from the loan account has been fully paid out or my wife Rosemary has died " 4 He gave the residue of his estate to his four children. Assets in the estate 5 The deceased's estate at the date of death was sworn in the application for probate at $1,651,642. This did not take account of some $600,000 which the deceased distributed among his four children and the son of the plaintiff some two or three days before his death. 6 From the estate the executor purported to put aside a sum of $410,000 being what was said to be the outstanding amount of the loan account plus interest. It was disclosed in affidavits served the day before the hearing that notwithstanding that these proceedings had been commenced within time that since the commencement the balance of the estate being the real estate and the shares in the investment company had been distributed to the beneficiaries. 7 There have been costs incurred in the matter. The plaintiff's costs to the end of the hearing are estimated at some $105,968.20 and the defendant's costs are estimated at $67,500 Family history 8 Edward Allcock the deceased was born in June 1919 and Rosemary Waugh-Allcock the plaintiff was born in June 1924 at Maclean on the North Coast of New South Wales