Morwood v Dalgleish & Anor

[2007] NSWSC 32

CITATION:	Morwood v Dalgleish & Anor [2007] NSWSC 32
HEARING DATE(S):	29, 30, 31 January 2007
JUDGMENT DATE :	16 February 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraph 90
CATCHWORDS:	Family Provision. Application under the Family Provision Act for provision by de facto partner of deceased. Order made. No matter of principle.
PARTIES:	Ian David Morwood v Susan Margaret Dalgleish & Anor
FILE NUMBER(S):	SC 2804 of 2006
COUNSEL:	Mr P O'Loughlin for plaintiff Mr B Skinner for defendants
SOLICITORS:	Hancock Alldis & Roskov for plaintiff Djekovic Hearne & Walker for defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Friday 16 February 2007

2804 of 2006 Ian David Morwood v Susan Margaret Dalgleish and Christopher David Gingell

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Timothy Maxwell Gingell who died on 20 February 2006 aged 55 years. His brothers and sister, two of whom are the defendants in the action, survived the deceased. The plaintiff claims to have been living in a de facto relationship with the deceased at the date of death.

The last will of he deceased

2 Under the deceased’s will made on 28 October 1994, before the plaintiff and the deceased met, the defendants were appointed executors. Under his will the deceased left a legacy of $50,000 to a Mr Peter Tonkin who was a former partner of the deceased. The residue of the estate was left to the deceased’s sister and two brothers in equal shares.

Estate of the deceased

3 The deceased owned a house and a vacant block of land at Blueys Beach the total value of which is $1,900,000. He had shares worth $5,500, cash of about $280,000 a superannuation policy of $700,000, motor vehicles and personal effects. The deceased also had an interest in the estate of his father which was worth approximately $250,000. That interest has passed to the deceased's brothers and sister and has been distributed. The defendants costs are estimated at $60,000 and those of the plaintiff at $67,000.

Family History

4 The plaintiff was born on the 23 of February 1937 and is thus 69 years of age. The deceased was born on 3 November 1951. The plaintiff married his wife Tove Morwood in 1963 and they had two daughters.

5 The plaintiff and his wife had separate occupations but they both became bankrupt in September 1986. Their bankruptcies were discharged by operation of law in September 1989. The unfortunate events which led to their bankruptcies also led to the breakdown in their relationship and the plaintiff and his wife were divorced in February 1992. Thereafter the plaintiff became involved as a litigant in person in some litigation in the Federal Court in which he was unsuccessful. That concluded when the High Court refused special leave to appeal in September 1999.

6 The plaintiff and deceased first…