Jagoe v Maguire [2013] NSWSC 1283

Supreme Court New South Wales

Medium Neutral Citation: Jagoe v Maguire [2013] NSWSC 1283 Hearing dates: 26, 27 August 2013 Decision date: 12 September 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (i) Having found that the Plaintiff, John Bernard Jagoe, is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, orders that he should receive, by way of provision out of the estate of the deceased, a lump sum equivalent to 33 cent of the estate of the deceased, such lump sum to be calculated after deducting the costs and expenses associated with the sale of "Rosedale" and such costs of the proceedings as are ordered to be paid. (ii) Orders that the provision made for the Plaintiff should be borne by the beneficiaries of the deceased's estate equally. (iii) Orders that until the family provision order, and, if ordered to be paid out of the estate, the costs of the Plaintiff, are satisfied, there be a charge in favour of the Plaintiff given by the Defendants, secured on the title to "Rosedale" to secure the family provision order and those costs. (iv) Orders that no interest is to be paid on the lump sum, if it is paid within 28 days of the completion of the sale of "Rosedale"; otherwise, interest calculated at the rate prescribed by s 84A(3) of the 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) Orders that unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, shall be paid out of the estate of the deceased. (vi) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vii) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order and any costs order that is made. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as the spouse of the deceased - Long marriage - The Defendants are two of four children of the deceased by her first marriage, and the executors to whom Probate granted - The whole estate left to the four children of the deceased by her first marriage - No dispute as to Plaintiff's eligibility but dispute whether to make a family provision order - If order for provision made, quantum of provision that should be made Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984Succession Act 2006Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Bartlett v Coomber [2008] NSWCA 100 Belfield v Belfield [2012] NSWSC 416; (2012) 16 BPR 31,177 Bladwell v Davis [2004] NSWCA 170 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bourke, M A (dec'd) and the TFM Act [1968] 2 NSWLR 453 Clifford v Mayr [2010] NSWCA 6 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crewe, Re [1956] NZLR 315 Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harrisson v Skinner [2013] NSWSC 736 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 King v White [1992] 2 VR 417 Langtry v Campbell (NSWSC, 7 March 1991, unreported) Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marinis v Jeweller [2000] NSWCA 282 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Milillo v Konnecke [2009] NSWCA 109; (2009) 2 ASTLR 235 Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 Moore v Moore (NSWCA, 16 May 1984, unreported), Neale v Neale [2013] NSWSC 983 Oldereid v Chan [2013] NSWSC 434 Palaganio v Mankarios [2011] NSWSC 61 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Peters v Salmon [2013] NSWSC 953 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 Richard v AXA [2000] VSC 341 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308 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 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) White and Tulloch v White (1995) 19 Fam LR 696 Texts Cited: Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), J D Heydon and M J Leeming Category: Principal judgment Parties: John Bernard Jagoe (Plaintiff) Warwick Jeffery Maguire (first Defendant) Rory MacGregor Maguire (second Defendant) Representation: Counsel: Mr Rodney Weaver (Plaintiff) Mr Sinclair Gray (Defendants) Solicitors: Higgins Lawyers (Plaintiff) A R Walmsley & Co (Defendants) File Number(s): 2012/67113