Sayer v The Public Trustee [2009] NSWSC 89

New South Wales Supreme Court

CITATION : Sayer v The Public Trustee [2009] NSWSC 89

HEARING DATE(S) : 25/02/09, 26/02/09

JUDGMENT DATE : 31 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 74

CATCHWORDS : Family Provision. Application by widow from second marriage. Option to purchase deceased's share in family home given to widow. Held appropriate provision requires that she receive the deceased's half share of the family home.

PARTIES : Jennifer Christine Sayer v The Public Trustee of New South Wales (Estate of

FILE NUMBER(S) : SC 6105/07

COUNSEL : Mr DK Jordan for plaintiff Mr Mr Meek for defendant

SOLICITORS : L. Rundle & Co for plaintiff Anthony Lentini for defendant

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

Associate Justice Macready

Tuesday 31 March 2009

6105/2007 Jennifer Christine Sayer v Public Trustee of New South Wales (Estate of William Robert Sayer) JUDGMENT 1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late William Robert Sayer who died on 22 July 2007. He was survived by the plaintiff, his second wife, and his three children by his first marriage. The deceased and the plaintiff had no children together but the plaintiff also had children from a previous marriage. The last will of the deceased 2 The deceased made his last will on 3 December 1987. Under that will he appointed the defendant as executor and he left his half share of the matrimonial home situated in the countryside outside Armidale in northern New South Wales to his three children and gave them the money in his bank accounts. 3 He left the residue of his estate to the plaintiff's two daughters and gave the plaintiff and her two daughters the option to purchase his share of the house at a market value. The option was not exercised within the time limited by the option in the will. Assets in the estate 4 The deceased had at the date of his death his share of the home and funds in bank accounts of $32,214.30. The present value of the deceased's share of the property is valued at $550,000 and there are monies held by the Public Trustee of $21,520.60. The defendant's legal costs are estimated at $51,806.64 and those of the plaintiff estimated at $40,000. If the property were the sold the commission would be $12,500. 5 The deceased also had a superannuation pension. On his death the plaintiff became entitled to 5/8ths of his pension. The plaintiff elected to convert that pension to a lump sum and on 7 March 2007 she received $183,883.58. Family history 6 The deceased was born in November 1928 and the plaintiff was born in March 1936. The deceased married his first wife in 1954 which was the year that the deceased and plaintiff met while studying to be teachers. In 1959 the plaintiff moved to Armidale and lost contact with the deceased. 7 The deceased had three children by his first marriage. They were Jacqueline Sayer (Colless) born in December 1956, William Robert Sayer born in March 1960 and Lyndal Sayer born in March 1970. In 1965 the deceased and his first wife moved to Sydney. 8 The plaintiff married and in 1978 the Gostwyck Heights property was bought by the plaintiff and her first husband. The property had no home on it but the plaintiff and her first husband fenced the property, put in dams and roads, built a horse shed and corral and planted trees.