Deron v Deron
[2001] NSWSC 807
•16 August 2001
CITATION: Deron v Deron [2001] NSWSC 807 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 5033/98 HEARING DATE(S): 20, 21 June 2000; 16 August 2001 JUDGMENT DATE:
16 August 2001PARTIES :
William John Deron (P)
Lydia Deron (D)JUDGMENT OF: Young CJ in Eq
COUNSEL : Plaintiff in person
M S Willmott (D)SOLICITORS: Plaintiff in person
Eric Butler (D)CATCHWORDS: SUCCESSION [296]- Family Provision- Claim by adult son- Claimant impecunious- Claimant lives in property owned by widow rent free- Widow promises to leave that property to claimant- Estate only sufficient to provide for widow- Application dismissed. LEGISLATION CITED: Family Provision Act 1982 DECISION: Proceedings dismissed.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
5033 of 1998
YOUNG CJ IN EQ
Thursday 16 August 2001
WILLIAM JOHN DERON v LYDIA DERON
Judgment
: In June 2000 I heard a contested probate suit in connection with the estate of George Deron. As a result of that suit, I granted probate in solemn form of a will dated 27 June 1997 which left the entire estate to the testator's wife, the present defendant, Lydia Deron.
2 At the same time there was in the list an application under the Family Provision Act 1982 which was made by the present plaintiff, a son of the deceased, now aged fifty-one. I commenced hearing these proceedings in Newcastle on 21 June 2000, but a problem emerged in that the plaintiff had suffered a serious accident with his employer in 1970 and he had current proceedings against the employer, plus proceedings against two firms of solicitors alleging negligence in not pursuing that claim with due diligence, so that it had become statute barred. I indicated that until I knew what the plaintiff was likely to receive from any of those actions it was very difficult to work out what was the plaintiff’s asset position and thus whether the testator should have made provision for the plaintiff under his will.
3 The matter was adjourned on the plaintiff's, then counsel's, application to 24 August 2000 on the basis that the plaintiff pay the costs of that day in any event. From 24 August to today, the matter has been mentioned approximately every two months in an endeavour to have the matter finalised and the medical evidence now shows that the ongoing case is having a deleterious effect on the defendant's health. Accordingly, today the matter has been finally heard.
4 The plaintiff today appeared in person, although he has had sitting beside him a solicitor, as a friend of the Court, kindly provided by a pro bono scheme of the Law Society.
5 Exhibit PXO1 is an assessment by counsel of the plaintiff's possible recovery of damages from any of his actions, and the gravamen of that document is that there is little chance of the plaintiff recovering anything, though counsel notes that he could have settled the case in 1996 for about $400,000 clear, but the window of opportunity is now closed.
6 Accordingly, I need to consider the plaintiff as a person who has no assets, who was injured in an accident some thirty years ago, and who has since lived on workers’ compensation, social security and assistance from his parents.
7 On the other hand, the defendant widow is a lady in her seventies and she too has limited resources. The evidence shows that her current income is only about $25,000 and that income is almost entirely derived from shops and flats at Cowper Street, Wallsend, which is the remaining asset in the estate with the exception of a property at Helen Street, Cardiff in which the plaintiff is residing. That property in Helen Street, Cardiff is owned, at least in equity, as to one moiety by the defendant personally and one moiety by the defendant as executrix of George Deron, as tenants in common. The plaintiff is living in that house rent free. The defendant says it is her intention, and will remain her intention, to devise her interest in that property to the plaintiff.
8 The affidavit material contains a considerable amount of evidence as to what the testator may have said to his children and "promises" that he may have made. At the hearing in Newcastle both counsel were fairly vigorous with their objections to that type of material and a lot of the material in the affidavits was objected to and rejected.
9 The plaintiff appears to have, at the heart of his grievance that he has not been fully provided for and that there was a house at 4 Paul Street, Cardiff which his father promised many times before his death to pass to the plaintiff or his son Jason, and that he was disappointed. That property, however, does not appear to be an asset in the estate.
10 Accordingly, we have at the moment a widow from a long marriage in her seventies with her income principally derived from the estate's major asset. The only other appreciable asset in the estate is not producing income, because the plaintiff is living in it. Then there is the matter of the promise by the defendant to pass that asset to the plaintiff on her death. The plaintiff, although without any substantial assets or income, is living rent free in a home. Further, the evidence does show that there was a gift at some stage in the past of another real estate property at Eleebana to the plaintiff's wife.
11 The testator's prime obligation was to provide for his widow. He may have made "promises" to other members of the family, but the facts are that he did not have sufficient when he died to be able to provide for everybody. His prime obligation was to the widow and what the widow in fact receives under the will would appear to be a proper provision for her in all the circumstances, but there is really nothing else left over.
12 Accordingly, the testator did not, despite the plaintiff's poverty, fail to make provision for him because he was not capable of making any further provision than that which he made for his widow.
13 It seems rather a waste of time to make any order for costs other than what I have already done, so I will merely order that the proceedings be dismissed.
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