Dolman and Anor v Palmer [2005] NSWSC 327 (31 May 2005)

This case is in relation to an application for a Family Provision Claim under the Estate of the deceased who died aged 71 years.  The deceased was survived by his first wife, his second wife, his de facto and his two children from his first marriage. The first plaintiff is the deceased’s daughter and the second plaintiff is his first wife. The defendant is a friend of the deceased who was appointed his executor. The deceased’s second wife and a former de facto partner have been given notice of the proceedings and made no claim.  Turner Freeman acted for the executor.

The deceased made his last Will in 2003 and left his property as to one half share to his son. He gave 25% to his sister and brother-in-law, 7.5% to his nephew and his wife, 5% to his sister and brother-in-law, 2.5% to the defendant and his wife, 5% to friends and the remaining 5% to a former de facto partner. He made no provision for either plaintiff and left statutory declarations in which he set out the reasons why he made no such provision.

In respect to his daughter he said:

“I have made no provision in my Will for my daughter for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital. ”

In respect to the first wife he said:

“I have made no provision in my Will for my ex-wife, for reasons including the we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the family Court of Australia whereby my ex-wife received and adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me. ”

The deceased’s son left home in April 1984. In the middle of 1984 there was a separation between the deceased and his wife after 22 years of marriage. At that time the deceased occupied the upstairs of the property and his wife and the daughter occupied the ground floor of the property. It is plain that they lived totally separate lives from this time onwards.

The first wife was 71 years of age, single and had no dependants. She lived with her daughter in a property which she owned outright valued at $870,000. She had a small savings, was in good health and continued to work part time. She also received a pension of $235 per week, money by working in the school canteen for which he receives $100 dollars per week, as well as the board the received from her daughter. The first wife was obviously just making ends meet.

Although the first wife had entered into a property settlement with the deceased, there was evidence that he had not disclosed all of his assets at the time it was made.  The Court therefore determined that that the property settlement should be set aside and a provision made for the first wife from the Estate.

The deceased’s daughter was years 33 years of age, single and lived with her mother with no dependants. She was employed as an assistant visual merchandising manager by Myers on an annual gross salary of $50,000 and had modest savings. The deceased attempted to have contact with his daughter and be involved in her life when she became an adult, but was told that she wanted nothing to do with him.  Even after she became aware he was dying, she still did not make any effort to visit him in the hospital until her brother insisted upon it.  Due to her rejection of a relationship with the deceased, her claim was subsequently dismissed.

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