Lowe v Lowe (No 2) [2015] NSWSC 1626

Supreme Court New South Wales

Medium Neutral Citation: Lowe v Lowe (No 2) [2015] NSWSC 1626 Hearing dates: 19 - 20 October 2015 Decision date: 04 November 2015 Jurisdiction: Equity Before: Kunc J Decision: Additional provision ordered Catchwords: FAMILY PROVISION AND MAINTENANCE – Claim by second wife with own home and where she and deceased kept their financial affairs separate - Succession Act 2006, ss 57, 58, 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1 Lowe v Lowe [2015] NSWSC 48 Luciano v Rosenblum (1985) 2 NSWLR 65 Milillo v Konnecke [2009] NSWCA 109 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: Diana Mae Lowe (Plaintiff) Murray Francis Lowe (First defendant) Cameron Francis Lowe (Second defendant) Jodie Alexandra Lowe (Third defendant) Representation: Counsel: A Lakeman (Plaintiff) G Underwood (Defendants)

Solicitors: Yuill Lawyers (Plaintiff) Bull, Son & Schmidt (Defendants) File Number(s): 2014/263722 Publication restriction: No

Judgment

Summary 1. Australians are living longer, healthier lives. Consequently, second (or subsequent) marriages later in life are an increasing demographic reality. Often the couple will have children from their previous marriages. While those children may be happy for their respective parents in their new relationship, there is often a concern among those children that when their natural parent dies, the assets of their previous relationship should be applied only for the children of that previous relationship. This case raises that issue in the factual circumstance that the plaintiff and her second husband, the late Francis Alfred Lowe ("Mr Lowe") agreed to, and did in fact, keep their own assets and financial affairs separate. 2. Mr Lowe died on 9 April 2014 at the age of 79. The plaintiff is Diana Mae Lowe. She is 82 years old and is Mr Lowe's widow as the result of a second marriage for both of them. They were in a relationship for eight years, the last four of which were as a married couple. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names. 3. In addition to Diana, Mr Lowe was survived by his three adopted and now adult children, Murray, Cameron and Jodie. They are the defendants (to whom I shall refer collectively as such) and the only other eligible beneficiaries. 4. The deceased's estate (the "Estate") had a sworn value of $3,338,508.42. 5. The deceased left a will made on 14 August 2012 (the "Will"). Probate was granted to the defendants on 11 August 2014. Apart from some furniture and personal effects, all that Diana received under the Will (other than a limited right to reside in and purchase the matrimonial home) was a Mercedes-Benz car, to which the parties gave an agreed value of $45,000. 6. By amended summons filed on 29 September 2014, Diana applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr A. Lakeman of Counsel appeared for Diana. Mr G. Underwood of Counsel appeared for the defendants. 7. The defendants accepted that Diana was entitled to some additional provision. The amount of that provision was in dispute. The Court has determined that Diana is entitled to additional provision of $100,000. That amount is intended to ensure that her position is no better or worse than her circumstances at the time she began her relationship with Mr Lowe.