Seward v Public Trustee & Anor [2010] NSWSC 396

New South Wales Supreme Court

CITATION : Seward v Public Trustee & Anor [2010] NSWSC 396

HEARING DATE(S) : 29/04/2010

JUDGMENT DATE : 26 May 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I dismiss the claim with costs

CATCHWORDS : Family Provision. Application by daughter of first marriage. Small estate passes by survivorship to second husband who was with deceased for 37 years. Application dismissed. Consideration of husband's conduct in contrast to a long marriage.

PARTIES : Kerrie Lorraine Seward v The Public Trustee and Eric Gordon Chapman

FILE NUMBER(S) : SC 2009/289506

COUNSEL : Mr P Barham for plaintiff Mr L Ellison SC for defendant

SOLICITORS : G & D Lawyers for plaintiff Hilton King Lawyers for defendant

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

Associate Justice Macready

Wednesday 26 May 2010

2009/289506 Kerrie Seward v Public Trustee and Eric Gordon Chapman (Estate of Peggy May Seward)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 ('the Act') in respect of the estate of the late Peggy May Chapman (nee Seward) who died on 26 June 2008 aged in her mid eighties. There is some doubt as to whether she was 83 or 87 years old at the date of her death. She was survived by her husband, Eric Gordon Chapman, the second defendant and her daughter, Kerrie Lorraine Seward, the plaintiff. Her first husband, Albert Wallace Seward, from whom she was divorced in about 1975, died in January 2003. 2 By her Will made with the Public Trustee on 14 August 1978, the deceased left the whole of her estate to the second defendant with a substantial provision in favour of her daughter, Kerrie. Although the deceased and the second defendant had cohabited since about 1975 they married on 18 August 1990 and her Will which was not made in contemplation of marriage was revoked. Consequently, the deceased died intestate. A grant of Letters of Administration for the purpose of the present application has been made. Estate of the deceased 3 At her death the deceased's estate was $15,091.43. This was mainly cash, some shares and an interest in an estate. The deceased had liabilities totalling $4,546.01. 4 The estate has been collected and the IAG shares have been transferred to the second defendant. The debts in the estate have been paid as well as the funeral expenses and the solicitors currently hold $3,106.07 after payment of some of their costs of these proceedings. 5 The plaintiff's costs up to and including the hearing total $31,404.16. These costs are incurred on a contingency basis and accordingly if the plaintiff's application fails she will only have to pay the solicitor's disbursements of $4,150.41. 6 The second defendant's legal fees up to 9 November 2009 in total was $10,132 and they have been paid out of the estate. The second defendant has incurred further legal fees amounting to $16,000 in the proceedings which have not been paid. 7 The deceased, at her death, was joint tenant with the second defendant of a property at Heaslip Street, Coniston. After the date of death the property was transferred into the name of the second defendant and has been sold for $350,000. The second defendant has purchased residential premises at Caldwell Street, Balgownie using the proceeds of sale for $288,000. History 8 The deceased was born in June 1921 or 1925 depending on which document one accepts. In the context of this case it makes no difference. Her second husband, the second defendant, was born in May 1935 and he was 10 or 14 years younger than the deceased. 9 The deceased married Albert Seward in 1944 and in April 1949 a daughter, Kerrie Seward, was born.