Perry v Perry [2009] NSWSC 212

New South Wales Supreme Court

CITATION : Perry v Perry [2009] NSWSC 212

HEARING DATE(S) : 26/03/2009

JUDGMENT DATE : 31 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 31 March 2009

DECISION : Paragraph 38

CATCHWORDS : Family Provision. Claim by adult son whose benefit under the will was postponed. Order for acceleration of benefit.

PARTIES : Brian Leslie Perry v Brenda Joyce Perry (Estate of the late Elsie Florence Perry)

FILE NUMBER(S) : SC 2085/2008

COUNSEL : Mr ER Graham for plaintiff Mr RN O'Neill for defendant

SOLICITORS : Young & Muggleton for plaintiff Coleman & Greig for defendant

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 MARCH 2009

2085/08 BRIAN LESLIE PERRY v BRENDA JOYCE PERRY - RE THE ESTATE OF THE LATE ELSIE FLORENCE PERRY and ORS

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Elsie Florence Perry who died on 4 March 2007. The deceased was survived by her daughter, the defendant, and her three sons, one of whom is the plaintiff. The will of the deceased 2 The deceased's last will was made on 15 November 2006 under which she appointed the defendant as executrix and trustee. She gave a bequest to her granddaughter, Sara Leanne Perry, of a fixed deposit of $8,900 upon her attaining the age of 25 years. The plaintiff does not seek to disturb that bequest. 3 Under the terms of the will, the real estate, being her house at Manson Street, Wentworthville was to be valued at her death and this is agreed and the parties have indicated that the property had a value at the date of death of $435,000. It was then given to the defendant, Brenda Joyce Perry, on the condition that she pay to the estate within five years of the death of the testatrix an amount equal to one third of the value of the property and as determined by that valuation. There were provisions in the will as to what was to happen in the event that the defendant either did not pay the amount, or died within five years of the death of the deceased, in which event the real estate and household contents were to form part of the residue of the estate. 4 If the defendant paid the said sum of one-third of the value of the property, then that sum was to be paid to the deceased's three sons, Anthony Robert Perry, Malcolm Ian George Perry, and the plaintiff, Brian Leslie Perry in equal shares as tenants in common. In the event that the defendant did not fulfil the conditions the property then formed part of the residue of the estate and the well directed that two-thirds of the residue would go to Brenda Joyce Perry, the defendant, and one third in equal shares as tenants in common to the three sons. Assets of the Estate 5 The present assets of the estate include: (1) the real estate at Wentworthville valued at the date of death at $435,000. (2) a deposit with Australian Capital Reserve with a current value of about $8,900. (3) Jewellery and personal effects. These have been distributed to Brenda Joyce Perry. (4) St George bank account. After payment of the funeral expenses and the real estate valuation for the purposes of probate, the balance in this account was distributed as to $1,212.62 as to Anthony Robert Perry and Malcolm Ian Perry, and $1,212.59 to the plaintiff Brian Leslie Perry. 6 There are debts due to the defendant in the sum of $5717 53 and the costs to date total, for the defendant $50,000, and for the plaintiff $35,000. Family History 7 The deceased and her husband had four children, Brenda who was born in September 1947, Anthony born in February 1952, Malcolm born in September 1956 and the plaintiff, Brian, born in September 1957. Malcolm left home at about 18 years of age in about 1964 and on 22 December 1967 the deceased's husband died. In 1971 Anthony left home when he was 18 years of age; then he remained away until 1981, and came home for a while. He then left when he married in 1985. 8 In 1972 the plaintiff left Greystanes High School at the age of 15 years. In 1978 he was involved in a significant motor vehicle accident and he was in hospital for sometime thereafter. He eventually got back to work and worked for some 15 years with the Parramatta City Council. In the early 1990s he took voluntary redundancy from that organisation. 9 In 1997 he settled a Workers Compensation action against the Council and others for injuries sustained during his period of employment. He married in March of 1999 but that was a short marriage of some six months duration. In 2001 he suffered an injury to his right wrist while working at a nursing home in Queensland. He then recovered some damages against his employer and he has not worked since that time. 10 On 15 November 2006 the deceased made her last will and she died on 4 March 2007. The summons was filed within time. Eligibility 11 The plaintiff being a son of the deceased is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."