Robertson v Pearce [2010] NSWSC 124

New South Wales Supreme Court

CITATION : Robertson v Pearce [2010] NSWSC 124

HEARING DATE(S) : 25/02/2010

JUDGMENT DATE : 25 February 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 25 February 2010

1. In lieu of the dispositions provided in the will of the deceased in favour of the plaintiff, that he receive a bequest of the whole of the estate of the deceased. DECISION : 2. I order the plaintiff to pay the defendant's costs on an indemnity basis. 3. I order the exhibits to be returned.

CATCHWORDS : Family provision. Application by widower left a right of residence. Long second marriage with widower contributing to the house. Widower given the fee simple in the house.

PARTIES : Dale Forsyth Robertson v Janette Marie Pearce

FILE NUMBER(S) : SC 2009/00287855

COUNSEL : Mr R Wilson for plaintiff Mr V Ruta for defendant

SOLICITORS : L Rundle & Co for plaintiff Marsden Law Group for defendant

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

ASSOCIATE JUSTICE MACREADY

THURSDAY 25 FEBRUARY 2010

287855/09 DALE FORSYTH ROBERTSON v JANETTE MARIE PEARCE - ESTATE OF THE LATE MAVIS MABEL ROBERTSON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Mavis Mabel Roberts who died on 22 October 2008 aged 87 years. She was survived by her second husband, the plaintiff, and her daughter from her first marriage, the defendant. Last Will of the deceased 2 The deceased made her last will on 31 May 1988. In the events that have happened, the plaintiff received a right of residence in the matrimonial home to either his death, remarriage, or entry into a de facto relationship. On any one of these events the house was to be sold and it was to be left as to one half to the defendant, the deceased's daughter, or in default to the Sydney Eye Hospital; and one-half to her grandchildren. There are two grandchildren, both children of the defendant. Assets in the estate 3 The only asset in the state is the matrimonial home, which was in the name of the deceased. Costs 4 Costs have been incurred. The plaintiff's costs are estimated at $36,798 and the defendant's costs estimated in the sum of $30,000. Family History 5 The plaintiff was born in 1922. The deceased was born a year earlier in 1921 and in due course the deceased married. She had only one child, the defendant Janette, who was born in 1950. Her husband died in 1953. 6 In 1958 the deceased and the plaintiff married. They moved into a property at Peakhurst, which was purchased in the name of the defendant with the plaintiff contributing £1,000 and the deceased the balance.. The purchase price of the house was £8,650 and the actual purchase occurred in 1962. 7 In 1970 the defendant married and her son Robert was born in August 1971. Her daughter Joanna was born in July 1974. 8 In 1973 the plaintiff suffered a number of injuries in a motor vehicle accident and was off work for some seven months. Apart from this he worked full time and he retired in 1987 when he reached the age of 65 years. 9 As I have mentioned, the deceased made her last will in May 1988 shortly after her husband retired. 10 In October 1986 the plaintiff paid a cheque for $107,000 to the deceased's son, Robert. This was a loan apparently carrying interest of 8% per annum. 11 In 1997 the deceased was very sick. Her dementia advanced so much that by 2000 the plaintiff had to take over all housekeeping, cooking and looking after her. In 1999 the plaintiff suffered a heart attack and as a result for a month, when he was being treated, the defendant looked after the deceased and found it quite difficult. Eventually in December 2001 the deceased was admitted as an inpatient at the Leisure World Nursing Home at Peakhurst. 12 In 2002 the plaintiff gave the defendant three lots of $9,000, apparently for the purpose of paying for both his and the deceased's funerals. 13 On 22 October 2008 the deceased died. The summons was filed within time in May 2009 and Letters of Administration with the will annexed were granted to the defendant. The executor named in the will pre-deceased testator. 14 The plaintiff is an eligible person being a widow of the deceased. 15 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."