Dunn v McCarthy

[2010] NSWSC 675

CITATION:	Dunn v McCarthy [2010] NSWSC 675
HEARING DATE(S):	21/06/2010
JUDGMENT DATE :	7 July 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
DECISION:	1.In lieu of the legacy of $30,000 in favour of the plaintiff contained in the will of the late Frederick Milton Gear dated 20 February 2008, the plaintiff will receive a legacy in the sum of $160,000. 2. Interest to be paid on the balance of such legacy if it is not paid within three months from today’s date and if not so paid, to bear interest at the rate prescribed for under the Probate and Administration Act 1898. 3.That the plaintiff’s costs to be paid on the ordinary basis and the defendant’s costs on an indemnity basis be paid or retained from the estate of the deceased.
CATCHWORDS:	Family Provision. Application by stepson given modest legacy. Legacy increased. No matter of principle.
PARTIES:	James Nevill Dunn v Maurice John McCarthy
FILE NUMBER(S):	SC 2009/00289184
COUNSEL:	Mr RE Quickenden for plaintiff Mr A Martin for defendant
SOLICITORS:	JJ Lees and Associates for plaintiff Brazel Moore Lawyers for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Wednesday 7 July 2010

2009/3009 Dunn v McCarthy (Estate of the late Frederick Milton Gear)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Frederick Milton Gear who died on 30 March 2008, aged 86 years. The deceased was a widower who was survived by the plaintiff, James Neville Dunn, the deceased’s stepson and an adopted son, Keith Milton Gear. The deceased was also survived by Noelene Kay Tame, a close friend during the last years of his life.

2 The deceased made his last will on 20 February 2008 and provided legacies in the sum of $30,000 to each of the following:

Keith Milton Gear (son);

Joanne Cadby (plaintiff’s daughter and deceased’s granddaughter);

James Dunn (step son).

3 He left the residue to his friend, Noelene Tame.

Estate of the deceased

4 The assets in the estate have been received and the three legacies totalling $90,000 have been paid as well as the funeral expenses.

5 The present assets in the estate are as follows:

Deceased’s home at 17 Brisbane Street, Noraville $340,000
Funds in Solicitor Trust Account $ 55,914
820 Commonwealth Bank shares $ 43,164
$439,078

6 The plaintiff’s costs are estimated at $40,000 and the costs of the defendant which remain to be paid out of the estate are estimated at $16,000. This leaves $383,078 less the expenses of sale of the home.

Family history

7 The deceased was born in 1922. His friend in later life, Noelene Tame, was born in 1927.

8 The plaintiff was born in 1943. His mother purchased a property at Manly Vale in 1947. She first met the deceased in 1958 and at that stage they were both single.

9 The deceased operated a trucking business at Goulburn…