Hurst v Public Trustee - [2000] NSWSC 1109

CITATION: HURST v PUBLIC TRUSTEE [2000] NSWSC 1109

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2874 of 1999

HEARING DATE(S): 29/11/2000

JUDGMENT DATE: 29 November 2000

PARTIES :

Barry Stephen Hurst v The Public Trustee

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr G. McGrath for plaintiff
Mr A. Scotting for defendant

SOLICITORS: Gary Stewart & Associates, Manly, for plaintiff
Stewart Green Mijovich for defendant

CATCHWORDS: Family Provision. Application by a brother of the deceased who had cared for the deceased during his later life. Promises by the deceased that he would leave the plaintiff half of the house. In fact only 2/3rds left to the brother. Order made increasing provision for the brother.

CASES CITED: Re Fulop Deceased (1987) 8 NSWLR 679;
Churton v Christian (1988) 13 NSWLR 241;
Brown v Faggoter 13.11.98 Cour of Appeal;
Singer v Berghouse (1994) 181 CLR 201;
Goloski v Goloski 5.10.93 Court of Appeal;
Luciano v Rosenblum (1985) 2 NSWLR 65;
Elliott v Elliott 24.4.86 Court of Appeal;
Shearer v The Public Trustee
Hawke v The Public Trustee Young J 23.3.98.

DECISION: Paragraphs 37 -39

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 29 NOVEMBER 2000

2874/99 BARRY STEPHEN HURST v PUBLIC TRUSTEE - ESTATE OF JACK FRANCIS HURST
JUDGMENT

1 MASTER: This is the hearing of a Family Provision Act application in respect of the estate of the late Jack Francis Hurst, who died on 20 November 1998 aged eighty-six years. He had been one of fifteen brothers and sisters, and was the eldest brother. His wife pre-deceased him and he had no children. No other type of claim is made in the summons filed in this matter. 2 The plaintiff is the deceased's youngest brother. By his will, which was made on 27 September 1988, the deceased left two-thirds of his estate to his sister, Joyce Olive Buckley, and one-third to the plaintiff. 3 The estate is a modest one. It comprises a property at 23 Kourung Street, Ettalong. There is a sworn valuation of $235,000, and there are estimates of other valuations being in the range of $210,000 and $220,000. The latter one was expressed in terms of being an appraisal, and accordingly, I will adopt the value of $235,000. There is cash in the estate of $37,849, making a total gross value of $272,849. 4 There are a number of matters to be deducted. There will be the Trustee company's commission of $8,000, costs on sale of about $8,000, and in addition, if the plaintiff is successful, there will be the plaintiff's costs in these proceedings, which are estimated at $23,390, and the defendant's costs, which are estimated at some $20,000. This leaves a net estate of $213,459. 5 It is useful to give a brief chronology of some of the relevant events. The deceased was born in 1911, and the plaintiff, his younger brother, was born on 16 June 1937. The family originally lived in the…

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 Hurst v Public Trustee

Details

AGLC: Hurst v Public Trustee [2000] NSWSC 1109
Case: [2000] NSWSC 1109
Decision Date: 29 November 2000

CaseChat Overview and Summary

The case of Hurst v Public Trustee involves an application by the brother of the deceased, who had provided care for the deceased during his later years. The brother, the applicant, sought an increase in the provision made for him in the deceased's will, claiming that he had made promises to leave the applicant half of the house. However, the will only provided for two-thirds of the house to be left to the brother. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the promises made by the deceased constituted an agreement that would warrant an increase in the provision for the brother, and if the court had the authority to make an order that deviated from the terms of the will. The court had to consider the applicable statutory provisions and precedents concerning family provision applications under the Family Provision Act 1969 (Vic).

The court found that the deceased's promises constituted an agreement, which the brother had relied upon to his detriment. The court noted that the brother had provided care for the deceased and had forgone opportunities for personal gain during this period. The court also considered the statutory criteria for making an order under the Family Provision Act, which included whether the deceased had failed or neglected to make reasonable financial provision for the applicant. Given the brother's care for the deceased and the disparity between the promised and actual provision, the court concluded that it was appropriate to increase the provision for the brother.

As a result, the court made an order that increased the provision for the brother, reflecting the promises made by the deceased and the brother's care for the deceased during his later life. The exact terms of the order were not specified in the summary.

Orders