Mulhall v Permanent Trustee - [2004] NSWSC 365

CITATION: Mulhall v Permanent Trustee [2004] NSWSC 365

HEARING DATE(S): 21 April 2004

JUDGMENT DATE:
22 April 2004

JURISDICTION:
Equity

JUDGMENT OF: Master Macready at 1

DECISION: See paragraph 48

CATCHWORDS: Family provision -- Application of adult daughter of deceased -- Estate left to long term friend of the deceased -- Limited relationship between the plaintiff and the deceased -- Legacy ordered for the plaintiff out of the estate of the deceased

LEGISLATION CITED: Family Provision Act 1982 (NSW)

CASES CITED: Benney v Jones (1991) 23 NSWLR 559
Gorton v Parks (1989) 17 NSWLR 1
Hughes v Hughes (unreported 6 June 1989)
Neil v Nott (1994) 68 ALJR 509
Pontifical Society for the Propogation of Faith v Scales (Scales Case) (1962) 107 CLR 9
Re Allardice (1910) 29
Singer v Berghouse (1994) 181 CLR 201
Walker v Walker (unreported 17 May 1996)

PARTIES :
Maria Antoinette Mulhall
v
Permanent Trustee Co Limited - Estate of James William Courtney

FILE NUMBER(S): SC 5844/02

COUNSEL: L Ellison - Plaintiff
P Blackburn-Hart - Defendant

SOLICITORS: Patrick Timbs & Company Solicitors - Plaintiff
Bartier Perry - Defendant

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 22 APRIL 2004

5844/02 - MARIA ANTOINETTE MULHALL v PERMANENT TRUSTEE CO LIMITED - ESTATE OF JAMES WILLIAM COURTNEY

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late James William Courtney who died on 24 April 2002 aged eighty-two years. He is survived by the plaintiff, his daughter, and Patricia Henrietta Hurman, a lady with whom the deceased had a relationship for a period of about forty-two years.

The will of the deceased

2 The last will of the deceased was made on 22 October 1996. That provided for the whole of his estate to go to Ms Hurman whom he described as a long term friend and lover. He appointed the Permanent Trustee as executor.

3 He also at the same time executed a Statement of Reasons which was addressed to the Permanent Trustee in the following terms:

“I have appointed your company as executor in my will.

In my will I have bequeathed my estate to my dear companion and lover of approximately thirty-five years, Patricia Henrietta Hurman.

Prior to my relationship with Pat Hurman, I was briefly married for about 3-4 years during the early 1940s. I was divorced during or about 1946.

During my marriage, one female child was born in 1941, Antoinette Maria Courtney. Following the separation from my former wife, I attempted to provide some care for my child, however, because the nature of the relationship with my former spouse, all contact with the child ceased in 1948. In 1967, a property settlement with my former wife was reached.

I have had no contact whatsoever with the child of my former marriage. There has been no attempt by her to contact me, nor has there been any attempt by me. I do not know of her whereabouts or…

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 Mulhall v Permanent Trustee

Details

AGLC: Mulhall v Permanent Trustee [2004] NSWSC 365
Case: [2004] NSWSC 365
Decision Date: 22 April 2004

CaseChat Overview and Summary

In the case of Mulhall v Permanent Trustee, the plaintiff, a daughter of the deceased, applied to the court seeking financial provision from the estate of her father, who had left the bulk of his estate to his long-term friend rather than his immediate family. The relationship between the deceased and the plaintiff had been strained, with little contact for many years prior to the deceased's death. The plaintiff argued that the deceased's decision to disinherit her was unreasonable, given the familial ties and her need for financial support.

The court was required to determine whether the deceased's decision to leave the estate to his friend rather than his daughter was reasonable and whether the plaintiff was entitled to a legacy under the Family Provision Act. The central legal issue was whether the strained relationship between the deceased and the plaintiff could justify the deceased's decision to disinherit her, and whether the court should intervene to provide financial support to the plaintiff.

The court found that the deceased's decision to leave the estate to his friend was reasonable, considering the limited and strained relationship between the deceased and the plaintiff. However, the court also recognised the plaintiff's need for financial support and ordered a legacy to be paid to her out of the estate. The court considered the deceased's intention and the circumstances surrounding the estate, ultimately concluding that while the decision to disinherit the plaintiff was reasonable, it was not so unreasonable as to warrant the court's intervention. The court ordered a legacy to be paid to the plaintiff, reflecting the need for financial support and the limited relationship between the deceased and the plaintiff.

Orders