Wayne Laurence Savage v Rebecca Ferguson [2014] NSWSC 703

Supreme Court New South Wales

Medium Neutral Citation: Wayne Laurence Savage v Rebecca Ferguson [2014] NSWSC 703 Hearing dates: 18 December 2013 Decision date: 30 May 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Order for provision made Catchwords: FAMILY PROVISION AND MAINTENANCE - Adult children - No issue of principle - Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Foley v Ellis [2008] NSWCA 288 Camernik v Reholc [2012] NSWSC 1537 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Verzar v Verzar [2014] NSWCA 45 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Wayne Laurence Savage (First Plaintiff) Marilyn Frances Smith (Second Plaintiff) Rebecca Ferguson (First Defendant) Representation: Mr G. Van der Vlag (Plaintiffs) Mr G. Graham (Defendant) Solicitors: Malcolm Angus Cox (Plaintiffs) TD Kelly & Co (Defendant) File Number(s): 2013/112068 Publication restriction: No

Judgment

Summary 1Wayne Savage (the first plaintiff) is the son of the late Shirley Gladys Savage ("Mrs Savage"). Mrs Savage died 6 May 2012 at the age of 82. By her will made on 25 November 2011 Mrs Savage left $5,000 to her son and $5,000 to her daughter Marilyn Smith (the second plaintiff). The residue of her estate was left to her grand-daughter Rebecca Ferguson (Marilyn Smith's daughter and the defendant). 2Without disrespect, I shall refer to the parties and others who feature in this judgment by their given names. Wayne, Marilyn and Rebecca are the only eligible beneficiaries in the estate. 3Rebecca is the executor appointed under Mrs Savage's will. Probate was granted to Rebecca on 13 June 2012. 4The estate comprises a property at 115 XXXX Street, Tahmoor, NSW (the "Tahmoor property") valued at $580,000, the estate bank account holding $2,458.43 and a 2002 Nissan motor vehicle with an estimated value of $1,000. 5By summons filed on 12 April 2013, Wayne and Marilyn apply for provision out of their mother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr G. Van der Vlag of Counsel appeared for Wayne and Marilyn. Mr G. Graham of Counsel appeared for Rebecca. The claim by Marilyn was resolved between the parties with the result that at the commencement of the hearing I made orders by consent for an additional provision in favour of Marilyn of $80,000 and for her costs of $24,500. 6The hearing concerned Wayne's claim. He is entitled to additional provision of $45,000 from the estate.