Hanlon v Evans English v Evans [2009] NSWSC 137

New South Wales Supreme Court

CITATION : Hanlon v Evans English v Evans [2009] NSWSC 137

HEARING DATE(S) : 08/12/08, 09/12/08, 05/03/09, 10/03/09

JUDGMENT DATE : 3 June 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Family Provision. Application for provision by two daughters of deceased. Deceased owned part of country property which was left mainly to a son. Orders for further provision in favour of plaintiffs.

PARTIES : Elizabeth Ellen Hanlon v David Lewis Evans & Anor Robyn Anne English v David Lewis Evans & Anor

FILE NUMBER(S) : SC 4360/2006; 5745/2007

COUNSEL : Mr JS Drummond for plaintiffs Mr CF Hodgson for defendants

SOLICITORS : Friedlieb Byrne for plaintiffs Tress Cox for defendants

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

Associate Justice Macready

Wednesday 3 June 2009

4360/06 Elizabeth Ellen Hanlon v David Lewis Evans & David John Evans 5745/07 Robwyn Anne English v David Lewis Evans & David John Evans JUDGMENT 1 His Honour: This is the hearing of two applications under the Family Provision Act 1982 in respect of the estate of the late Mavis Evans who died on 18 June 2005. Her two daughters, Elizabeth Hanlon ("Elizabeth") and Robwyn English ("Robwyn"), are the plaintiffs in the proceedings. The deceased was also survived by her son, David Evans ("David"), the second defendant, in the proceedings and her husband, Mr David Lewis Evans (" Mr Lew Evans"), the first defendant. The last will of the deceased 2 By her last will and testament dated 14 July 1992 the deceased appointed Lew Evans and her son David as her executors and trustees. Clause 3 of the will provided for the whole of her property "both real and personal" to be held upon trust: "(a) to pay the income to my husband David Lewis Evans during his lifetime. (b) on the death of my husband to hold the capital as well as the income upon trust: (i) as to all family lands owned by me at the date of my death UPON TRUST for my son the said DAVID JOHN EVANS SUBJECT TO the payment by my said son to each of my daughters ELIZABETH ELLEN HANLON and ROBWYN ANNE ROBINSON of the sum of thirty thousand dollars ($30,000). The said amount of thirty thousand dollars ($30,000) payable to each of my said daughters shall be paid by my said son within a period of twelve (12) months from the date of death of the survivor of myself and my husband and further subject to the payment by my said son of my just debts and general testamentary expenses. (ii) as to the residue of my estate UPON TRUST for my daughters the said ELIZABETH ELLEN HANLON and ROBWYN ANNE ROBINSON who survive me and if both survive as tenants in common in equal shares." 3 Mr Lew Evans, the deceased's husband, is still alive and he is entitled to his life interest. The estate of the deceased 4 The net distributable value of the estate before deduction of any legal costs in relation to the proceedings, is as follows: Lot 9 "Fishers" $620,000.00 Less selling expenses (excluding capital gains tax) $25,160.00 $594,840.00 Less Probate costs $4,379.05 $590,460.95 Less funeral expenses $7,000.00 $583,460.95