Burt v Agius

[2003] NSWSC 461

CITATION:	Burt v Agius [2003] NSWSC 461
HEARING DATE(S):	19, 24 February 2003
JUDGMENT DATE:	29 May 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I stand the matter over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and for submissions as to costs.
CATCHWORDS:	Succession - Family Provision - Claim by two adult children - All assets of Deceased were held conjointly with his wife, the Defendant - Prescribed transactions - Notional estate - Financial and material circumstances of Plaintiffs - Obligation upon Plaintiffs to place before the Court as fully and as frankly as possible all details of their financial and material circumstances - Competing claim of Defendant.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Damien Burt (First Plaintiff) Tabatha Burt (Second Plaintiff) Josephine Agius (Defendant)
FILE NUMBER(S):	SC 5847/01
COUNSEL:	E. Cohen (Plaintiffs) J.E. Armfield (Defendant)
SOLICITORS:	Adams & Partners, Lawyers (Plaintiffs) Mulally Mylott Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 29 May 2003

5847 of 2001 DAMIEN BURT and TABATHA BURT -v- JOSEPHINE AGIUS

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 6 December 2001 the Plaintiffs, Damien Burt and Tabatha Burt, claim an order for provision for their maintenance, education and advancement in life out of the estate or notional estate or both of their late father, John James Burt, also known as John James Agius (to whom I shall refered as “the Deceased”).

3 The Deceased died on 8 December 2000, aged forty-eight. He had on 20 May 1993 changed his name (by Instrument Evidencing Change of Name) from John Burt to John Agius. (Despite the terms of that instrument (which is Exhibit 1 “A”), it would appear that the Deceased had formerly used the name John James Burt and that after executing the aforesaid instrument he used the name John James Agius.)

4 The Deceased made a will on 14 February 1994, by which he appointed the Defendant, Josephine Agius, as executor and gave to her the entirety of his estate.

5 For reasons which will shortly emerge, that Will was never admitted to Probate. The Plaintiffs, however, on 5 July 2002 obtained a Grant of Letters of Administration pursuant to section 41A of the Wills, Probate and Administration Act 1898 for the purposes only of an application under the Family Provision Act being made by the Plaintiffs.

6 At the time of his death the only assets held by the Deceased were held by him conjointly with the Defendant. Those assets included a house property at 14 Norris Place, Narellan Vale, of which the Deceased and the Defendant were registered proprietors as joint tenants, and a property at 14 On Avon Avenue, Oberon, of which the Deceased and the Defendant were registered proprietors as joint tenants. Each of those properties passed to the Defendant by survivorship upon the death of the Deceased.

7 In consequence, there was no actual estate of the Deceased. Any order for provision which might be made in favour of one or both of the Plaintiffs would therefore be an order made in respect to notional estate of the Deceased, and would require the designation as such notional estate of property which is presently held by the Defendant.

8 The Deceased, who was born on 18 November 1952, died, aged forty-eight, as a result of a motor accident on 8 December 2000 when the petrol tanker which he was driving overturned near Ourimbah, and the Deceased was incinerated.

9 The Deceased married three times. His first wife was Denise, who was the mother of the two Plaintiffs. Damien was born on 2 June 1973 and is now aged twenty-nine. Tabatha was born on 11 June 1976 and is now aged twenty-six.

10 The Deceased and his first wife separated in 1979. He married his second wife Elizabeth sometime subsequently. However, that marriage was dissolved on 11 May 1994. Three children were born of the Deceased’s second marriage, being Michael John James (born 10 October 1986, who is presently aged sixteen), Andrew John James (born 23 February 1989, who is presently aged fourteen) and Ryan John James (born 9 December 1990, who is presently aged twelve).

11 The Deceased met the Defendant in 1991. They lived together as husband and wife from then until the death of the Deceased, except for the period October 1991 to March 1992. The Deceased and the Defendant married on 17 June 1995. No children were born to the union of the Deceased and the Defendant.

12 The Defendant herself was born on 25 November 1958, and is presently aged forty-four. She also has been married three times. Of her first marriage (to Geoffrey Kennedy) was born one child, Michael Lawrence (born 1 August 1980, who is presently aged twenty-two). Of her second marriage (to Paul Anthony Sullivan) was born one child, Stephanie Theresa (born 10 August 1984, who is presently aged eighteen).

13 At the time when the Defendant met the Deceased in 1991 he was working as a street cleaner for the Liverpool Council, and also performing work at night as a security guard at Milperra University. Shortly after they met the Deceased and the Defendant commenced to live together in rented accommodation at Liverpool, the Defendant’s children Michael and Stephanie residing with them. During the period of separation from October 1991 until March 1992 the Deceased resumed cohabitation with his second wife and their three sons.

14 According to the Defendant, at the commencement of her cohabitation with the Deceased in 1991 the assets of the Deceased consisted of clothing and personal effects, whilst the assets of the Defendant consisted of savings in a bank account of approximately $10,000, together with household furniture (to which the Defendant ascribed a value of about $15,000).

15 Both the Deceased and the Defendant were in regular employment from the time when they commenced cohabitation in 1991 until the death of the Deceased in 2000.

16 In October 1993 they purchased a property at Lot 5019 Tramway Drive, Currans Hill as joint tenants. The Defendant contributed about $5,000 of her savings as the deposit upon that property. The balance was met by a joint loan obtained by the Deceased and the Defendant (which I gather to have been secured by mortgage over that property). In September 1996 the Currans Hill property was sold and the Deceased and the Defendant purchased a house property at 14 Norris Place, Narellan Vale as joint tenants. The proceeds of sale of the Currans Hill property were applied towards the purchase of the Narellan Vale property. The balance of the purchase price was met by a joint loan from the St George Bank, which was secured by a mortgage over the Narellan Vale property. Both the Deceased and the Defendant made repayments in respect to each of the Currans Hill property and the Narellan Vale property from their joint bank account.

17 In March 2000 the Deceased and the Defendant purchased a property at 14 On Avon Avenue, Oberon as joint tenants. The purchase of that property was funded by the Deceased and the Defendant increasing the mortgage on the Narellan Vale property by an amount of about $70,000 and by extending the mortgage to cover both the Narellan Vale property and the Oberon property.

18 As I have already observed, both the foregoing properties passed to the Defendant by survivorship. On 1 March 2002 the Defendant exchanged contracts for the sale of the Narellan Vale property for $309,950. Upon settlement of that sale on 15 April 2002 the Defendant received a net amount of $31,447, the balance of $255,204 being used to discharge the mortgage over that property and over the Oberon property.

19 At the time of his death the Deceased owed the Child Support Agency the sum of $1,410, for maintenance of the three sons of his second marriage. That amount remains unpaid. In about October 2001 the Defendant received a death benefit from Colonial Select Superannuation Pty Limited in the sum of $255,000, consequent upon the death of the Deceased. The Defendant expended that money by discharging in part the mortgage which was secured over the Narellan Vale property and the Oberon property. A further death benefit in the sum of $45,000 was paid to the Deceased’s second wife, as trustee for the three children of the Deceased’s second marriage.

20 Also in consequence of the death of the Deceased the Defendant has received $9,366 a year by way of superannuation from CommSuper. According to the Defendant that superannuation is paid to her fortnightly in an amount of about $359, and that benefit will be paid to her for life. In addition, the Defendant’s daughter Stephanie received a benefit of $1,981 a year by way of superannuation from CommSuper, but that benefit ceased when the Stephanie commenced employment in January 2002.

21 The Defendant received a further payment by way of superannuation in an amount of $15,284 from Connolly Temple Superannuation, as a result of the Deceased being a member of a superannuation fund when he was employed as a driver and clerical worker for the Myrtle College for the Physically Disabled from 1998 to November 2000. The Defendant said that those moneys were used by the Defendant to meet living expenses, including mortgage payments.

22 The Defendant also instituted proceedings in the Compensation Court of New South Wales in respect to the death of the Deceased. Those proceedings were ultimately settled, an order giving effect to such settlement being made on 12 February 2003. By that order the present Defendant was awarded compensation in respect of the death of the Deceased in the sum of $256,400 and in addition thereto a weekly amount of $80.60 from 8 December 2000 to 31 March 2001, $82.40 from 1 April 2001 to 30 September 2001 and $83.90 from 1 October 2001 to 1 February 2002 in respect of Stephanie Theresa Agius and equivalent weekly amounts for those periods and thereafter in respect of the children of the second marriage of the Deceased. The Compensation Court also awarded interest on the sum of $256,400 at a rate of 10 percent from 6 November 2001 to 28 February 2002 and 9 percent from 1 March 2002 to 12 February 2003, as well as interest at equivalent rates for equivalent periods on the aforementioned weekly amounts.

23 The Compensation Court ordered that the sum of $256,400 be apportioned as follows:

(a) $89,740 in favour of the applicant, Josephine Agius

(b) $89,740 in favour of the second respondent, Stephanie Theresa Agius

(c) $76,920 in equal shares between Michael John James Burt, Andrew John James Burt and Ryan John James Burt.

24 The suggestion was made to the Defendant in cross-examination that the purpose of the apportionment of the $256,400 by way of an amount of $89,740 in favour of herself and $89,740 in favour of her daughter Stephanie was, in reality, a ploy by which the Defendant was enabled to reduce her assets for the purposes of the present proceedings. The Defendant denied that suggestion and said that the foregoing apportionment was made upon the recommendation of her barrister, who had informed her that the Compensation Court would not approve the settlement unless there was such an apportionment. It does seem to me somewhat curious that Stephanie, the step-daughter of the Deceased, who whilst residing with her mother and the Deceased must, at least to an extent, have been dependent upon her mother, the Defendant, was in the consent orders in the Compensation Court the subject of a finding that she was “wholly dependent for support upon the Deceased at the time of his death”, and that Stephanie received more than a quarter of the settlement figure whilst the three infant children of the Deceased, to whom the Deceased owed a responsibility for maintenance, shared amongst themselves a significantly smaller sum.

25 The Defendant in October 2001 entered into a de facto relationship with Mr Stephen Baker. He is employed as a truck driver, receiving a net income of $800 a week. The Defendant herself is employed as a funeral director for Hills Family Funerals. In that position the Defendant works varying hours, usually two or three days a week. She receives a net income of about $300 a week from that employment. In addition, she receives the foregoing amount of about $359 a fortnight from CommSuper. In consequence, the average net weekly income of the Defendant and her present partner is about $1,280. Mr Baker was previously married, but separated from his wife in July 2001. Proceedings in the Family Court are presently on foot in respect to matrimonial property owned by Mr Baker and his former wife.

26 On 9 December 2001 the Defendant and Mr Baker exchanged contracts for the purchase of a residential property situate at and known as 13 Milguy Avenue, Castle Hill, that purchase being settled on 1 March 2002. The purchase price was $465,000, the entirety of which sum was borrowed by the Defendant and Mr Baker from the St George Bank. The Narellan Vale property was sold by the Defendant and part of the proceeds of sale were used to reduce the indebtedness to the St George Bank to $208,000. In her affidavit of 25 July 2002 the Defendant set forth details of her present assets, being her interest in the Castle Hill property, her ownership of the Oberon property ($59,000), cash in bank ($38,882), household furniture and effects ($20,000), 1998 Holden Vectra motor car ($17,000).

27 Mr Baker’s assets consist of his interest in the Castle Hill property and a 2001 Holden utility motor vehicle ($25,000).

28 The Defendant’s only liability is the mortgage to the St George Bank, presently standing in an amount of almost $210,000. That is a joint and several liability of herself and Mr Baker. The only other liability of Mr Baker is a car loan in respect of his Holden utility motor vehicle ($10,000).

29 The Defendant’s daughter Stephanie commenced employment in January 2002. She makes a contribution of $15 a week by way of board to her mother.

30 It has already been recorded that the Plaintiff Damien John Burt was born on 22 June 1973, of the marriage of the Deceased to his first wife, Denise. Damien is twenty-nine years of age. His parents separated when he was five years old. From that time he saw the Deceased on only about four occasions. So far as Damien is aware, the Deceased paid maintenance until he attained the age of sixteen in 1986, but he did not pay any maintenance or otherwise support Damien after that time. Neither did the Deceased make any attempt to see Damien after his separation from Damien’s mother.

31 Damien attended school in Penrith, attaining the School Certificate. He then completed an apprenticeship of four years as a roof tiler. He stated in his affidavit evidence that, although currently not employed, he is able to obtain casual work most of the time as a subcontractor. It was Damien’s evidence that he could not afford to start a business of his own as he could not afford to purchase the equipment. He works alone as he cannot afford to employ people and cannot afford the equipment, advertising infrastructure and capital that would be needed to operate a business as a roof tiler.

32 Damien resides with his girlfriend Roxanna Vella, to whom he pays rent of $150 a week. They have been together in a de facto relationship since 1996. There are no children of that relationship. The house in which they reside, at St Clair, is subject to a mortgage, upon which $230,000 is outstanding. Miss Vella is employed as a sales representative.

33 Damien owns a Holden Rodeo utility (to which he ascribes a value of $21,000), and upon which he currently owes $17,000. He uses that utility in his roof tiling business. Otherwise he has no significant assets.

34 It was the affidavit evidence of Damien that he was desirous of expanding his business and remaining competitive in the roof tiling area. He desired in the near future to purchase a tile elevator, which he said was essential to the roof tiling business. As a sole operator he finds it difficult to remain competitive in the roof tiling industry, and it was his stated intention in the near future to expand his business and possibly to take on another worker or apprentice.

35 Damien gave evidence of the symptoms from which he suffers concerning pain and irritation in his ankles, which appears to be exacerbated by his work. However, he has not obtained any medical advice concerning this problem, stating that he could not take time off work to visit a doctor, although he was desirous of doing so.

36 If Damien has to give up work as a roof tiler, he said that he might have to consider some form of retraining or other education options.

37 It has already been recorded that Tabatha was born on 11 June 1976, also of the marriage of the Deceased to his first wife, Denise. Tabatha is twenty-six years of age. Tabatha’s parents separated in 1979 when she was aged only three. She has little memory of the separation or of having any contact with the Deceased during her childhood. It is the understanding of Tabatha that the Deceased did contribute financially to her upbringing until she was eleven years of age, but that her mother was unable to locate the Deceased after that time.

38 When Tabatha was aged about seventeen and was in Year 12 at school she attempted to locate her father with the assistance of the Salvation Army. In about 1993 or 1994 Tabatha and the Deceased communicated by letter, through the Salvation Army. However, they subsequently appear to have lost contact with each other. In early 2001 Tabatha became aware of the death of her father and attended his funeral.

39 Tabatha attended school in Penrith and completed her secondary education, obtaining the Higher School Certificate in 1994, with the assistance of part-time employment and some Austudy payments. She thereafter studied design at a TAFE college, supporting herself for one year by employment and Austudy.

40 Tabatha’s first son Jye was born on 30 April 1997. Her relationship with her son’s father broke up shortly thereafter, and Tabatha moved back to reside with her mother. According to her affidavit evidence, in consequence of her changed circumstances Tabatha was unable to continue with her design course. In her affidavit she said that she has been unable to obtain employment, and maintains herself from Social Security payments and some Child Maintenance payments (which I gather to be from the father of her children). After a temporary reconciliation with the father of her first child Tabatha gave birth to her second child Harrison on 31 March 2001. She stated in her affidavit evidence that she considered it unlikely that she would again be reunited with the father of her two children. Those children are now aged six and two.

41 Tabatha and her children currently reside with her mother at Penrith. She is in receipt of Social Security benefit, being a Sole Parent’s Pension. She also has commenced part-time work, upon a probationary basis, at the Log Cabin Hotel, her mother caring for the children whilst Tabatha is at work.

42 Tabatha said in her affidavit evidence that she has no assets. She shares the rent of the Penrith residence with her mother. She stated that it is financially hard for her to provide for her children and herself and that the Social Security benefits which she receives do not adequately cover her expenses.

43 It was the expressed desire of Tabatha that her children receive a private school education and that they be given opportunities which she herself did not receive. She stated that she had investigated local Catholic schools.

44 Tabatha also set forth in her evidence her intentions concerning further training and the obtaining of qualifications in the field of design, with a view to being able to earn more money for herself. She stated that she can return to full-time study when her children reach primary school age, those studies being directed to design and interior design. She has made inquiries of the University of Western Sydney and the University of Technology, Sydney concerning a full-time course.

45 Evidence was placed before the Court by Denise Burt, the mother of the two Plaintiffs, who was the first wife of the Deceased.

46 At the time of the separation of the Plaintiff’s parents in 1979 they had just completed the construction of a new residence, but had not yet commenced occupation. Until then they had resided in army accommodation, since the Deceased was a member of the Australian Army, holding the rank of sergeant. Upon the separation the house was sold and it would appear that Denise received nothing from that sale. After the separation the Deceased paid to her $20 a week for the maintenance of the two children. However, when Damien attained the age of sixteen the Deceased stopped paying maintenance for either of the children.

47 Mrs Denise Burt brought up her two children alone, and resided throughout the entirety of that period to the present time in rented accommodation. Tabatha contributes $95 to the rent of the accommodation in which she, her two children and her mother presently reside. According to Mrs Denise Burt, she often had difficulty in obtaining maintenance payments from the Deceased, and it was frequently necessary for her to invoke the aid of the Court by way of garnishee proceedings to enforce maintenance orders against the Deceased. She said that the Deceased did not ever send presents to his children at Christmas or on birthdays, and did not otherwise acknowledge those occasions. By the time Tabatha reached the age of thirteen her mother had lost contact with the Deceased and was not able to locate him, even to obtain payment of the child maintenance.

48 According to Mrs Denise Burt, the second wife of the Deceased has since remarried.

49 It will be appreciated that in relation to any assets which may be designated as notional estate of the Deceased, the costs of the present proceedings are of relevance.

50 In accordance with prescribed practice, the solicitors for the parties have filed affidavits setting forth details of the costs of their respective clients. It is estimated on behalf of the Plaintiffs that the costs of the present proceedings to date, including the costs of obtaining a grant of letters of administration, total about $9,700, whilst Counsel’s fees for a two day hearing will be about $7,500, totalling altogether about a little over $17,000. In addition, it would appear that the Plaintiffs instituted earlier proceedings against the Defendant which were ultimately struck out, and that the Plaintiffs themselves incurred costs of $440 in respect of those proceedings, whilst the Defendant is claiming an amount of $2,500 from the Plaintiff in respect thereto.

51 It is estimated on behalf of the Defendant that the total costs of the present proceedings will be in the order of $32,000. Further, that the Defendant has already incurred costs of about $11,500 in realising the assets of the estate, and in transferring estate properties to herself, and in “dealing with other prospective claims”.

52 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiffs.

53 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties and a chronology from Counsel for the Plaintiffs. Those documents will be retained in the Court file.

54 Each of the Plaintiffs as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such each Plaintiff has the standing to bring the present proceedings. It will be appreciated that the Defendant, as the widow of the Deceased, is also an eligible person in relation to the Deceased, being such within paragraph (a) of the definition. Further, each of the previous wives of the Deceased is also an eligible person, being such within paragraph (c) of the definition, whilst each of the other children of the Deceased (being the three children of the second marriage of the Deceased) is also an eligible person within paragraph (b) of the definition. Apart from the Defendant, the Plaintiffs have served a notice of claim upon each of the other eligible persons. No other eligible person has made a claim against the estate of the Deceased. In the absence of any such claims by eligible persons, the interests of those other eligible persons may be disregarded by the Court (section 20 of the Family Provision Act).

55 It cannot be emphasised too strongly that it is the obligation of an applicant for an order for provision to place before the Court as fully and as frankly as possible all available information concerning the financial and material circumstances of that applicant. In the instant case this the Plaintiffs have signally failed to do so.

56 In her affidavit evidence Tabatha made no reference to the ownership of a motor car which she purchased about a year before the hearing, and for which she paid $7,000 (that purchase price being borrowed by her). Neither did she make any reference to the existence of a bank account which she conducts with Westpac Banking Corporation (in which she had a credit balance of $850 shortly before the hearing). Neither did she make any reference to the fact that since shortly after the birth of her younger son Harrison on 31 March 2001 Tabatha has been receiving by way of child maintenance from the father of her two children an amount of $50 a week in respect of each child. Those facts were elicited from her under cross-examination. She was not able to offer any explanation for their omission from her affidavit evidence.

57 Similarly, the Plaintiff Damien Burt has signally failed to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances.

58 In his affidavit evidence Damien made no mention of the fact that his business as a roof tiler was conducted through the medium of a company, A1 Roof Tiling Pty Limited, of which Damien is the sole director and the sole shareholder. That company was incorporated on 12 November 1999 (more than two years before the present proceedings were instituted). Damien is the sole employee of that company, which pays him a wage. Neither did he mention in his affidavit evidence that he has a present superannuation entitlement in excess of $11,000. Neither did he mention in his affidavit evidence that he had in contemplation pursuing some other form of tertiary training, such as a course in information technology. Damien did not choose to place before the Court any documentary material concerning A1 Roof Tiling Pty Limited, such as profit and loss accounts or balance sheets, or business activity statements or income tax returns. He agreed that that company on average renders bills totalling $1,260 a week.

59 The foregoing facts were elicited from Damien under cross-examination. He was able to offer no explanation whatsoever for their omission from his affidavit evidence. It will be appreciated that those facts, especially those concerning his current business as a roof tiler and concerning the income of his company, as well as the not insignificant asset of his present superannuation entitlement, cast an entirely different light upon Damien’s claim. The clear impression given by his affidavit evidence was that he was a tradesman carrying on business on his own account, with no employees and currently no income by way of subcontracting work.

60 An applicant for provision under the Family Provision Act must establish his or her claim upon its own merits. An applicant cannot attempt to establish an entitlement to an order for provision by establishing, if the applicant can, that the person who receives benefits as a result of the death of the deceased person (in the instant case, the Defendant) is in more affluent financial circumstances than the applicant.

61 I do not overlook the fact that the Deceased failed in his responsibilities to support and maintain the Plaintiffs whilst they were growing up. However, the Court must proceed to a consideration of the claims of the Plaintiffs “having regard to the circumstances at the time the order is made” (section 7 of the Family Provision Act). Under cross-examination Damien said that, upon the assumption that his company continues to trade as it was from last year until about a fortnight before the hearing, he was well able to support himself from the earnings of the company.

62 Similarly, Tabatha (whose average weekly income, from her employment (on average, not less than $287), from the father of her children ($100), from the Family Allowance (about $170)) is about $557) agreed that she was able to pay her way and her expenses on the amounts which she receives by way of income and family allowance. Each of the Plaintiffs is presently secure in his or her accommodation, although that accommodation is in each case rented accommodation.

63 Doubtless each Plaintiff would like to receive some additional benefit or to have a higher income. Damien has outlined his wishes for the expansion of his business, by taking on an employee and acquiring new and additional equipment.

64 The Plaintiffs, by offering extremely skimpy and incomplete information concerning their financial and material circumstances, make it difficult for the Court to perform the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208, and decide whether the Plaintiffs (or either of them) have been left without adequate provision for his or her proper maintenance, education and advancement in life.

65 Doing the best I can with the material presented by the Plaintiffs, it seems to me that the only need which Damien has identified is a fund to tide him over the present lack of tiling work from his former regular source of work, and the only need which Tabatha has identified is a fund to serve as a cushion to meet unexpected contingencies.

66 I consider it appropriate that Damien should receive a modest legacy from the estate of the Deceased, in the sum of $20,000, and that Tabatha should also receive a modest legacy from the estate, in the sum of $30,000.

67 As I have already indicated, there were no assets held by the Deceased at the time of his death, and the only assets were the Narellan Vale property and the Oberon property, each of which passed by survivorship to the Defendant.

68 In consequence, the Plaintiffs can receive benefits in the foregoing sums of $20,000 and $30,000 respectively (or, indeed, in any sum) only if one or more of the assets presently held by the Defendant be designated as notional estate of the Deceased.

69 In respect to each of the jointly owned pieces of real estate the Deceased at any time up to his death was entitled to sever the joint tenancy between himself and the Defendant. I consider that his failure to do so constituted a prescribed transaction of the nature referred to in section 22 of the Family Provision Act. By section 27(1) of the Act the Court is enjoined not to make an order designating property as notional estate unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order, and

(c) any other matter which it considers relevant in the circumstances.

70 The Defendant was a loving and devoted partner and wife to the Deceased for more than eight years. The Defendant, however, is now in a new relationship. She and her new partner have, through the efforts of the Defendant and the Deceased and now through the efforts of the Defendant and her new partner, acquired reasonably substantial assets. Further, the Defendant has in consequence of the death of the Deceased received considerable amounts by way of superannuation and workers compensation, and will receive an army pension (CommSuper) for the remainder of her life.

71 In my conclusion, the foregoing provisions of section 27(1) of the Act do not preclude me from making an order of the nature which I have indicated.

72 I propose, therefore, that the Court should designate as notional estate of the Deceased one or more of the Oberon property (which was held by the Deceased and the Defendant conjointly before his death and which, upon the death of the Deceased, devolved upon the Defendant by survivorship) and the Castle Hill property, towards the reduction of the mortgage whereover the proceeds of sale of the formerly jointly owned Narellan property (sold by the Defendant in April 2002 for $309,950) were devoted. I consider that the Defendant should have an opportunity of indicating whether she has any preferences as to which of those assets should be designated as notional estate of the Deceased. Accordingly, I propose to stand the matter over to enable the parties to bring in short minutes to reflect my foregoing conclusions, which I summarise as follows.

73 I consider that the Plaintiff Damien Burt has established an entitlement to receive out of the notional estate of the Deceased a legacy in the sum of $20,000, and that the Plaintiff Tabatha Burt has established an entitlement to receive out of the notional estate of the Deceased a legacy in the sum of $30,000, and that those legacies should not bear interest if paid within three months of today.

74 Counsel for the Defendant indicated at the hearing that he wished to make submissions as to costs after the delivery of my reasons for judgment. He will be given an opportunity to do so.

(1). I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and for submissions as to costs.

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Last Modified: 07/15/2003