Turnley v Swaab

[1999] NSWSC 594

CITATION:	TURNLEY v SWAAB [1999] NSWSC 594
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4856/97
HEARING DATE(S):	28/05/99
JUDGMENT DATE:	28 May 1999
PARTIES :	DONALD HERBERT TURNLEY v FREDERICK SWAAB AND ANOR
JUDGMENT OF:	Master Macready

COUNSEL :	J.N. West QC and N.J. Kidd for the plaintiff L. Ellision for the defendant
SOLICITORS:	Richard Barron for the plaintiff Swaab Attorneys for the defendant
CATCHWORDS:	Family Provision
DECISION:	Paras 76-78

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 28 MAY 1999

4856/97 - DONALD HERBERT TURNELY v FREDERICK SWAAB - ESTATE OF GLORIA JARMAN

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Gloria Elvira Jarman who died on 19 July 1995 aged ninety-two years. She was survived by two second cousins and the plaintiff. The plaintiff alleges that he was in a de facto relationship with the deceased from 1975 until the date of death.

2    The last will of the deceased was made on 28 October 1993 and under that will the deceased appointed two solicitors who were executors and gave a bequest of the residue of the money in her Advance Bank account to her second cousin, Doctor Sandor. She gave her property which is Unit 9, 59 Gilderthorpe Avenue, Randwick, to the trustees to sell it and pay a legacy of $5000 to her other second cousin, Eva Sandor, and the rest of the proceeds of sale to the National Representative of Hungarian Jewish Children to use for the benefit and advancement of sick Hungarian Jewish orphan children. Effectively she gave the rest and residue of the estate to the National Representative of Hungarian Jewish Children.

3    She had, at an earlier time, made another will and that was on 22 May 1990. That will, in effect, gave legacies of $15,000 to Eva Sandor, two other pecuniary legacies of $15,000 and $5000 to people who did not take any part in this case, $5000 to Thomas Sandor and the residue to the same charity.

4    The estate of the deceased at the date of death consisted of Unit 9, 59 Gilderthorpe Avenue, Randwick which in the past has been estimated to have a value of $195,000 although a recent report for the purposes of marketing for sale suggests that it might be in the vicinity of $250,000 to $300,000. There is also a bank account having a sum of $10,387.82 and there was a refund due of a sum of $266.67 and a number of payments worth $6000.

5    There are substantial costs which have been incurred, both in the administration of the estate and in these proceedings. The defendant's costs are estimated at $17,000 and those of the plaintiff are estimated in a similar amount.

6    It is probably useful to deal with a little of the history first. The deceased was born on 21 December 1902 and the plaintiff was born on 28 April 1927. There was thus a twenty-five…