Colebatch v Colebatch [2007] NSWSC 30

New South Wales Supreme Court

CITATION : Colebatch v Colebatch [2007] NSWSC 30

HEARING DATE(S) : 18, 19 and 20 October 2006

JUDGMENT DATE : 19 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 55

CATCHWORDS : Family Provision Act application. Claim by adult son. Legacy awarded. No mattter of principle.

PARTIES : James Gordon Colebatch v Eva Sophia Colebatch - Estate of Hal John Hester Colebatch

FILE NUMBER(S) : SC 1843/2005

COUNSEL : Mr P Hallen SC and Miss S Christie for plaintiff Mr L Ellison SC for defendant

SOLICITORS : Beilby Poulden Costello for plaintiff Tress Cox Lawyers for defendant

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

Associate Justice Macready

Monday 19 February 2007

1843/2005 JAMES GORDON COLEBATCH v EVE SOPHIA COLEBATCH (Estate of Hal John Hester Colebatch) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Hal John Hester Colebatch who died on 9 September 2004 aged 75 years. His wife from whom he was divorced had predeceased him. He was survived by his two children, James Gordon Colebatch, the plaintiff, and Eve Sophia Colebatch, the defendant. Last will of the deceased 2 The deceased made his last will on 16 June 2005 with a codicil dated 13 July 2004. Under his will he gave a legacy of $100,000 to his sister Mary Maude Winter. He gave his jewellery and personalty to his daughter, Eve. The residue of his estate was divided as to $1,000 to his son, James, and the balance to his daughter absolutely. Under the codicil the deceased reduced the legacy in favour of his sister from $100,000 to $20,000. His daughter, Eve, was appointed executor under the will. The deceased executed a statutory declaration at the time of his will explaining why he had only left James $1,000. I will return to the detail of the statutory declaration later when considering the relationship between the deceased and his children. Assets in the estate 3 In the application for probate the personalty and shares owned by the deceased were listed at $1,256,125. The deceased owned a unit jointly with his daughter, Eve, situated at 297 Malabar Road, Maroubra. His half share was estimated at $325,000 and was subject to a mortgage which at the date of death was approximately $250,000. 4 After the grant of probate Eve sold some shares and discharged the mortgage over the unit held jointly with the deceased. She arranged for a notice of death to be filed and the unit was transferred into her name. In addition she distributed the estate's shares to herself and paid the sum of $1,000 and $20,000 under the will. At the time she distributed the assets she knew that her brother intended to bring an application under the Family Provision Act. 5 At the date of hearing there is no estate and if an order is made it will be necessary to designate some assets which are held by Eve as notional estate. 6 It is also apparent that the estimate of the size of the estate was not accurate in the application for probate. In the hearing much time was taken up to try and identify what was the estate which was distributed by Eve to herself. It appears that the value of the estate shares which have been retained by the daughter at the date of hearing is $1,237,909. In addition Eve sold estate shares which produced proceeds of $369,058. She also received from the estate various bank accounts and items of furniture totalling $41,139.17. 7 At the hearing the value of the unit was reduced to $600,000 with the deceased's share valued at $300,000. As well as the capital items to which I have referred since the date of death Eve also received dividends from the estate shares in an amount of $131,591. 8 So far as liabilities are concerned the mortgage on the unit was paid out in the sum of $254,660.44. Including this amount the total amount of the debts which have been paid appear to be $302,953.61. 9 In addition there are costs. Eve Colebatch's costs up to the conclusion of the hearing are estimated at $155,958. She has already paid a large part of these costs. James Colebatch's costs amount to $85,508. Family history 10 The deceased was born on 30 November 1928 and in April 1953 he contracted poliomyelitis. His son, James, was born on 8 June 1955 and his daughter, Eve, on 13 August 1958. The deceased and his wife separated in 1971 when the deceased moved out of the matrimonial home and rented a property at Darling Point. The children remained in the family home with their mother. The deceased and his wife divorced on 9 June 1976. Between 1973 and 1978 James attended the University of New South Wales studying medicine as did his father. The deceased was a well-known specialist. In the period between 1978 and 1981 Eve lived in Canberra where she worked in the Department of Foreign Affairs and Trade. She frequently returned to Sydney to stay with the deceased during this period. 11 James Colebatch married his wife, Pnina, in London in November 1978 and he graduated in 1979 and was awarded the University Medal with First Class Honours. 12 In 1981 Eve Colebatch left Canberra and returned to Sydney. In 1981 the deceased made a will in which both his children shared his estate equally. In 1983 Eve moved to Melbourne and then Canberra where she commenced employment with the Department of Foreign Affairs and Trade. In 1985 the deceased was appointed Head of the Department of Respiratory Medicine at Prince Henry Hospital. 13 In 1987 James went to London where he worked until 1990.