Lorking v Lorking [2009] NSWSC 316

New South Wales Supreme Court

CITATION : Lorking v Lorking [2009] NSWSC 316

HEARING DATE(S) : 22/04/09 and 23/04/09

JUDGMENT DATE : 28 April 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ

CATCHWORDS : Family Provision. Claim by second wife of a 49 years marriage. Deceased provided right to occupy matrimonial home and for her to receive half proceeds when sold. Claim by widow for fee simple of home. Order only increasing percentage to be received on sale of home from 50% to 65%.

PARTIES : June Vera Lorking v Phillip William Lorking & 2 Ors

FILE NUMBER(S) : SC 2835/08

COUNSEL : Mr M Vincent for plaintiff Mr AJ Grant for defendants

SOLICITORS : Dibbs Barker for plaintiff Snelgroves Lawyers for defendants

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

ASSOCIATE JUSTICE MACREADY

Tuesday 28 April 2009

2835/ 2008 June Vera Lorking v Philip William Lorking and 3 Ors (Estate of Sidney William Lorking) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the will of the late Sidney William Lorking who died on 10 February 2007 aged 96 years. He was survived by his second wife, the plaintiff, three children from his first marriage and two children from his second marriage. Will of the deceased 2 In 1978 the deceased made a will leaving the whole of his estate to the plaintiff. In 2003 he made a will in which he left his wife the matrimonial home. In his last will made on 23 October 2003 he appointed his three sons from his first marriage as executors and trustees. Under the will he gave his widow a right of residence in the matrimonial home in these terms: "3. I GIVE the following directions to my executors concerning the property that constitutes the matrimonial home of my wife and myself at my death which I refer to as "the house": (a) my wife may live in the house as long as she wishes and I DIRECT my Trustees to pay all premiums on any insurance polices and rates and taxes levied on the property and keep the property in good repair; (b) until my wife has, in the opinion of my executors, ceased to live in the house permanently or to comply with the condition of her right of occupation, it shall not be sold without her consent. 4. At the written request of my wife or in the event that my wife shall cease to live permanently in the house, my executors shall sell the house. " 3 In clause 6 the deceased provided that, upon the sale, the cash was to be divided with 50% given to his wife, the plaintiff, and the remaining 50% to be given to his five children (they being the three children from his first marriage and the two children from his second marriage). In clause 7 the deceased directed his trustees to hold the sum of $100,000 in trust towards the expenses, maintenance, rates or levies on the house and any premiums on insurance policies. The deceaed gave his wife all his furniture and personal effects and he gave the residue of his estate to be divided amongst his five children. Assets in the estate 4 The matrimonial home at Nelson Road, Lindfield has been valued in a range of between $1.8 million and $1.5 million. For the purpose of this application I will adopt a figure of $1,666,666. There is cash and shares in the estate of $241,265.97 making a total of $1,907,932. 5 So far as costs are concerned the defendants' costs are $55,999.98 which have already been paid. This figure included costs to act in another Family Provision Act claim brought by one of the deceased's sons, Richard Lorking, which was settled. The remaining costs which have been incurred by the defendant in respect of the estate are $17,780. 6 The plaintiff's costs have been estimated at $108,078. This is a surprising amount for a two day hearing of a very simple widow's claim. Why it was necessary to have two solicitors working on the matter is not readily apparent given the evidence which was ultimately admitted. However, I will leave the assessment to the costs' assessor if an order is made. Family history 7 The deceased, Sidney William Lorking, was born in May 1911 and the plaintiff, June Lorking, in July 1921. The deceased married his first wife, Elsie May Jenner, in January 1935. They had four sons, Graeme Robert Lorking born December 1940, Philip William Lorking born in April 1945, Ross Howard Lorking in May 1948 and Bruce Craig Lorking born in January 1950.