Borham v Montague

[2006] NSWSC 1289

CITATION:	Borham v Montague [2006] NSWSC 1289
HEARING DATE(S):	27/11/06, 28/11/06
JUDGMENT DATE :	28 November 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	11/28/2006
CATCHWORDS:	Family Provision. Application by second wife. Provision for maintenance granted. Provision of fee simple in residence refused.
PARTIES:	Mavis Olive Borham v William Errol Montague (Estate of Frank Anthony Borham & anor)
FILE NUMBER(S):	SC 6478/2004
COUNSEL:	Mr R Wilkinson for plaintiff Miss S Norton SC and Miss A Healey for defendant
SOLICITORS:	Harris Wheeler for plaintiff Stacks Taree for defendant
LOWER COURT JURISDICTION:	Compensation Court

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 28 NOVEMBER 2006

6478/04 - MAVIS OLIVE BORHAM v WILLIAM ERROL MONTAGUE - ESTATE OF FRANK ANTHONY BORHAM and ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Frank Anthony Borham who died on 12 July 2003 at the age of 72 years. He was survived by his widow, the plaintiff, his second wife and his six children by his first marriage. The plaintiff and the deceased had no children of their relationship.

The will of the deceased

2 The deceased made his will on 19 June 2003, shortly before his death. In paragraph 4 of that will he gave an option to his son, Philip, to purchase his dairy farm, subject to various purchase conditions. Clause 5 of the will dealt with his residency at 33 Kolodong Road, Taree in which he provided in a sense essentially for a right of residence for the plaintiff, his widow. Clause 5 of the will is in the following terms:

“I direct my Trustees, concerning my property at 33 Kolodong Road Taree (hereinafter referred to as ‘the home’) as follows:
(a) my wife Mavis Olive Borham may reside in the home for as long as she wishes provided she pays the rates and taxes levied on the home, the premiums on any insurance policies taken out by my Trustees on the home and keeps it in repair to the satisfaction of all of my Trustees.
(b) Until my said wife has ceased to live in the home permanently or to comply with the conditions of her right of occupation, it shall not be sold without her consent.
(c) At the written request of my said wife, my Trustees shall sell the home and buy another residence or interest in a retirement village to which the same provisions as those expressed in this clause shall apply.
(d) Any cash balance arising from the sale and purchase shall form part of the residue of my estate and any deficit shall be met by my said wife and any costs whatsoever incurred in the sale and purchase shall also be met from the sale proceeds of the home.
(e) Once my said wife has either ceased to live permanently in the home, or in any new…