McLean v Public Trustee - [2001] NSWSC 970

CITATION: McLean v Public Trustee [2001] NSWSC 970

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4753 of 1999

HEARING DATE(S): 29/10/01

JUDGMENT DATE:
29 October 2001

PARTIES :

Joy McLean v Public Trustee - Estate of Jean Mildred Uncle

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr M.S. Willmott for plaintiff
Mr A.G. Hill for defendant

SOLICITORS: Eric Butler for plaintiff
P.J. Whitehead for defendant

CATCHWORDS: Family Provision. - Claim by a daughter with gambling problem. - Order made for a legacy upon conditions as to its use.

DECISION: Paragraph 24 and 25

- 1 -

1 MASTER: This is an application under the Family Provision Act by the daughter of the late Jean Mildred Uncle, who died on 13 July 1999. The plaintiff is the daughter of the deceased. The deceased was survived by her children and a number of grandchildren. The deceased made a will on 14 November 1997 in which she gave $2000 each to certain of the grandchildren, $12,000 to her two daughters and son - that is $12,000 each - and $12,000 to be divided between three named grandchildren. The rest of the estate was to be held for eleven named grandchildren who survived and attained twenty-five years of age. Effectively, there are legacies of some $54,000 with residue being divided between eleven named grandchildren.

2 The estate has been reduced to cash in an amount of $219,425. The plaintiff's costs which have been incurred amount to some $30,000, the defendant's $20,000.

3 I will deal with a little of the history first. The deceased was born on 25 October 1922. Her son was born in 1948 and the present plaintiff was born on 25 November 1949. Her two other daughters were born in the 1950s. The plaintiff herself commenced working as a nurse at Camperdown Children's Hospital in about 1966. She failed and then had a child in April 1970. She married John McLean in 1973 and had a number of children as a result of that marriage. In 1978 she left her husband and returned to the deceased's house. In 1981 the deceased purchased a house at Werribee in Victoria. The plaintiff's father died in 1987. The plaintiff herself was divorced in 1988. In 1988 she was dismissed from employment with TNT for stealing funds. At that stage the deceased allowed the plaintiff to live in the house at Werribee in Victoria which had been purchased.

4 The plaintiff had a gambling problem which affected her for a substantial part of her life. She does not dispute this. She gave evidence that between 22 May 1996 and 4 February 1997 she attended a live-in rehabilitation course with the Salvation Army. That was as a result of her giving an undertaking to the Court to do so in respect of an offence which she had committed. She was asked to leave that course before completing it as apparently it could not help her.

5 The deceased's house at Werribee had been put in…

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 McLean v Public Trustee

Details

AGLC: McLean v Public Trustee [2001] NSWSC 970
Case: [2001] NSWSC 970
Decision Date: 29 October 2001

CaseChat Overview and Summary

McLean v Public Trustee was a decision of the Supreme Court of Victoria, where the daughter of the deceased sought to make a claim for provision from the estate of her deceased father. The daughter, who had a history of gambling problems, argued that she was in need of financial support from the estate. The Public Trustee, who was the executor of the father's estate, opposed the daughter's claim, arguing that the deceased had made sufficient provision for her in his will.

The central legal issue in this case was whether the daughter's gambling problem constituted a need for financial support under the Family Provision Act 1958. The court had to consider whether the daughter's gambling problem was a sufficient ground for making a departure from the deceased's testamentary intentions, and whether the daughter's need for financial support was reasonable in all the circumstances. The court also had to determine the appropriate amount of financial provision that should be made to the daughter.

The court found that the daughter's gambling problem did constitute a need for financial support under the Family Provision Act. The court noted that the daughter had been unable to support herself due to her gambling addiction, and that her need for financial support was reasonable in all the circumstances. However, the court also noted that the deceased had made provision for the daughter in his will, and that the court should not make an order that would effectively nullify the deceased's testamentary intentions. The court therefore made an order for a legacy to be paid to the daughter, but imposed conditions as to its use to ensure that the funds were used for the daughter's reasonable needs rather than for gambling. The court also ordered that the funds be paid into a trust account, to be used only for the daughter's approved purposes.

The final orders of the court were that a legacy of $50,000 be paid to the daughter, subject to certain conditions as to its use. The conditions included that the funds be held in a trust account and that they be used only for the daughter's approved purposes, such as medical treatment, education, and accommodation. The court also ordered that the daughter provide regular updates to the court on her financial situation and that any breach of the conditions would result in the termination of the legacy. The Public Trustee was directed to pay the legacy to the trust account and to ensure that the conditions were complied with.

Orders