Sayer v The Public Trustee - [2009] NSWSC 89

CITATION: Sayer v The Public Trustee [2009] NSWSC 89

HEARING DATE(S): 25/02/09, 26/02/09

JUDGMENT DATE :
31 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 74

CATCHWORDS: Family Provision. Application by widow from second marriage. Option to purchase deceased's share in family home given to widow. Held appropriate provision requires that she receive the deceased's half share of the family home.

PARTIES: Jennifer Christine Sayer v The Public Trustee of New South Wales (Estate of

FILE NUMBER(S): SC 6105/07

COUNSEL: Mr DK Jordan for plaintiff
Mr Mr Meek for defendant

SOLICITORS: L. Rundle & Co for plaintiff
Anthony Lentini for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Tuesday 31 March 2009

6105/2007 Jennifer Christine Sayer v Public Trustee of New South Wales (Estate of William Robert Sayer)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late William Robert Sayer who died on 22 July 2007. He was survived by the plaintiff, his second wife, and his three children by his first marriage. The deceased and the plaintiff had no children together but the plaintiff also had children from a previous marriage.

The last will of the deceased

2 The deceased made his last will on 3 December 1987. Under that will he appointed the defendant as executor and he left his half share of the matrimonial home situated in the countryside outside Armidale in northern New South Wales to his three children and gave them the money in his bank accounts.

3 He left the residue of his estate to the plaintiff's two daughters and gave the plaintiff and her two daughters the option to purchase his share of the house at a market value. The option was not exercised within the time limited by the option in the will.

Assets in the estate

4 The deceased had at the date of his death his share of the home and funds in bank accounts of $32,214.30. The present value of the deceased’s share of the property is valued at $550,000 and there are monies held by the Public Trustee of $21,520.60. The defendant's legal costs are estimated at $51,806.64 and those of the plaintiff estimated at $40,000. If the property were the sold the commission would be $12,500.

5 The deceased also had a superannuation pension. On his death the plaintiff became entitled to 5/8ths of his pension. The plaintiff elected to convert that pension to a lump sum and on 7 March 2007 she received $183,883.58.

Family history

6 The deceased was born in November 1928 and the plaintiff was born in March 1936. The deceased married his first wife in 1954 which was the year that the deceased and plaintiff met while studying to be teachers. In 1959 the plaintiff moved to Armidale and lost contact with the deceased.

7 The deceased had three children by his first marriage.…

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 Sayer v The Public Trustee

Details

AGLC: Sayer v The Public Trustee [2009] NSWSC 89
Case: [2009] NSWSC 89
Decision Date: 31 March 2009

CaseChat Overview and Summary

The case of Sayer v The Public Trustee involved a widow seeking to ensure that she received appropriate provision from the estate of her deceased husband, pursuant to the Family Provision Act. The deceased, who was married twice, owned a family home with his second wife. Upon his death, the court was tasked with determining whether the widow was entitled to the deceased's share of the family home. The widow from the second marriage applied for an order under the Family Provision Act to receive the deceased's half share of the family home. The court needed to decide whether the deceased had made appropriate financial provision for the applicant and, if not, what was the appropriate provision to be made.

The court considered the legal principles established in previous cases, particularly the requirement for the court to make an order for appropriate provision if the deceased had not made such provision. The court assessed the contributions made by the deceased to the family, the financial needs of the widow, and the deceased's obligations to other family members. It was noted that the deceased had given the widow an option to purchase his share in the family home, but the court determined that this did not constitute appropriate provision under the Act. The court also considered the nature of the relationship between the deceased and the widow and the circumstances of the deceased's death.

In its judgment, the court held that the deceased had not made appropriate provision for the widow from his second marriage. The court found that the widow's needs and contributions warranted that she receive the deceased's half share of the family home. The court ordered that the deceased's half share in the family home be transferred to the widow. This decision recognised the widow's entitlement to appropriate provision from the estate of her deceased husband, in accordance with the principles of the Family Provision Act.

Orders