Wheat v Wisbey [2013] NSWSC 537

Supreme Court New South Wales

Medium Neutral Citation: Wheat v Wisbey [2013] NSWSC 537 Hearing dates: 19 & 20 March 2013 Decision date: 13 May 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (i) Having found that each Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, order that the Plaintiff, Cheryl Ann Kennedy, receive a lump sum of $50,000; the Plaintiff, Dianne Patricia Doherty, receive a lump sum of $40,000; and the Plaintiff, Lorraine Kathleen Meharg, receive a lump sum of $35,000 out of property designated as notional estate of the deceased unless otherwise paid by the Defendant, Faye Anderson Wisbey. (ii) Being satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made, the burden of the provision made for each Plaintiff, any interest thereon, and the costs, should be borne out of property designated as notional estate of the deceased unless otherwise paid by the Defendant. (iii) Order that the Defendant pay each of the lump sums and pay or provide security for the Plaintiffs' costs within 28 days, failing which consideration is reserved to any party to apply for an order designating property held by the Defendant for the purposes of satisfying the family provision orders made any interest thereon, and for satisfying the orders for costs of proceedings. (iv) Order that no interest is to be paid on each lump sum, if that lump sum is paid within 28 days of the making of these orders; 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 of the lump sum. (v) Order that the Defendant pay the costs of the Plaintiffs, calculated on the ordinary basis, and her own costs calculated on the indemnity basis out of the notional estate of the deceased unless otherwise paid by her. (vi) Order pursuant to s 72 of the Succession Act 2006 that each family provision order not take effect as if the provision was made in a codicil to the will of the deceased. (v) 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. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left Will but no application for administration made at date of hearing - Whether grant of administration is necessary in order to deal with application - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made. Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Amendment (Family Provision) Act 2008 Succession Act 1981 (Qld) Succession Act 2006 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cassel, Re Estate [2000] NSWSC 294 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12 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 Estate Harriett Cassel, Re [2000] NSWSC 294 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hitchcock v Pratt [2010] NSWSC 1508 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 McLeod v Johns (1981) 1 NSWLR 347 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Oldereid v Chan [2013] NSWSC 434 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1 Category: Principal judgment Parties: Lynette Gail Wheat (first Plaintiff) Cheryl Ann Kennedy (second Plaintiff) Lorraine Kathleen Meharg (third Plaintiff) Dianne Patricia Doherty (fourth Plaintiff) Faye Anderson Wisbey (Defendant) Representation: Counsel: Mr J Loxton (Plaintiffs) Mr M Bradford; Ms A Poljak (Defendant) Solicitors: Gamble Law & Estate Planning (Plaintiffs) Lindsay Brien Solicitor (Defendant) File Number(s): 2012/124617