Davis v Davis (The Estate of the Late Nancy Patricia Davis) [2010] NSWSC 1148

New South Wales Supreme Court

CITATION : Davis v Davis (The Estate of the Late Nancy Patricia Davis) [2010] NSWSC 1148

HEARING DATE(S) : 30/09/ 2010

JUDGMENT DATE : 12 October 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

1. The summons filed 21/12/2009 and the proceedings thereupon be transferred to the Equity Division. DECISION : 2. In lieu of the provisions of the will of the deceased in favour of Albert John Davis that instead the estate of the deceased be held as to 60% for the plaintiff and 40% for Albert John Davis. 3. I order the plaintiff's costs on the ordinary basis and the defendant's on the indemnity basis are to be paid or retained out of the estate of the deceased.

CATCHWORDS : Application by son left out of will. Whole estate left to a younger son. Order for provision. No matter of principle.

LEGISLATION CITED : Family Provision Act 1982 (NSW)

CATEGORY : Principal judgment

Bosch v Perpetual Trustee Co Ltd [1938] AC 463 CASES CITED : Ellis v Leeder (1951) 82 CLR 645 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

PARTIES : Steven John Davis v Sharron Michelle Davis

FILE NUMBER(S) : SC 2009/311793

COUNSEL : Mr RE Quickenden for plaintiff Mr P Cook for defendant

SOLICITORS : John Ryan Solicitor, Toukley for plaintiff Proctor & Associates, Parramatta for defendant

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

MACREADY AsJ

TUESDAY 12 OCTOBER 2010

2009/311793 STEVEN JOHN DAVIS V SHARRON MICHELLE DAVIS (THE ESTATE OF THE LATE NANCY PATRICIA DAVIS) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Nancy Patricia Davis who died on 25 December 2008 aged 76 years. The deceased was survived by her three children, two of whom are parties in the action. Her third and youngest child was Albert Joseph Davis who has sworn an affidavit in the proceedings. Her former husband does not want to make a claim on the Estate. The Plaintiff's Last Will 2 The deceased made her Will on 16 August 1995 and appointed the defendant, her daughter Sharron Michelle Davis, as executor. In the event which has happened she gave the whole of her estate to her son, Albert Joseph Davis. The Estate of the Deceased 3 The estate of the deceased presently consists of her residence at Luxford Road, Whalan valued at $210,000 and a Commonwealth Bank Account of $13,000. There are liabilities for administration expenses and funeral expenses of $12,000 leaving a net estate of $211,000. The plaintiff's costs are estimated at $53,220 and those of the defendant at $25,575. This is a total of $78,795. This means that the net distributable estate before selling costs is in the order of $132,205. The Family History 4 The deceased was born in 1932 and her first child, Sharron, the defendant, was born in July 1962. The plaintiff was born in November 1963 and Albert was born in June 1969. 5 The deceased and her husband separated in 1975 and in 1977 he transferred his interest in a property which they jointly owned at Wyong to the deceased. Between 1980 and 1983 the deceased and her husband recommenced cohabitation, however, they then separated. Later in life in the beginning of 1990 the deceased and her husband became good friends and he would assist her from time to time. 6 In 1982 the defendant left home and made her way in life while the defendant remained at home. In 1984 the plaintiff arranged for an extension to be built on the home of the deceased to provide him with a room. This extension was funded by a loan taken out by the deceased from the State Bank in the sum of $10,000. 7 In 1990 the plaintiff was made redundant in his employment and received some $73,000 as a redundancy payout. Although he had been living away from home for a few years, he then moved back to live with his mother. 8 The deceased, between 1988 and 1995 had returned to her occupation as a nurse on a part time basis. She received a small superannuation payment when she retired in 1995. 9 After being unemployed for some three years the plaintiff started work with BHP at Rooty Hill. In that year he started a defacto relationship with Natalie Bradford and they had a child, Paige. They also purchased a property at Mt Druitt. However, unfortunately the plaintiff and his partner separated and the Mt Druitt property was sold in 1995. The plaintiff then moved back to live with his mother. His partner looked after the child, Paige. 10 The deceased made her will on 16 August 1995. 11 In 1996 the son, Andrew, took over the mortgage which had been obtained to build the extension which was occupied by the plaintiff. At that stage there was $8,500 owing and Albert continued to pay that out, which he did in due course. He arranged to do this in conjunction with raising some funds in order to pay out a partner with whom he had had a relationship. 12 In 1997 the deceased was diagnosed with Endometrial Cancer and she also had surgery, including a hysterectomy. Both the defendant, Sharron, and the deceased's sister in law cared for her at this time. 13 In 1998 the plaintiff married his wife, Annette, and they purchased a property in Blacktown. He then moved out of the deceased's home. Unfortunately for the plaintiff in 1999 he became redundant at BHP and received redundancy payment of $11,000. Some months later he obtained work with the State Rail Authority as a station assistant. 14 The deceased had a number of further medical problems. In 2002 she was treated for depression and in 2004 she had a fall which led to a fracture and complications which required hospitalisation. After her return from hospital the defendant, Sharron, moved in with the deceased and looked after the deceased. 15 In 2004 the plaintiff moved to Noraville and as a result his visits to the deceased were less frequent. Over the years, between 2004 and the deceased's death in 2008, the defendant made a number of improvements to the deceased's home. 16 In August 2005 the deceased received an inheritance from her father's estate. From the documents before me it was in the sum of $18,312.12. 17 In January 2006 the defendant, Sharron, purchased a property at Noraville and she and the deceased used that property as a holiday home. 18 The deceased's health commenced to deteriorate further and in 2008 she was hospitalised in September of that year. As I have mentioned she died on 25 December 2008. Probate was granted on 15 September 2009 to the defendant and the plaintiff filed this summons within time on 18 December 2009. Eligibility 19 The plaintiff is an eligible person. 20 The High Court has, in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210, set out the two stage approach: