Foley v Foley Foley v Foley [2008] NSWSC 233

New South Wales Supreme Court

CITATION : Foley v Foley Foley v Foley [2008] NSWSC 233

HEARING DATE(S) : 12/03/08

JUDGMENT DATE : 13 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 13 March 2008

DECISION : Paragraph 68

CATCHWORDS : Family Provision. Application by widow and former wife. Widow left $600,000 in will of deceased. Estate approximately $1m. Widow's claim dismissed as sufficient provision made in will. Former wife's claim refused as insufficient explanation for delay in making application.

PARTIES : Carmen Foley v Lyndon Foley (Estate of late Maurice Foley) Betty Foley v Lyndon Foley (Estate of late Maurice Foley)

FILE NUMBER(S) : SC 4104/2008; 4793/2007

Ms N Obrart for Carmen Foley COUNSEL : Mr A Lakeman for Betty Foley Mr J Turnbull for defendant

Paul Nass for Carmen Foley SOLICITORS : Anderson & Sjoquist for BettyFoley Yuill Lawyers for defendant

LOWER COURT JURISDICTION : Compensation Court

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

ASSOCIATE JUSTICE MACREADY

THURSDAY 13 MARCH 2008

4104/06 CARMEN ESPERENZA FOLEY v LYNDON STUART FOLEY - ESTATE OF THE LATE MAURICE LINDSAY FOLEY

4793/07 BETTY FOLEY and ANOR v LYNDON STUART FOLEY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the late Maurice Lindsay Foley who died on 8 September 2004 aged 86 years. He was survived by his second and third wives who are the plaintiffs in the two proceedings which I have heard together, with the evidence in one being evidence in the other. 2 Another plaintiff, Julie Widman, is a step-daughter of the deceased but she no longer presses her claim. 3 The deceased was first married to Margaret Foley, with whom he had three daughters. There was no contact between the deceased and these after the second marriage. I have heard evidence of attempts to locate them and I am satisfied that it is impractical to give them notice under section 20 of the Act. The last will of the deceased 4 This was made on 5 April 2004. By it he gave his third wife, Carmen, a legacy of $600,000 and gave the residue to his son, the defendant. The defendant is the son of his second marriage. Estate of the deceased 5 The estate consists now of: (a) his former matrimonial home in Warriewood valued at about $750,000. (b) cash held in the estate of $320,000. 6 There has been a transfer to that defendant of cash and shares worth $56,000. There has been transferred to the defendant a joint bank account of $19,040 and the car worth, at the date of death, $8,000. 7 Costs have been incurred in the matter. The plaintiff Carmen's costs amount to $35,000; the plaintiff Betty's costs amount to 33,003; $27, and the defendants $32,000. Family History 8 The deceased was born on April 1918 and his second wife Betty was born in July 1925. His third wife, Carmen, was born in May 1945. Betty herself had been married before to John Reddan in 1949 and she had two children, Peter born in July 1956 and Julie born in January 1958. She separated from her husband in 1959. In 1960 she commenced a de facto relationship with the deceased. 9 Very soon after Lyndon, the defendant, was born in November 1964 and Betty and the deceased married in May 1968. They separated at some time in 1974 or 1975 and a decree nisi was granted in January 1950. As a result of that the deceased kept the matrimonial home at 27 Kingsway Street, Dee Why. Betty had before the divorce purchased a unit at 5/7 Kempsey Close, Dee Why which was fully mortgaged. 10 In 1980 the deceased met his third wife, Carmen, overseas in the Philippines and he married her in June 1980. In 1981 the deceased sold the matrimonial home at Kingsway Street, Dee Why for $86,000. He purchased another place which was used as their home at 32 Fisher Road, Dee Why for $105,500. The plaintiff did not contribute to the capital costs of this purchase. They thereafter resided in that as their home for 18 years until 1999. 11 It was in the mid-1980s the deceased ceased his work as a builder and started to become frail in the 1990s. In 1992 his second wife, Betty, and her son Lyndon purchased a property at North Narrabeen. 12 In a will made on 4 April 1996 the deceased provided for his then wife, Carmen, by providing that his trustee could spent $200,000 plus some CPI increased from the date of the will to purchase a property to hold for her for her life, and left the residue to his son Lyndon. In 1997 he updated this to $300,000 plus the CPI. 13 In 1999 the deceased sold their then matrimonial home at Fisher Road, Dee Why for $900,000. He purchased a new home for them at Oaks Avenue, Dee Why for $255,000 and a unit at Dee Why Parade, Dee Why for $255,000. 14 The following year he sold the Dee Why Parade property for $269,000 and purchased what was to become the final matrimonial home at Streamdale Grove, Warriewood for $484,000 using the proceeds of the sale from the De Why Parade property and cash left over from the sale of the matrimonial home at 32 Fisher Rd, De Why. Once again there were no contribution to the capital cost by the plaintiff Carmen. 15 In 2000 Betty and Lyndon sold their home and moved to a new home that Lyndon purchased at Warriewood. 16 In 2002 Carmen ceased the work which she had been carrying out as a dressmaker to care for the deceased as he became somewhat more frail. By 2003 she suggested she was a full-time carer. In March of 2004 the will was changed to increase the capital cost of the unit to be purchased to $400,000 17 I have already mentioned that in April 2004 the final will was made. It was an absolute gift of $600,000 to the plaintiff Carmen with the residue to Lyndon. The deceased died on 8 September 2004 and the 18 month period within which any claims under the Act had to be made expired on 8 March 2006. Probate was obtained on 19 November 2004. 18 The summons was filed by Carmen on 25 July 2006, four months out of time. The summons was filed by Betty Foley and Julie Widman on 26 September 2007, which was some 17 months out of time. Extension of time 19 Because the application is out of time it is necessary for the Court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case there will justify the grant of the intelligence sort. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."