Clarke v Clarke [2008] NSWSC 1130

New South Wales Supreme Court

CITATION : Clarke v Clarke [2008] NSWSC 1130

HEARING DATE(S) : 28/10/08

JUDGMENT DATE : 29 October 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 29 October 2008

DECISION : Paragraph 47

CATCHWORDS : Family Provision. Application under Family Provision Act by a daughter who was left nominal provision. Daughter's legacy increased. No matter of principle.

PARTIES : Christine Clarke v Michael Clarke (Re estate of the late Janet Clarke)

FILE NUMBER(S) : SC 2091/2007

COUNSEL : Mr B Sharpe for plaintiff Mr D Jay for defendant

SOLICITORS : Turnbull Hill Lawyers Gain Kent McRae for defendant

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

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 29 OCTOBER 2008

1846/07 CHRISTINE CLARKE v MICHAEL CLARKE - RE ESTATE OF THE LATE JANET CLARKE

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Janet Clarke who died on 9 November 2006. The plaintiff is the adopted daughter of the deceased and the defendant is one of her sons. The other son has been given notice and makes no claim. The deceased husband pre-deceased her in August 2005. The last will of the deceased 2 The deceased made her last will on 13 July 2006. Under that will she appointed her son Michael Clarke the executor. She gave her property at Norfolk Avenue, Wagga Wagga to him to hold for his own son, Harold when he reaches 25 years of age. She gave the plaintiff a legacy of $10,000 and gave the residue of her estate to her son, the defendant. He makes no claim for further provision by way of cross-claim. The estate of the deceased 3 The house at Wagga Wagga has not been sold and is estimated to have a value of $250,000. Apart from some personal effects the balance of the estate after meeting administration expenses and an amount of cash totals some $69,450 65. 4 The defendant's costs are estimated in the sum of $35,000 and those of the plaintiff in the sum of $45,000. Family history 5 The deceased was born on 6 July 1935 and her son Harold was born in 1960. Her son Michael, the defendant was born on October 1961 and the plaintiff, Christine, was born but not to her in November 1965. 6 In 1966 early in the year Christine came to reside with the Clark family in their home at Wagga Wagga. In August 1972 Christine was formally adopted by Harold and Janet Clarke. 7 At about the time the plaintiff moved to Yarrawonga in Victoria and in 1979 the defendant moved out of home and went to live in Melbourne. In 1982 the plaintiff was attending a TAFE College in Wagga Wagga. 1984 the plaintiff and her parents moved to a residence at 36 Norfolk Ave, Wagga Wagga which the deceased owned at the date of her death. 8 In 1985 the plaintiff moved to Sydney where she started work as a live-in nanny. In the 1993 she commenced a relationship with Mark Serong. In 1998 the defendant had his son, Harry, who was born in May of that year. The plaintiff in 1999 married her husband Mark Serong. The following year in January 2000 Michael suffered an injury in an accident at home and he has been on a disability support pension since then. On 2 June 2001 the deceased and her husband had their 50th wedding anniversary, in which the plaintiff and other family members participated. 9 In September 2001 the plaintiff Christine and her husband had twins Dylan and Calais. Unfortunately in February 2004 the plaintiff and her husband separated. She then applied for public housing in Wagga Wagga. In 2005 as a result of efforts from a friend whom she met by a chance meeting, Mr John Couper, she managed to obtain accommodation in his house. She has to sleep on a couch in the living room and the children have a bedroom which they can share. 10 It is plain from the evidence they are not in a de facto relationship and that it is a platonic relationship to both parties advantage. 11 If February 2005 she was offered some housing accommodation in Wagga Wagga but declined as it was not in a suitable area. In March 2005 she was offered a further property but declined, basically because she was settled in where she was and she did not want the expense of moving again. That led to her being removed from the Housing Register as she had been offered a house twice. 12 In June of that year as the party's father Harold was in decline, Michael returned to assist in his care. 13 In the course of the plaintiff and her children living with John Couper they had an opportunity to accompany him on a holiday in Fiji for 10 days. This they did from June to July 2005. These holidays, which happened each year, were ones where he paid for the trip but they lived their own separate lives on holidays. Mr Couper had business interests for many years in Fiji. 14 In November 2005 Michael returned back to his home at Mullumbimby, and in December 2005 he came down again to assist in the care of his mother. She died on 9 November 2006. Probate was granted in January 2007 and on 16 March 2007 the plaintiff made this claim, which is within time. Eligibility 15 The plaintiff is an eligible person. 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 a Court must take. At page 209 it said the following:- "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' and 'proper' and the interrelationship which exists 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."