New South Wales Supreme Court CITATION : Foley v Foley [2008] NSWSC 662 HEARING DATE(S) : 27 June 2008 JUDGMENT DATE : 27 June 2008 JURISDICTION : Equity Division JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 27 June 2008 DECISION : Summons dismissed. CATCHWORDS : EXECUTORS & TRUSTEES – Legatee under will seeks order that executors permit her to reside in house of deceased until sale – no claim of right to such order – no basis to direct executor as trustee to exercise discretion to permit residence. CATEGORY : Principal judgment PARTIES : Carmen Esperenza Foley (Plaintiff) Lyndon Stuart Foley (Defendant) FILE NUMBER(S) : SC 3471/08 COUNSEL : D.J. Brezniak (Plaintiff) J.J. Yuill (Sol) (Defendant) SOLICITORS : P.J. Donnellan & Co (Plaintiff) Yuill Lawyers (Defendant) 3471/08 Foley v Foley JUDGMENT – Ex tempore 27 June, 2008 1 The Plaintiff seeks an order that she be restored to the possession of a house at Warriewood until it is sold and she is paid a share in the proceeds of sale pursuant to a legacy. 2 The Plaintiff is the widow of Maurice Lindsay Foley, who died in September 2004. The deceased left a will, of which probate has been granted to the Defendant. That will provided that the Plaintiff would receive a legacy of $600,000. The residue of the estate was left to the Defendant. 3 The Plaintiff made an application pursuant to the Family Provision Act 1982 (NSW) for increased provision from the deceased's estate. From the judgment which was delivered by Macready AsJ on 13 March 2008 it is apparent that the Plaintiff was seeking that the house at Warriewood, in effect, be given to her to reside in. His Honour refused to grant any relief to the Plaintiff on two bases. 4 First, he held that her application to extend time for the filing of the Summons should not be granted and, second, he concluded that even if an extension of time were granted there was no basis for a claim that inadequate provision had been left to her from the deceased's estate. His Honour made particular reference to the occupation needs of the Plaintiff and found that there was no need for the Plaintiff to have the house at Warriewood. 5 The Defendant has now set about selling the house, which is the major asset of the estate. He has required vacant possession to be given by the Plaintiff. The Plaintiff has not agreed to give vacant possession. Matters came to the point where the Defendant, while the Plaintiff was absent, changed the locks on the premises and denied her access. 6 The Plaintiff now seeks to be restored to occupation of the house until it is sold. She says that she is willing to cooperate with the sale process by giving access to prospective purchasers when required. 7 The Plaintiff must demonstrate some claim of right, whether in law or in equity, to be restored to possession or occupation of the house, even for a short time. Mr Brezniak of Counsel, who appears for the Plaintiff, has said everything in her behalf that can be said, but he concedes that the Plaintiff has no claim of right, either in law or equity, to occupation of the house. He says that, however, the Court has discretion to direct the executor, as a trustee, to give possession on the terms sought by the Plaintiff. 8 This is not an application for judicial advice by a trustee. The executor certainly does not seek such advice. The Court would not, in these circumstances, interfere with the executor's discretion as to the administration of the estate, particularly as to how and when assets will be realise. There is no basis upon which the Court can simply direct an executor, against his or her will, to provide accommodation to a beneficiary of the estate who has no claim to such right of occupation, either under the will or outside the will. 9 The Plaintiff's Summons is dismissed. 10 The Plaintiff will pay the Defendant's costs of the Summons. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.