Ivy Agnes Maud Twomey v Neridah McDonald [2012] NSWSC 22

Supreme Court New South Wales

Medium Neutral Citation: Ivy Agnes Maud Twomey v Neridah McDonald [2012] NSWSC 22 Hearing dates: 22.11.11, 23.11.11 Decision date: 02 February 2012 Before: Nicholas J Decision: Par 59 Catchwords: SUCCESSION - adult daughter's application for order for provision out of time - extension of time - factors relevant to exercise of discretion to grant extension of time - plaintiff's need significant - modest estate - whether order for provision should be made - turns on facts - no question of principle Legislation Cited: Succession Act 2006 Cases Cited: Alexander v Jansson [2010] NSWSCA 176 Cetojevic v Cetojevic [2006] NSWSC 431 Charles v Charles [25 March 1988, NSWSC, Unreported] Graham v Graham [2011] NSWSC 504 Kalmar v Kalmar [2006] NSWSC 437 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 Walker v Walker [NSWSC 17 May 1996, Unreported] Category: Principal judgment Parties: Ivy Agnes Maud Twomey - plaintiff Neridah McDonald - defendant Representation: Counsel: J E Armfield - plaintiff M A Bradford - defendant Solicitors: Butlers Will Dispute Lawyers - plaintiff Thurlow Fisher Lawyers - defendant File Number(s): 10/377683

Judgment 1This is an application under s 59 Succession Act 2006 (the Act) for an order that provision be made for the plaintiff's maintenance, education and advancement in life out of the estate of the late Ivy May Twomey (the deceased). 2The deceased died on 6 November 2009 aged 91 years. Her husband died in 1974. She was survived by three of her five children namely Carolyn May Hickel (born 29 August 1949), Ronald James Twomey (born 12 January 1953), and the plaintiff (born 1 July 1956). Her two other children predeceased her: Robert Edward Twomey on 6 November 1999 aged 54 years, and Arthur Roy Twomey (Arthur) on 27 May 2009 aged 68 years. 3Arthur was survived by his widow, Helen Margaret Twomey (Helen), and their children Neridah McDonald (the defendant), Arthur Craig Twomey (Craig), and Brinawa Twomey (Brinawa). 4The deceased left a will made on 12 July 1990. A grant of administration with will annexed was made to the plaintiff on 2 August 2010. Relevantly, the will provided: "I GIVE to my son ARTHUR ROY TWOMEY the property known as # ### Street, North Parramatta or any interest I may have therein at my death, such devise being subject to the said ARTHUR ROY TWOMEY being wholly responsible for payment of all sums secured thereon, but if the said ARTHUR ROY TWOMEY dies before me or before attaining a vested interest leaving children those children shall on attaining their majority take equally the share which their parent would otherwise have taken." Accordingly, the property passes to Arthur's children, the defendant, Craig, and Brinawa (the beneficiaries). 5Clauses 4 and 5 of the will disposed of items of jewellery and other personalty. By cl 6, the residue of the estate was left equally to the surviving children Carloyn Hickel, Ronald Twomey, and the plaintiff. 6The estate has a net value of $627,507.62, allowing for costs of administration of about $10,500. The assets include the deceased's property at North Parramatta (the property) of which the agreed value is $610,000, and funds in bank accounts in the total amount of $28,007.62.