Peter John Sangster v Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster [2009] NSWSC 695

New South Wales Supreme Court

CITATION : Peter John Sangster v Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster [2009] NSWSC 695

HEARING DATE(S) : 23 and 24 February and 26 June 2009

JUDGMENT DATE : 27 July 2009

JURISDICTION : Equity Division

JUDGMENT OF : Bergin CJ in Eq

DECISION : Provision ordered

CATCHWORDS : FAMILY PROVISION - Whether unemployed adult son with some health problems left without adequate provision for proper maintenance, education and advancement in life - Testator's wishes to ensure secure accommodation for plaintiff - Structure of provision in light of evidence

LEGISLATION CITED : Family Provision Act 1982 (NSW)

CATEGORY : Principal judgment

Blore v Lang (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Fung v Ye [2007] NSWCA 115 CASES CITED : Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Shearer v The Public Trustee; Hawke v The Public Trustee (unreported, Young J, NSWSC, 29 March 1998) Singer v Berghouse (1994) 181 CLR 201

PARTIES : Peter John Sangster (Plaintiff) Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster (Defendant)

FILE NUMBER(S) : SC 5683 of 2007

COUNSEL : SF Hughes (Plaintiff) B Skinner (Defendant)

SOLICITORS : Jackson Smith Lawyers (Plaintiff) Benjamin & Robinson (Defendant)

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

BERGIN CJ IN EQ

27 JULY 2009

5683 of 2007 PETER JOHN SANGSTER v NICHOLAS CHARLES SANGSTER AS EXECUTOR OF THE ESTATE OF THE LATE CHRISTOBEL MARY SANGSTER JUDGMENT 1 The plaintiff, Peter John Sangster, by Summons filed on 23 November 2007 makes application for further provision out of the estate of his late mother, Christobel Mary Sangster (the deceased), pursuant to s 7 of the Family Provision Act 1982 (the Act). 2 The application was heard on 23 and 24 February 2009 when Mr SF Hughes, of counsel, appeared for the plaintiff and Mr B Skinner, of counsel, appeared for the defendant, Nicholas Charles Sangster as executor of the estate of the deceased. At the conclusion of the hearing on 24 February 2009 the matter was adjourned to 26 June 2009 to accommodate the possible settlement of the proceedings. On 26 June 2009 the parties reported that negotiations had broken down and after further short submissions judgment was reserved. 3 The plaintiff, the youngest of the deceased's and David Flower Sangster's (Mr Sangster) three sons, is 48 years of age. The plaintiff's elder brothers, Antony and Nicholas are aged 55 years and 53 years respectively. Antony has been married twice and has three children from his first marriage and twin step daughters (the twins) from his second marriage. Both the plaintiff's brothers are successful professionals and it appears that there is no need in any other person with a legitimate claim on the estate.