Hartley v Elizabeth Neri v Elizabeth - [2004] NSWSC 456

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CITATION: Hartley v Elizabeth Neri v Elizabeth [2004] NSWSC 456

HEARING DATE(S): 30/04/2004

JUDGMENT DATE:
31 May 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 68

CATCHWORDS: Family Provision. Applications by two daughters for provision. One application out of time. Time extended and legacies provided. No matters of principle.

PARTIES :
Anastasia Hartley v Freya Elizabeth
Diana Neri v Freya Elizabeth (Estate of the late Julia Mary Hartley)

FILE NUMBER(S): SC 5049 of 2001; 1555 of 2003

COUNSEL: I. Archibald for plaintiff, Diana Neri
R. Wilson for plaintiff Anastasia Hartley
L. Ellison for defendant

SOLICITORS: LLL Lawyers for plaintiff, Diana Neri
Turnbull Hill Lawyers for plaintiff Anastasia Hartley
Carters Law Firm for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Monday 31 May 2004

5049 of 2001 ANASTASIA HARTLEY v FREYA ELIZABETH
1555 of 2003 DIANA NERI v FREYA ELIZABETH (ESTATE OF THE LATE JULIA MARY HARTLEY)

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Julia Mary Hartley who died on 30 May 2000 aged 64 years. She was survived by her four children. Two of her children are the plaintiffs in the two proceedings which I have heard together with the evidence in one being evidence in the other. The defendant is a daughter of the deceased. The deceased had a son, Peter, who has been given notice of the proceedings but makes no claim.

Will of the deceased

2 The deceased made her last will on 3 April 2000 in which she appointed three of her children (one of them being the defendant) as her executors. She gave the defendant her home at 5 Park Street, Erskineville. After some other minor bequests she gave the residue of her estate to the four children equally.

Assets in the estate

3 The only assets now in the estate are the deceased’s home at 5 Park Street, Erskineville in respect of which there is an agreed value of $695,000.00. There is also a mortgage account containing $68,532.00 which can be called upon at any appropriate time.

4 Costs have been incurred to date. The costs of the defendant for both proceedings are estimated at $46,000.00. In the proceedings by Anastasia Hartley her costs are estimated at $55,000.00 and in the proceedings by Diana Neri her costs are estimated at $40,000.00 on a solicitor and client basis. This a total sum of some $141,000.00. The amount of the costs in the matter of Anastasia are substantial although documents have been tendered which suggest that a calculation of the actual costs is closer to $80,000.00. That figure also includes an uplift factor because the plaintiff’s solicitors have done the matter on a no win, no fee basis. Part of the costs have been increased as there was an earlier aborted hearing when Anastasia’s claim was put off because of the new claim recently brought by the plaintiff, Diana.

5 It is clear that if orders are made in favour of both plaintiffs, the house will have to be sold unless the defendant can borrow sufficient funds. At the moment she has given evidence that she may be able to borrow $100,000.00.

Family history

6 The deceased married married Robin Amis in England on 5 October 1962. They had three children being Diana born on 25 August 1961, Freya Elizabeth, born 30 June 1963 and Peter born 6 February 1966.

7 The deceased was divorced from Robin Amis on 9 April 1968 having separated from him in 1966. On 1 November 1969 she married Laurence Richard Hartley. Their child, Anastasia, was born in England on 23 July 1970.

8 The family moved to Dunedin in New Zealand in 1973 and back to Leicester, England in 1977. In 1978 Diana, then aged 17, left home.

9 The following year in 1979 the family moved to Perth in Western Australia with Diana remaining in England. In 1980 Freya returned to England in order to complete her schooling after which she returned to Perth, Western Australia on 8 February 1981. She left home shortly after.

10 In April 1981 Diana married Ingolf Douglas. In 1983 their daughter, Janine, was born and that same year Diana separated from her husband.

11 In 1981 Freya moved away from home. She was then eighteen years of age. In 1985 Anastasia, then aged sixteen, moved away from home. In 1986 the deceased and Laurence Hartley separated. They divorced on 15 October 1988.

12 In late 1990 or early 1991 Anastasia moved to Sydney where she lived with her mother for a few months in a unit at Chippindale. Thereafter Anastasia moved into a Housing Commission unit at Redfern with her partner Victor Barton.

13 In 1992 Diana visited Australia to see her mother. In 1993 the deceased moved into a Housing Commission unit at Waterloo. By 1995 Anastasia had obtained her own Housing Commission unit at Surry Hills and she moved to that unit. Her sister, Freya, arrived in Sydney from Perth and moved in with her mother before travelling to England.

14 In October 1995 the deceased’s mother died leaving her a reasonable sum of money which enabled her to travel to England. In 1997 she was able to purchase the property at 5 Park Street, Erskineville which is now the main asset in the estate. That property as I have said was bought in 1997 and at that time Freya returned from England and moved in with her mother. That year, Her mother, the deceased was diagnosed with cancer.

15 In 1997 Diana purchased a house in Cambridge, England for 30,000 pounds the funds for which were provided from a trust fund for her daughter.

16 During 1997 the deceased had surgery for her cancer and commenced radiation therapy and rehabilitation. In 1999 Diana visited Australia to see her mother. In June of that year Freya gave up work to care for her mother who had a hip replacement operation in November. Thereafter the deceased used a wheelchair.

17 During 2000 Diana sold her home in Cambridge and before expenses received a sum of 70,000 pounds. She brought her daughter Janine with her and visited Sydney stopping at a few places to break up the journey on the way. They returned after five weeks. This was for the express purpose of seeing her mother before she died. Diana then settled in Barcelona, Spain. At that time she had approximately 40,000 pounds left from her fund. She decided to rent a large apartment so that she could rent rooms and earn an income.

18 The will of the deceased was made on 3 April 2000 and she died on 30 May 2000. Anastasia’s summons was filed on 15 October 2001 within the time limited by the Act. Anastasia’s son, Arwyn, was born on 1 April 2002. Shortly before his birth she separated from her long time partner, Victor Barton, although they still remain friends and he continues to care for his son.

19 In June 2002 Diana Neri injured her back when she got out of a taxi in Barcelona. This led to extensive problems to which I will return later in the judgment. Probate was granted on 29 August 2002 and the summons by Diana Neri was filed on 21 February 2003, some fifteen months out of time. On 25 February 2003 as a result of the filing of Diana’s summons the hearing date for the proceedings by Anastasia was vacated.

20 The proceedings were commenced before me on 12 May 2004. At that stage Anastasia was 34 years, Diana 42 years, Freya 41 years and Peter 38 years.

Extension of time

21 As the application is out of time it is necessary for the court to consider section 16 of the Family Provision Act, which allows an application to be made notwithstanding the fact that it is out of time. There are a number of cases that refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VLR 212 the following was said:

“It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time.”

22 His Honour Young J has in several cases dealt with the principles governing an application to extend time under the Act. In Massie v Laundry (Unreported, NSWSC, 7 February 1986), Young J indicated that the factors which one looks at, include the following:-

23 Young J also apparently accepts a view expressed by his Honour Needham J in Fancett v Ware (Unreported, NSWSC, 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (Unreported, NSWSC, 31 March 1988) Powell J, when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW) must demonstrate not merely a reasonable prospect, but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (Unreported, NSWSC, 8 September 1989).

24 In De Winter v Johnston (Unreported, NSWCA, 23 August 1995) his Honour Powell J referred to this matter and in particular to the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said [at page 23]:

“In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief.”

25 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

26 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of “unconscionable”. He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments as follows:-

“Unconscionable conduct in this context, of course, relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period.”

27 With regard to the Master’s comments, His Honour observed:

“…with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is here directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case.”

28 I now turn to the reasons for Diana making her claim out of time. Prior to her death, the deceased had indicated to Diana she would not favour any of her children over the others. At this time the deceased made some statements to Diana which suggested that Freya, who had been looking after her, should have a year in the house before it could be sold and shared equally between the four children. These conversations up until 1999 are consistent with the situation as it existed before April 2000 when the deceased changed her will.

29 In May 2000 Diana came to Sydney to see her mother before she died. After her death she became aware of the terms of the will. She then returned to Barcelona and in due course, shortly after 15 October 2001, she found out that her sister, Anastasia, had commenced proceedings. There is correspondence between Diana and Freya over the next year or so and it is plain from that correspondence that Diana did not know there was a time limit for making a claim. In cross-examination nothing to the contrary was suggested to Diana. Before the time for making the application expired, on 14 November 2001 Diana wrote to her three siblings in these terms:-

“Dear Freya, Peter and Ana,

I know we’ve all been upset by the feelings provoked by mums will, and I've tried very hard to stay out of it and to try to believe that she had a right to change her mind at the last minute, and because of this I would leave it alone and hope that we might find some healing as a family. I feel very strongly however that if the will is broken, then we should each receive equal shares, as mum promised and indeed stated in her first will.

I can almost see her reasoning that keeping the house intact as a family place could have value, but I can’t see that being very useful to me or to Ana, or even to Peter In the long run.

If however it is to be divided it cannot be measured against what we have already achieved or not achieved in our own lives, made hard as our lives have been by the spectres of depression, childhood abuses and abandonment. We all ‘deserve’ equally, if we are looking at deserving, and we all ‘need’ equally if we are looking at needing. We are all Julias children, and it is a shame that we have become divided again, and will be a shame if we are further divided by making value judgements about each other.

My exact financial position, just to clear things up which seem to be confusing you, is that I live in a rented flat, with no current employment; in fact with no licence yet to work in this country, and I have sufficient money in my bank, after my trip to see you all last year and my move here, for another 6 months. The equity I realised when I sold the house in England I had earned in 10 years working very hard, as a disabled single mother. I really don’t believe that this should disqualify me from any sharing there may be.

30 That letter plainly signalled Diana’s intention that she wished to share in the estate as a result of Anastasia making a claim. Surprisingly it took another ten months for her to receive a formal Part 77 notice.

31 As she made perfectly plain in the witness box, what prompted further action on Diana’s part was the change to her health and thus her financial circumstances. This change occurred in June 2002. In August of that year she received notice under Part 77. It was then necessary for her to find solicitors who would take on her case and it was difficult for her to do this. Eventually she located a solicitor and no doubt she was then informed of the time limit. Although there is not a detailed explanation of the delay between August 2002 and February 2003 it is clear that the plaintiff had difficulty obtaining lawyers, and no doubt because she was living in Barcelona, it would be difficult to get complete instructions and commence proceedings promptly.

32 Clearly the plaintiff, Diana, did not know of the time limit. The other matter to consider is her change of mind after the period had expired.

33 The factual reason, namely, her accident, and the subsequent enormous difficulties that that caused to her are not in dispute. The effect of her back problems has been considerable and she has been unable to earn an income which she would normally obtain by doing tailoring work at home. Her only income since her injuries has been from renting out her two spare rooms in her rented apartment.

34 There are a number of cases where a change of heart has been held not to be a sufficient reason. In Re Lauer (1984) VR 180 it was held that the mere fact that the applicant’s financial position had deteriorated cannot of itself be a ground for granting an extension of time under the Act, nor could the mere fact that the value of the estate had been inflated beyond what might have been expected at the date of the testator’s death be such a ground.

35 Re Lauer was followed by Young J in Bearns v Bearns-Hayes (Unreported, NSWSC, 6 May 1997). In that case for a period of two years until late 1994 the plaintiff had no intention of making a claim as she had assurances from her family that her position with her home was secure and she had sufficient income. In late 1994 arguments broke out in the family as a result of which the plaintiff felt abandoned by her family and that she could not rely on the loose arrangements previously in place. His Honour found that this was not a sufficient reason.

36 I dealt with a similar problem in Zirkler v McKinnon [2002] NSWSC 285 which was a particularly bad example of conduct by a person who had full knowledge of her rights making a deliberate decision to delay making a claim which worked to the detriment of the other parties.

37 This case is far from that situation. The plaintiff’s cross-examination and her decision to bring a claim was as follows:

Q. When you knew that Anastasia was making a claim you knew at that time that you could also make a claim, correct?

A. No. At that time I had no reason to make a claim because I had no - I had no eligible needs.

Q. Did you decide to make a claim only when your needs became more serious?

A. Yes, absolutely.

Q. And those needs in particular are your financial and other circumstances following upon your back injury. Correct?

Q. You hurt your back in June 2002, is that correct?

Q. It was after that time you decided to bring a claim, correct?

A. Yes, it was after that time.

Q. Was it some time after that time that you decided to bring a claim?

A. Yes. The letter said something to the effect that Anna was making a claim and if I wished to be taken into account during the proceedings, that I should find legal support or that I should make sure that I went ahead, but otherwise I wouldn't have an opportunity.

Q. You got that form - we have the correspondence – in August 2002 and is it your evidence that up until that time you were content to let the will go with just Anastasia making her challenge?

A. In actual fact up to that time I believed what Freya told me, that she was willing to sell the house and divide it up. When you sent me a notification I realised she couldn't make a decision like this because Anna was making a claim too. At that point my needs were extreme and I decided to make a claim also.

A. Absolutely.

38 It is plain that the plaintiff made a decision in August 2002 to make a claim. There is no suggestion that she had previously made a decision not to make a claim and then changed her mind. The fact was that throughout the relevant period she did not know of the existence of any time limit and thus did not have to form any opinion on the matter. Indeed, as the letter I have referred to earlier makes plain, once Anastasia made a claim, Diana signalled a clear intention that she should share in the estate.

39 In these circumstances I am satisfied that there is an adequate explanation and that time should be extended.

Eligibility

40 It clear that both plaintiffs are eligible persons. Notice of the proceedings was also given to Peter, the son of the deceased. Under the will he received a quarter share of residue. Until recently he had been living in the property with his sister but he left partly as result of his problems and partly as a result of the difficulty he had living with the defendant who had been suffering from depression. Apart from some reference to his difficulty with drugs there is no information as to his circumstances. He filed an affidavit, which was read, in which he said that he wanted the will upheld and hoped that he would be able to stay in the house. In any event he has not made a claim.

41 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two stage approach that a Court must take. At pages 209-210 it said the following:

“The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

The situation in life of Anastasia Hartley

42 Anastasia is 33 years of age and has a 2 year old son, Arwyn. She has the sole care of her son and receives almost no support in monetary terms from the child’s father. She receives a disability pension of $635.26 per fortnight and she finds it extremely difficult survive on that amount of money. At the end of the fortnight she frequently finds herself at the stage where she cannot afford the child’s nappies. At that stage, the child’s father, Victor Barton, occasionally lends her $10.00 or $20.00 to tide her over. She lives in a one bedroom Housing Commission unit at Waterloo and her rent is $124.70 per fortnight. She has outstanding debts of $3,877.00 and apart from some personal items she has virtually no assets. She does not own a car and one of her debts is an amount owing to the State Debt Recovery Office for traffic fines which she is paying off by instalments.

43 Anastasia suffers from depression and has done so for approximately two and half years. She is undergoing treatment but she needs far more support. She had an opiate dependency in the past but has been on a methodone programme at the Langton Centre since February 2001. Their report suggests that she is committed to the programme.

44 It is clear that the plaintiff, Anastasia, had regular contact with her mother throughout her life and there is nothing to suggest that her relationship with her mother was other than good. The same comment applies for all the children in this case. Anastasia has not contributed to the building up of the estate which came as a result of her mother’s inheritance.

45 It is necessary to see how Anastasia says she has been left without adequate and proper provision for her maintenance, education and advancement in life.

46 It is obvious she is in a difficult position as she is living alone with her two year old son in a one bedroom unit which is far too small for both of them. She appears to be slowly changing her life as she completed a TAFE course and has a obtained a certificate of Attainment in Manufacturing and Engineering – Training Programme. She is enrolled in a Diploma in Environmental Studies at TAFE and would like to work in that field but she has another 18 months left of study. She herself felt that she has been able to improve over the last eighteen months or so particularly since the separation from her partner and as a result of her being responsible for her child.

47 In her affidavit sworn 7 May 2004 Anastasia articulated the following areas where she would like support.

48 This is a total of $53,900.00. Although some of the quotations for whitegoods seem excessive all these needs are real needs as she does not have appropriate goods and she certainly requires further counselling and medical support. Whether or not she will be able to afford to maintain a car is questionable but she can probably obtain an appropriate car for less than $25,000.00.

49 The more difficult part of her claim concerns her request that she be provided with funds in order to obtain a two bedroom unit. She is on a waiting list for two bedroom units in three inner city suburbs in which the Housing Commission provides such accommodation. At this stage it may well be somewhere between two and a half and six years before she obtains such accommodation. She has been looking to try to find a cheap two bedroom unit and to do so she would need to move to Minto where apparently such a unit is available at a price of $155,000.00. It was suggested in argument that this inappropriate because she would move away from her current support. Although it may be difficult she does not seem to be particularly concerned about this and she struck me as genuine in her desire to try and relocate if that were possible.

Situation in life of Diana Neri

50 Diana Neri is aged 42, she is single and has no dependents. Her daughter lives in England and visits her from time to time. Her only source of income is the rent she receives from the two rooms in her rented apartment. Over the last two years she has earned approximately 493 Euros per month from that activity. Clearly she is falling behind as she had to borrow extensively and she is currently three months behind with the rent. She pays 660.35 Euros per month for her apartment and is having difficulty maintaining the gas, water and electricity services to her apartment.

51 I have earlier referred to her injury to back in June 2002. This has been exacerbated due to a recent fall on 12 March 2004. She is now back to a level of pain that she had before the two operations on her back in 2002 and 2003. The pain she suffers from means that she has to spend a substantial time each day in bed. She takes medication including Bupromorphine to treat the pain. It is difficult for her to walk and she loses control of her feet and all sensation in her feet and legs. There was evidence from her treating doctor who referred to her two operations, which resulted in the removal of her herniated disc in her back. He described her as presenting with an important disability requiring the help of a walking stick to walk and that the pain in her back and going down to her legs varies in intensity from moderate to severe despite medication. The doctor described her condition as serious believing the damage in her lumbar nerve region is likely to be permanent. He expressed fears that she would become disabled for working purposes and that she had difficulty remaining standing for any periods of time. He referred to her medical expenses as costing 50 to 80 Euros a month and that she suffers from a depressive anxious condition as a reaction to her condition. Her ultimate future obviously depends upon further investigation of the plaintiff using further MRI scans in June this year.

52 It is necessary to see how Diana says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. These matters are obviously concerned with recovering from her present precarious financial position and getting medical treatment in the future while she recovers, if that is possible.

53 Diana articulated the following urgent needs in her affidavit sworn 2 April 2004 the amounts being expressed in Euros. The parties agreed for the purpose of this case that one Australian dollar would be the equivalent of .58 Euros.

2,000

51,966

54 Diana also articulated an alternative claim to continuing in her present rented apartment by purchasing an apartment for some 60,000 Euros.

The situation in life of Freya Elizabeth

55 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case the only other person who should be considered is the defendant, Freya Elizabeth. Freya is 40 years old, she is single and unemployed. In July 2003 she suffered a nervous breakdown and had to take sick leave from her job at Sydney University. Eventually while she was still ill she had to resign on 17 November 2003. In the past she had been diagnosed as suffering depression. On a recent occasion when she became depressed she suffered severe anxiety and panic attacks and was diagnosed with adjustment disorder with anxiety and depression. In the past she has also suffered from post viral chronic fatigue syndrome which stopped her working for a while until 1997. After 1997 she obtained casual work as graphic designer and continued with this employment until June 1999 when she stopped work in order to look after her mother who was then quite sick. In 1997 she moved in to live with her mother and she has lived in the deceased’s home ever since. She has no assets of any substance and she has debts of $12,097.00 as well as another debt which is disputed for recent hospital treatment of $8,093.00. She receives a pension of $389.00 per fortnight which is her only income. She began doing some voluntary work for two hours a week but she will obviously need substantial rehabilitation time before she will be able to return to employment.

56 Freya was of great assistance to her mother prior to her mother’s death and she took time off work for the year before her mother’s death to assist and look after her. Like her other siblings she has not contributed to the estate of the deceased.

Discussion

57 This is a case where all three children who have to be considered are in need. Freya is the eldest and probably is in a slightly better situation than her two sisters although this is doubtful. She had the benefit of living in the house with her mother over recent years but there is nothing in her circumstances, other than the care for her mother, which would suggest that she should receive the house outright. At the present time she has a limited borrowing capacity and if the house is to be sold she may well have to move out and consider renting rather than the purchase of a house.

58 Diana has substantial needs as a result of her recent illness and unless this is addressed she will be dispossessed from her flat and will be homeless in a situation where she has extreme pain and difficulty with mobility. It was suggested that in respect of Diana, that at the date of the death of the deceased she had a sum of some 40,000 pounds available to her and she chose to rent property rather than invest that sum. It seems to me that the appropriate time to consider her situation in the absence of any proof of her being a spendthrift or deliberately disposing of her assets is at the date of the hearing. No doubt she has made the best of her life given her circumstances.

59 Anastasia has the responsibility for her son and she is at the early stage of the slow road to recovery from her former drug habit. Fortunately the signs at this stage are favourable.

60 The submissions on Anastasia’s behalf were that she receive a legacy of $220,000.00 to cover her debts and the purchase of a property at Minto.

61 Diana’s claim was quantified as an amount sufficient to discharge her liabilities and to provide some contingency in a sum of approximately $20,000.00 to make a total of $110,000.00. If legacies claimed by the plaintiffs and costs were paid out of the sale of the house, there would be a sum of approximately $224,000.00 left after the sale plus residue of $68,532.00 in the estate.

62 In Shearer v Public Trustee; Hawke v Public Trustee, (Unreported, NSWSC, 23 March 1998), Young J (as he then was) said:

“The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligation to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own.”

63 In Anastasia’s case there are some difference circumstances. Her present circumstances are a result of a drug dependency and depression. She faces a very difficult time bringing up a young child in what is clearly inadequate public housing and she has no prospect in the immediate future of obtaining suitable accommodation.

64 Anastasia’s two sisters also have needs for accommodation but they do not have a child to support. Diana has chosen to rent in the past and she has an appropriate apartment. Freya will receive support to rent an appropriate residence until she returns to the workforce when she can then decide whether to buy a property with her funds.

65 The amount claimed by Anastasia for a house is modest and provided it is used for this purpose it is an appropriate claim.

66 It is necessary to consider whether it is appropriate that the plaintiff, Anastasia, should be provided with sufficient funds to allow her to purchase a house.

67 It is to be noted that Peter has made no claim and the submissions before me were to the effect that it would be appropriate that any order for provision for the plaintiffs and payment of costs should be out of the proceeds of the sale of the house in order to preserve Peter’s entitlement to the share and residue. It seems appropriate that this approach should be adopted. Accordingly, I will order that Peter receives a legacy equal to one quarter of the residue so that his entitlement will not be affected by any costs’ orders.

68 I make the following orders:

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Last Modified: 06/07/2004

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Citations

Hartley v Elizabeth Neri v Elizabeth [2004] NSWSC 456

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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Zirkler v McKinnon [2002] NSWSC 285

Singer v Berghouse [1994] HCA 40

CITATION:	Hartley v Elizabeth Neri v Elizabeth [2004] NSWSC 456
HEARING DATE(S):	30/04/2004
JUDGMENT DATE:	31 May 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 68
CATCHWORDS:	Family Provision. Applications by two daughters for provision. One application out of time. Time extended and legacies provided. No matters of principle.
PARTIES :	Anastasia Hartley v Freya Elizabeth Diana Neri v Freya Elizabeth (Estate of the late Julia Mary Hartley)
FILE NUMBER(S):	SC 5049 of 2001; 1555 of 2003
COUNSEL:	I. Archibald for plaintiff, Diana Neri R. Wilson for plaintiff Anastasia Hartley L. Ellison for defendant
SOLICITORS:	LLL Lawyers for plaintiff, Diana Neri Turnbull Hill Lawyers for plaintiff Anastasia Hartley Carters Law Firm for defendant