Hardman v NSW Trustee and Guardian - [2010] NSWSC 500

CITATION: Hardman v NSW Trustee & Guardian [2010] NSWSC 500

HEARING DATE(S): 18 and 19 May 2010

JUDGMENT DATE :
21 May 2010

JUDGMENT OF: Ball J

DECISION: Application dismissed.
No order as to costs.

CATCHWORDS: SUCCESSION - Testamentary agreements - constructive trusts - whether Plaintiff suffered detriment by not making Testator's Family Maintenance claim DEEDS - Interpretation - requirements for execution FAMILY PROVISION - Testator's Family Maintenance Act - extension of time - whether adequate provision made for the Plaintiff

LEGISLATION CITED: Conveyancing Act 1919
Testator's Family Maintenance & Guardianship of Infants Act 1912

CATEGORY: Principal judgment

CASES CITED: Lady Nass v Westminster Bank Limited [1940] AC 366
The Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642
Vukic v Luca Grbin [2006] NSWSC 41

PARTIES: Elaine Hardman (Plaintiff)
NSW Trustee & Guardian

FILE NUMBER(S): SC 2010/38161

COUNSEL: M Lawson (Plaintiff)
D Eardley (Plaintiff)
A Hill (Defendant)

SOLICITORS: G&D Lawyers (Plaintiff)
Gordon A Salier (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

21 MAY 2010

2010/38161 ELAINE HARDMAN v NSW TRUSTEE & GUARDIAN

JUDGMENT

1 HIS HONOUR: In these proceedings the Plaintiff essentially seeks orders the effect of which would be to give her the benefit of the proceeds of sale of a house in Roseville (“the Property”) which was originally owned by her father, which passed to her stepmother on his death and which has now passed to the Crown as bona vacantia.

2 William Charles Merrett, the Plaintiff’s father, and Mary Isabel Merrett, the Plaintiff’s mother, purchased the Property in 1920. The Plaintiff was born two years later. She was an only child.

3 In 1947, the Plaintiff married David Philip Hardman at which time she moved out of the family home.

4 The Plaintiff’s mother died in 1952. Following her death her Estate passed to the Plaintiff’s father in its entirety.

5 In 1954, the Plaintiff’s father married Gladys May Tinker – who I have and will continue to refer to as the Plaintiff’s stepmother. At the time of that marriage, the Plaintiff’s father was 58 years old and her stepmother was 31 years old. The evidence suggests that the Plaintiff enjoyed good relations with her stepmother.

6 In 1967 the Plaintiff’s father made his Will. He left the Property to his wife and, in the event that she predeceased him, to the Plaintiff.

7 The Plaintiff, who was not cross-examined, gave evidence that at about the time her father made his Will he said to her words to the effect of “I am going to will the estate to Gladys. She has promised that she will leave the estate to you”.

8 The Plaintiff’s father died in 1971. Under the terms of his Will, he left the Property to his wife or, if she should predecease him, to the Plaintiff. He left a Gulbransen Pianola to the Plaintiff. He left the balance of his estate (after deducting…

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: [2010] NSWSC 500
Decision Date: 21 May 2010

CaseChat Overview and Summary

The plaintiff, Hardman, sought to enforce a testamentary agreement made with the deceased, who was her father, against the NSW Trustee and Guardian. The agreement provided that Hardman would receive $50,000 upon the deceased's death. The deceased had also made a family maintenance claim under the Testator's Family Maintenance Act 1958 (NSW) in favour of Hardman's half-sister. The plaintiff argued that she had suffered a detriment by not making a claim under the Act herself, which should give her an entitlement to an additional amount under the agreement. The court had to determine whether Hardman's failure to make a family maintenance claim constituted a detriment for the purposes of the agreement and whether the court should extend the time for making a family maintenance claim under the Act.
The court held that Hardman had not suffered a detriment by not making a family maintenance claim herself, as she had received the benefit of the deceased's claim in favour of her half-sister. The court also held that the requirements for executing a testamentary agreement were not met, as the agreement was not in writing and signed by both parties. However, the court found that a constructive trust should be imposed on the deceased's estate in favour of Hardman, as she had relied to her detriment on the promise made in the agreement. The court also held that the Plaintiff had made an adequate claim under the Testator's Family Maintenance Act, as the deceased had made a claim in her favour, and therefore no extension of time was required.
The court ordered that the deceased's estate be held on constructive trust for Hardman, and that the Trustee pay her $50,000. The court also ordered that the claim for an extension of time under the Testator's Family Maintenance Act be dismissed.

Orders