Dunk v Public Trustee - [2003] NSWSC 37

CITATION: Dunk v Public Trustee [2003] NSWSC 37

HEARING DATE(S): 15, 16 May, 20 June, 23 July, 4 October 2002

JUDGMENT DATE:
11 February 2003

JURISDICTION:
Equity

JUDGMENT OF: Master McLaughlin

DECISION: See paragraph 63.

CATCHWORDS: Succession - Family provision - Status of Plaintiff as an eligible person - Whether Plaintiff was de facto spouse of Deceased - Matters to be considered - Deceased spent several (but not all) nights each week at residence of Plaintiff - Financial and material circumstances of Plaintiff - Competing claim of beneficiary named in will.

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999

CASES CITED: Marshall v Carruthers [2002] NSWCA 47
Roy v Sturgeon (1986) 11 NSWLR 454

PARTIES :
Mary Ellen Dunk (Plaintiff)
Public Trustee (Defendant)

FILE NUMBER(S): SC 2195/01

COUNSEL: C.A. Vindin (Plaintiff)
L.J. Ellison (Defendant)

SOLICITORS: Muggletons Solicitors (Plaintiff)
P J Whitehead, Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 11 February 2003

2195/01 MARY ELLEN DUNK -v- PUBLIC TRUSTEE

JUDGMENT

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

2 By summons filed on 12 April 2001 Mary Ellen Dunk claims an order for provision out of the estate of the late John Raymond Joseph Donnelly (to whom I shall refer as “the Deceased”).

3 The Deceased died on 1 December 1999, aged sixty-eight years (he having been born on 7 October 1931). He left a will dated 26 June 1984, probate whereof was on 9 February 2000 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased left the entirety of his estate to his brother, Barry Patrick Donnelly. (The will contained the further provision, “BUT should be predecease me then for my friend MARY ELLEN DUNK absolutely”.)

5 At the date of death of the Deceased his assets consisted of a house property situate at and known as 108 Roberts Road, Greenacre, to which an estimated value of $200,000 was ascribed, together with moneys in various bank accounts (totalling somewhat over $110,000). The inventory of property discloses a total value of the estate in an amount of almost $313,000.

6 After the death of the Deceased an amount of $83,160 was distributed to the sole beneficiary, Barry Patrick Donnelly. Subsequently all assets of the estate have been realised, and the balance of the estate held by the Defendant at the time of the commencement of the hearing was a little under $210,000. There are, however, outstanding liabilities of the estate (including certain outstanding administration costs and expenses, and a GST adjustment payable on final distribution), totalling about $500.

7 Further, it will be appreciated that in calculating the amount of the estate available for distribution, the costs of the present proceedings must be taken into consideration. The Defendant will, in any event, be entitled to his costs, which (including Counsel’s fees) are estimated to total…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunk v Public Trustee

Details

AGLC: Dunk v Public Trustee [2003] NSWSC 37
Case: [2003] NSWSC 37
Decision Date: 11 February 2003

CaseChat Overview and Summary

The dispute in Dunk v Public Trustee involved the status of the plaintiff, Dunk, as an eligible person under the Family Provision Act. The case was heard in the Supreme Court of Victoria. The plaintiff sought to challenge the validity of the deceased's will on the grounds that the will did not make adequate provision for her. The deceased had passed away, leaving the plaintiff out of the will but leaving a beneficiary who was named in the will. The legal issues before the court were whether Dunk was the de facto spouse of the deceased and, if so, whether she was entitled to a greater share of the estate than provided for in the will.

The court considered various factors in determining the status of Dunk as a de facto spouse, including the frequency with which the deceased spent nights at the residence of Dunk, the financial and material circumstances of Dunk, and the competing claim of the beneficiary named in the will. The court found that Dunk and the deceased had a de facto relationship, as the deceased spent several nights each week at Dunk's residence and they shared a home life. The court also found that Dunk's financial and material circumstances were such that she was in need of provision for her maintenance from the deceased's estate.

The court ultimately held that Dunk was entitled to a greater share of the estate than provided for in the will. The court found that the deceased had not made adequate provision for Dunk's maintenance and that she was an eligible person under the Family Provision Act. The court made orders for Dunk to receive a greater share of the estate than provided for in the will, subject to the competing claim of the beneficiary named in the will.

Orders