Furner v Public Trustee - [2002] NSWSC 473

CITATION: Furner & Anor v Public Trustee [2002] NSWSC 473

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2828/01

HEARING DATE(S): 03/05/2002

JUDGMENT DATE: 31 May 2002

PARTIES :

Trevor and Elizabether Furner v Public Trustee

JUDGMENT OF: Master Macready at 1

COUNSEL : Ms. E. Holt for plaintiffs
Mr J. Wilson for defendant

SOLICITORS: McKenzie & Co for plaintiffs
Mr P.J. Whitehead for defendant

CATCHWORDS: Family Provision. Application by two persons who were part of the household of the deceased. Small legacies given. No matter of principle.

DECISION: Paragraph 45

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 31 May 2002

2828/01 - TREVOR FURNER AND ELIZABETH FURNER v PUBLIC TRUSTEE – ESTATE OF MELBA MIDDLEBY

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Melba Middleby who died on 8 November 2000 aged 84 years. The deceased’s husband died in 1988 and she had no children. The plaintiffs, who have at times during the deceased’s life lived with her at her property in Newcastle, survived her.

2 The deceased made her last will on 7 August 1962. The defendant was appointed executor and trustee. In the events which have happened the estate was left to the deceased's husband's sister, Joan Oliver. Joan Oliver died on 24 March 2002.

3 The estate has been reduced to cash and amounts to $315,687 of which $30,000, with the consent of the plaintiffs, was distributed to Joan Oliver in January 2002. Costs have been incurred on both sides. The plaintiffs’ costs are estimated at $46,000 and those of the defendant at $23,000.

4 I will deal with some of the family history by reference to the chronology. The deceased Melba Middleby was born on 23 February 1916. Trevor Furner, one of the plaintiffs, was born on 17 October 1940. In 1954 the plaintiff Trevor Furner met the deceased and her husband Bob. At that stage Trevor Furner was 14 years of age and he came into contact with the deceased and her husband because of a mutual interest in music. Elisabeth Furner, the plaintiff, was born on 27 December 1956. In 1958 the deceased purchased a tenor saxophone for Trevor and in the following year after staying with them he returned to Sydney. Trevor's father died in 1961. Trevor married for the first time in 1963 and he separated from his wife in 1979. In 1980 he commenced a relationship with Elisabeth and they lived together in Sydney.

5 It was in 1982 that Trevor on one of his trips to see the deceased and her husband Bob introduced his new partner, Elisabeth, to them. Elisabeth and Trevor had been having a difficult financial time and after an offer by the deceased and her husband in October 1983 they moved into a cabin which is located on the deceased’s land at 19 Copeland Avenue, Tea Gardens. The cabin was separate from the main…

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.

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Details

Case: [2002] NSWSC 473
Decision Date: 31 May 2002

CaseChat Overview and Summary

The matter of Furner v Public Trustee involved two applicants who sought an order under the Family Provision Act to increase the legacies they had received from the estate of the deceased, Mr Furner. The applicants, who were not direct family members, contended that they had been part of the deceased's household and had contributed to his welfare during his lifetime. The Public Trustee opposed the application, arguing that the legacies were sufficient and that the applicants had not demonstrated any special circumstances warranting a departure from the statutory provisions. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court revolved around whether the applicants could claim a right to maintenance from the deceased's estate under the Family Provision Act, despite not being direct family members. The court had to consider the nature of the contributions made by the applicants to the deceased's household and whether these contributions were of a kind that could justify an increase in their legacies. Additionally, the court needed to determine whether the small legacies already received by the applicants were sufficient to meet their needs and whether any increase would be a matter of principle.

The court found that the applicants, although not direct family members, had been part of the deceased's household and had contributed to his welfare in various ways. However, the court concluded that the legacies already given to the applicants were sufficient to meet their needs and did not amount to a matter of principle. The court emphasised that the Family Provision Act was not intended to provide for all persons who may have had some connection with the deceased but who were not direct family members. Consequently, the court dismissed the application and found that no further order for maintenance was warranted.

Orders