Parry v Osgood

[2001] NSWSC 664

CITATION:	Parry v Osgood [2001] NSWSC 664
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3622 OF 2000
HEARING DATE(S):	03/08/2001
JUDGMENT DATE:	3 August 2001
PARTIES :	EVA WINIFRED PARRY v GEORGE EDWARD OSGOOD & BETTY JOYCE OSGOOD
JUDGMENT OF:	Master Macready at 1

COUNSEL :	P. O'Loughlin for plaintiff R. Wilson for defendants
SOLICITORS:	Spencer Davies for plaintiff Messrs Walker Smith for defendants
CATCHWORDS:	Family Provision. Claim in respect of a small estate. No matter of principle.
DECISION:	Paragraph 20

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Isabel Louisa Maud Osgood who died on 14 October 1999. The deceased was survived by her two children, the plaintiff, Eva Parry, and the first defendant, George Osgood.

2   The deceased made her last will and testament on 17 September 1998. Under that will she provided a right of residence to the plaintiff for a period of 12 months. The plaintiff and her husband had for many years lived in a second dwelling which is known as the jockey quarters on the property at Cundletown. Subject to that matter the estate was held as to one half for the plaintiff and one half for the first defendant, George Edward Osgood.

3   The estate consisted of the property which has been sold, probably for far less than the parties anticipated. After paying various expenses, the estate has been reduced to cash and amounts to $129,252.22. The costs of the plaintiff and the defendant are in the order of $50,311, meaning that the balance of the estate, assuming the plaintiff is successful, is $78,941. The plaintiff and the first defendant would each receive $39,470 under the terms of the will.

4   I will just give a little of the history and the background so it puts the matter in context. The deceased herself was born in 1910 and her daughter, Eva Winifred Parry, was born on 4 May 1929. The son, George Osgood, was born on 14 November 1930. The deceased was divorced in 1940 and she married Frederick Richard Osgood in January 1941. It was in 1947 that there was an adoption order by which the deceased and Mr Osgood were appointed the adopting parents of the plaintiff and George Osgood.

5   The deceased and Mr Osgood moved to Cundletown initially in 1967 in conjunction with some friends with whom they bought a property. Eventually it was in 1974 they purchased a property at 360 Landsdowne Road, Cundletown and a home was erected on the property.

6   It was in 1975 that at the request of Mr Osgood and the deceased, the plaintiff and her husband re-located to Cundletown. For about 12 months they lived in the main home but then in 1976 and 1977 the carport and jockey quarters were converted into self-contained accommodation. The plaintiff and her husband moved into that accommodation.

7   On 7 September 1977 Frederick Osgood died of cancer and thereafter the deceased was looked after inter alia by the plaintiff and others. She had a fall in 1997 and was admitted to the Wingham Hospital. She was then assessed as needing to go to a nursing home. There was some argument about whether she should go into a home. She was discharged from hospital and then went with the defendant to live with them in Newcastle.

8   She made a will on 17 September 1998 and in July 1999 was admitted to a nursing home. She died in October. Probate was granted, the proceedings were commenced within time and the property eventually sold in September 2000.

9 In applications under the Family Provision Act the High Court has some time ago in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the application '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 or 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."

10   It is necessary in accordance with the direction of the High Court that I look at the situation first of the plaintiff. The plaintiff is 72 years of age. She is married and they have only small assets. They have cash in the bank of $19,220, a Ford Lancer worth $2,000, a Mazda worth $200 and furniture and contents worth about $1,500. They do not have any debts and the plaintiff and her husband receive an age pension of $647.45 per fortnight. They live in rented accommodation and they spend approximately $680 a week to maintain those premises and meet necessary expenses.

11   The plaintiff puts the case on a two-fold basis: either she would like to purchase a modest dwelling within the area where they have lived now since 1977 for between $80,000 and $90,000 or, alternatively, some further provision to provide a fund for contingencies.

12   It is also necessary, of course, to look at the defendant's situation. He is 70 years of age and he and his wife have a property at 15 Marks Pde at Marks Point worth about $200,000. They have cash of $5,000 and a 1986 Mazda 626 motor vehicle. They have a debt of some $3,500 to Bankcard and they have an income mainly from the first defendant's wife of $767.50 per week. They have reached a stage in their life, certainly the first defendant has, where he has had a number of operations, is not able to work and clearly he needs something behind him for contingencies. No doubt his entitlement under the estate would provide such a sum.

13   There have been some minor differences in the evidence about certain periods, for instance the period for a year after the plaintiff first moved to live with the deceased and also the fact that there was apparently a dispute as to whether the deceased should go into a nursing home. In the overall context of the matter those matters are not of significance.

14   There are I think, however, three important points to make about the matter. The first of these is that it was at the request of the deceased and her husband that the plaintiff and her husband relocated to the area in 1976 and 1977. The second important matter is the fact that a number of payments were made by the plaintiff and her husband back in 1977. There were a number of payments firstly for the cost of alterations and also some amounts paid to pay off debts. There were two amounts of $5,000 in February 1976 and September 1976 which were paid to cover costs of work done to the property, partly to accommodate the plaintiff. Then there were two further amounts of $5,000 in May 1977 and $6,599 paid in September 1997 after the death of Mr Osgood. Both these amounts were paid to firstly reduce the mortgage prior to Mr Osgood's death and in September to finally pay it off. Apart from those payments of some $21,599 there was also some $3,156 which was spent by the plaintiff in actually doing some work inside the second house.

15   The importance of those payments are that they were payments which enabled the asset of the deceased to be maintained and kept for the rest of her life.

16   The third matter of importance is that clearly there was help by the plaintiff to the deceased for a period from 1977 to 1989 that was fairly long term. No doubt it increased as the deceased got older, lost her sight and had some difficulty in coping.

17   Counsel for the defendant has very properly drawn to my attention that ordinarily in such a case members of the public would not normally expect that provision should be made to provide a child with a house by a testator. In Shearer v The Public Trustee and Hawke Justice Young had the following to say:

“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 obligations 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."

18   In the present case, of course, this is not quite the usual case. There is the contributions which are important firstly because they enabled the house to be maintained and also because of that sum of $20,000 plus were made in 1977 and 1997. They were fairly substantial then in the context of the value of money at that time.

19   In the circumstances I do not think that the plaintiff's request that she have some money to purchase a house is inappropriate. I think the easiest way to deal with the matter is to provide for a legacy to the plaintiff so that the balance will then be divided between the plaintiff and the defendant and the legacy I propose is one of $35,000. That will give sufficient for her if she wishes to buy a house and it will also provide a little under $22,000 for the first defendant so that he has some funds for the uncertainties that no doubt lie ahead.

20   Accordingly, the orders that I make are as follows:

1. The plaintiff, in addition to the provision made for her under the will of the deceased, receive a legacy of $35,000.

2. I order the plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis be paid out of the estate of the deceased.

21   I will order that interest will run on the legacy from 28 days after today's date. The rates are those provided for under the Wills, Probate & Administration Act.

Last Modified: 09/05/2001