Howe v Lowry [2009] NSWSC 451

New South Wales Supreme Court

CITATION : Howe v Lowry [2009] NSWSC 451

HEARING DATE(S) : 25/05/09

JUDGMENT DATE : 25 May 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 25 May 2009

DECISION : Paragraph 49

CATCHWORDS : Family Provision. Application by a daughter left out of the deceased's will. Provision made for plaintiff substantially out of a share passing to a charity.

PARTIES : Elin Howe v Vance Stanton Lowry and Mark Hennessy (Estate of the late Kenelm Gustav Lowry)

FILE NUMBER(S) : SC 3720/2008

COUNSEL : Mr M Willmott SC for plaintiff Mr R Wilson for defendants

SOLICITORS : Mr RJ Foster for plaintiff Mr Mark Hennessy for defendants

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

ASSOCIATE JUSTICE MACREADY

MONDAY 25 MAY 2009

3720/08 - ELIN HOWE v VANCE STANTON LOWRY & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Kenelm Gustav Lowry, who died on 7 June 2007. He was survived by his two children, one of whom is the plaintiff and one of whom is the first defendant. The last will of the deceased 2 The deceased made his last will on 9 November 2004. Under that will he appointed his son, Vance, and his solicitor, Mr Hennessy, as executors. He provided in cl 3 that his son should have his property, being his principal place of residence, and he provided in cl 4 that the contents should also go to his son. In cl 5 of his estate he left his residue as to one half for a number of his grandchildren. They were Bartholomew.Howe, Phoebe Justic, Sarah Jameson, Caroline Lowry and Louise Lowry. The other half share of his residue was left to the Royal Society for the Prevention of Cruelty to Animals. The estate of the deceased 3 The estate of the deceased has a value approximately of $2,411,264 and that includes the deceased's principal residence, which is a unit at Rose Bay, having a value of approximately $1 million. A number of deductions have to be made for tax for various years of $61,175, capital gains tax $113,555, commission $54,238.78 and the defendants' costs of $43,458.64. If one takes those costs out the residuary estate it comes down to $1,131,838. There are also plaintiff's costs, if an order is made in favour of the plaintiff, which would reduce that, of $39,884. Family history 4 The deceased and his wife, Roma, were married in 1943. They had two children, as I have mentioned, the plaintiff, born in December 1944 and the first defendant, Vance, born in September 1947. The plaintiff left school in 1963 and started to study art at the National Art School, probably a life choice that started to put her in conflict with the deceased, who wished her to be a nurse because he thought that was a proper profession for a lady. In 1964 she worked at David Jones and then also in that year she was married. She and her husband had four children, Bartholomew, born December 1964, Damien born May 1966, Phoebe born November 1971 and Millicent born January 1974. Unfortunately Damien died in 1970. 5 The plaintiff's husband was qualified as an accountant and they initially purchased a property in Elswick Street, Leichhardt. Things were travelling all right for a while but then unfortunately the plaintiff's husband was retrenched in 1974. He had a number of different jobs. She and her husband were in the situation where they had to sell up their home in Leichhardt and live in rented accommodation. 6 The first defendant had been married and he had a number of children, including Sarah, who was born in February 1977, Caroline, born in January 1980 and Louise born in December 1981. 7 After the accounting and a number of failures at jobs the plaintiff and her husband purchased a sandwich shop and business at Waitara. The deceased contributed $1000 to help his daughter at that time. 8 The plaintiff in the 1980s commenced some further studies to equip her to ultimately become a teacher. Unfortunately in 1987 she and her husband separated and the plaintiff moved to rented accommodation. She obtained a BA that year and obtained casual teaching positions. She and her husband were divorced in June 1990. 9 In December 1994 the deceased once again provided for the plaintiff, giving her $5,000. She graduated with Honours in Art History from Sydney University in 1999. In April 2004 the plaintiff's mother died and I will come back to the events surrounding that death. 10 The deceased made his will on 9 November 2004, as I have recounted. By 2007 the plaintiff started full-time teaching Art History and Theory at the Sydney Gallery School, Meadowbank. 11 The deceased died, as I have mentioned, on 7 June 2007 and probate was granted in October of that year to the defendant. The summons was filed in this matter on 11 July 2008 within the time limited by the Act. Eligible persons 12 The plaintiff is an eligible person. In applications under the Family Provision Act (supra) the High Court in Singer v Berghouse (1984) 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.