Duffy v Duffy [2014] NSWSC 216

Supreme Court New South Wales

Medium Neutral Citation: Duffy v Duffy [2014] NSWSC 216 Hearing dates: 4 October 2013 Decision date: 17 January 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Order that the proceedings be dismissed Catchwords: SUCCESSION - Family Provision - Small Estate - Application by disabled adult son - In competition with widow of deceased - Insufficient assets to accommodate competing claims - Application dismissed. Legislation Cited: Succession Act 2006 NSW Cases Cited: Luciano v Rosenblum (1985) 2 NSWLR 65 McKenzie v McKenzie [1971] P 33 Smith v The Queen (1985) 159 CLR 532 Wheat v Wisbey [2013] NSWSC 537 Texts Cited: - Category: Principal judgment Parties: Tasman Herbert Duffy by his Tutor Carline Janne Duffy (Plaintiff) Tuula Anneli Duffy as Administratrix of the Estate of the Late Raymond Herbert Duffy (Defendant) Representation: Counsel: Ms CJ Duffy (as Mother and Tutor of the Plaintiff) with Mr S Gould, by leave, for the plaintiff Mr C K Stewart for the defendant Solicitors: Plaintiff: Self Represented Defendant: Morgan Ardino & Co File Number(s): 2013/0033586

Judgment

INTRODUCTION 1Through his mother acting as his tutor the plaintiff, an adult son of Raymond Herbert Duffy ("the deceased"), makes an application for an extension of time within which to make an application and, subject to an extension of time being granted, an application for family provision relief (under chapter 3 of the Succession Act 2006 NSW) from the estate, or notional estate, of the deceased. 2The defendant, the widow of the deceased and administratrix of his intestate estate, opposes any grant of relief to the plaintiff. Her principal defence to the proceedings is her contention that (as she is the widow of the deceased after 16 years of marriage to him, and the resources that are or might be made available for a grant of relief to the plaintiff are modest) she is entitled to primacy. 3As an incident of that defence, she opposes a grant, pursuant to s 58(2) of the Succession Act, of an extension of time within which the plaintiff might make an application for a family provision order; but she does not contend that she suffered prejudice as a result of the short delay, after expiry of the limitation period of 12 months after the date of death of the deceased limited by s 58, before the plaintiff commenced these proceedings. 4The case is a profoundly difficult one for three fundamental reasons. 5First, viewed in the abstract, the plaintiff has a meritorious claim on the bounty of the deceased: although an adult (aged 33 years), he suffers from chronic schizophrenia and has a borderline intellectual disability that requires regular medical supervision, constrains his capacity for remunerative employment and keeps him dependent upon his mother for day-to-day care. 6Secondly, although the plaintiff's mother conscientiously believes that there is, or must be, property (to which a family provision order might attach) beyond that disclosed by the defendant, the objective evidence presently before the Court, inadequate though the financial evidence is, suggests that the only property available, if any, is of modest dimensions. 7As disclosed in the Inventory of Property annexed to the letters of administration granted to the defendant, the deceased died with property worth $217,974.84, and with a half share in his (matrimonial) home as a joint tenant. 8Whether the deceased did die with property worth $217,974.84 is, at best, doubtful. More than half that sum ($137,790.00) is attributed, in the inventory of property, to a Mercedes motor vehicle acquired by the deceased shortly before his death, on lease. Another of the assets attributed to the deceased ($48,458.00) appears to have been held by him on trust for the beneficiaries in his late mother's estate, quite possibly his sister rather than himself. 9Other evidence, proferred as accounting evidence but not wholly coherent or consistent, suggests that, taking the deceased's liabilities into account, the estate he left was, at best, borderline insolvent. 10The only substantial property associated with him at the time of his death was his joint tenancy in the matrimonial home. It came to be unencumbered only through an application to his mortgage debt (and that of the defendant) of moneys sourced by the deceased from his late mother's estate. 11He died owing a total of about $113,000 on credit cards, an indebtedness which spanned more than a dozen cards and nine different creditors. 12There is, here, more than a hint that the deceased lived beyond his means. 13Thirdly, there is objective force in the defendant's claim to primacy as the widow of the deceased, particularly in light of: (a) her contributions (both financial and non-financial) to any accumulation of wealth by the deceased over the 16 years of their marriage; and (b) her own health at the age of 68 years. 14The case is no easier to decide for the passionate commitment of the plaintiff's mother to her son and (without objection, and, as condoned by McKenzie v McKenzie [1971] P 33 at 37B-38E, 40B, 4OH - 41F and 42E and by Smith v The Queen (1985) 159 CLR 532 at 534) her appearance, in person, for her son, with a McKenzie friend to assist her. 15The evidence adduced, and the submissions made in support of the plaintiff's case, were bedevilled by a lack of precision and his mother's earnest insistence (over reasoned denials by the widow) of an ongoing, but illicit, personal relationship with the deceased. 16There appears to be a degree of rivalry between the two women, suppressed though it has been in debate about the plaintiff's entitlements.