Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748

Supreme Court New South Wales

Medium Neutral Citation: Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Hearing dates: 13, 14 June 2012 Decision date: 05 July 2012 Before: Hallen AsJ Decision: (i) Having found that the Plaintiff, Craig Frederick Butler, is an eligible person and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that, in lieu of that provision, he is to receive 37 per cent of the estate of the deceased. (ii) Order that the time for the making of Carolyn's application be extended up to and including 23 November 2011, the date of the filing of her Summons. (iii) Having found that the Plaintiff, Carolyn Elizabeth Butler, is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she is to receive 13 per cent of the estate of the deceased. (iv) Order that the burden of the additional provision made for the Plaintiff, Craig Frederick Butler, and the provision made for Carolyn Elizabeth Butler, should be borne by the share of the estate passing to the Defendant, Fiona Lee Morris, with the result that she is to receive the balance, being 50 per cent, of the estate of the deceased. (v) Order that the lump sum that equates to the share of the estate passing to the Plaintiff, Carolyn Elizabeth Butler, is to be paid to the NSW Trustee and Guardian as the financial manager of that Plaintiff. (vi) Order that no interest is to be paid on the lump sum which equates to the share of the estate passing to each Plaintiff, if that lump sum is paid within 7 days of settlement of the sale of the Pennant Hills property; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (vii) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them. (viii) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings. (ix) Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of each of the Plaintiffs as well as in relation to any additional amount to be paid by Fiona be reserved. (x) Stand the matter over to a convenient date to the parties and the court for any argument as to costs. Catchwords: SUCCESSION - The Plaintiffs, an adopted son and an adopted daughter of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, also an adopted daughter of the deceased, to whom Probate of the deceased's Will was granted - Dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Craig - No dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Carolyn and that an order in favour of that Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne - Dispute concerning moneys used by the Defendant during lifetime of deceased Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Practice Note SC Eq 7 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thom v The Public Trustee (NSWSC, 2 April 1992, unreported) Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Twomey v Mcdonald [2012] NSWSC 22 Valbe v Irlicht [2001] VSC 53 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Category: Principal judgment Parties: Craig Frederick Butler (Plaintiff in 2010/283304) Carolyn Elizabeth Butler (bht NSW Trustee & Guardian) (Plaintiff in 2011/37523) Fiona Lee Morris (Defendant in 2010/283304) Fiona Lee Morris (as Executrix of the Estate of Sybil Ethel Butler Deceased) (Defendant in 2011/37523) Representation: Counsel: Mr A Hill (Plaintiff in 2010/283304) Mr A J McInerney (Plaintiff in 2011/374523) Mr C Vindin (Defendant in both proceedings) Solicitors: Butlers Will Dispute Lawyers (Plaintiff in 2010/283304) ZuckerLegal (Plaintiff in 2011/374523) Heckenberg & Koops Lawyers (Defendant in both proceedings) File Number(s): 2010/283304; 2011/374523