Woodleigh v Williams [2016] NSWSC 979

Supreme Court New South Wales

Medium Neutral Citation: Woodleigh v Williams [2016] NSWSC 979 Hearing dates: 16, 17, 18, 19 May 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Jurisdiction: Equity Before: Kunc J Decision: Summons dismissed Catchwords: FAMILY PROVISION AND MAINTENANCE – Notional estate – Claim by 63 year old adult child – Insolvent estate – Only possible notional estate family property held by deceased and second defendant as joint tenants – Second defendant's reasonable expectations in relation to family property because he had built home on property and otherwise contributed to costs of acquisition – Succession Act 2006, s 87 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Cetojevic v Cetojevic [2007] NSWCA 33 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: Anne Florence Woodleigh (Plaintiff) James Harold Williams (First Defendant) Robert William McDowell (Second Defendant) Representation: Counsel: M. Fantin (Plaintiff) D. Liebhold (First and Second Defendant)

Solicitors: Gary Cassim & Associates (Plaintiff) Turner Freeman (First and Second Defendant) File Number(s): 2014/353582 Publication restriction: No

Judgment

Summary 1. This is a claim for a family provision order out of the estate and notional estate of the late Dorothy Edna McDowell ("Dorothy"). The plaintiff is Ms Anne Woodleigh. She is now 63 years old and is one of Dorothy's four children. Dorothy died on 26 March 2014 at the age of 91. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names. 2. Dorothy made her will on 14 September 2012 (the "Will"). She appointed a friend, Mr James Harold Williams ("James") and her late husband, Hugh Dickey McDowell ("Hugh") as her executors. James appears in these proceedings as the first defendant. 3. Dorothy left her estate (the "Estate") to her four children in equal shares. The assets in the Estate had a sworn value for probate of $41,910.08. Probate was granted to James on 10 September 2014. 4. Dorothy owned a property at Sackville North (the "Family Property") jointly with her son, Robert William McDowell ("Robert") who appears in these proceedings as the second defendant. Dorothy's share of the property passed to Robert by survivorship upon her death. 5. The joint tenancy was created by a transfer dated 29 January 2008 whereby Dorothy transferred a half share in the Family Property (that she owned outright) to Robert for no recorded consideration. Robert had contributed to the purchase price of the Family Property and the construction of a home on the property in which Robert had lived for many years. The transfer reflected part of what the Court is satisfied was an arrangement or understanding between Dorothy, Hugh and Robert about Robert being beneficially entitled to the Family Property. 6. By summons filed on 1 December 2014, Anne applies for provision out of the Estate under Part 3.2 of the Succession Act 2006 (NSW) (the "Act"). She also applies for an order designating the Family Property as notional estate. That is the only asset available to be so designated. Mr M. Fantin of Counsel appeared for Anne. Mr D. Liebhold of Counsel appeared for the defendants. 7. In addition to Robert and Anne, Dorothy's two other children, John McDowell and Jeanette McQuillan are the only other eligible beneficiaries in the estate. Although they had notice of these proceedings, they played no part in them. 8. The Court has decided that no further provision should be made for Anne. In those circumstances, no notional estate order can be made. Even if the Court were persuaded that an order for provision ought be made, the Court would not have acceded to Anne's application to designate the Family Property as notional estate. To do so would have undone Robert's reasonable and legitimate expectations based on his financial contributions to its purchase and in building his family residence there. Such designation would have resulted in the sale of the Family Property and Robert being displaced from the house that he had built and lived in for over thirty years.