Abrego v Simpson - [2008] NSWSC 215

No judgment structure available for this case.

CITATION: Abrego v Simpson [2008] NSWSC 215

HEARING DATE(S): 3 and 4 March 2008

JUDGMENT DATE :
13 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Provision for plaintiff made

CATCHWORDS: FAMILY PROVISION AND MAINTENANCE - claim by husband - short period of marriage - consideration of character and conduct of eligible person - whether life estate for surviving spouse appropriate - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

LEGISLATION CITED: Family Provision Act 1982
Testators Family Maintenance Act 1916

CATEGORY: Principal judgment

CASES CITED: Crisp v Burns Philp Trustee Company (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported)
Wentworth v Wentworth (Supreme Court of New South Wales, Bryson J, 14 June 1991, unreported)

PARTIES: Gasper Abrego (Plaintiff)
Danny Kenneth Simpson (Defendant)

FILE NUMBER(S): SC 3704 of 2006

COUNSEL: G C Lindsay SC with him Mr C P Locke (Plaintiff)
M Lawson (Defendant)

SOLICITORS: Oliveri Lawyers (Plaintiff)
Redmond Hale Simpson (Defendant)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 13 MARCH 2008.

3704/06 GASPER ABREGO V DANNY KENNETH SIMPSON

JUDGMENT

1 The plaintiff, Gasper Abrego, seeks provision for his maintenance and advancement from the estate of his wife, Kathleen Wells, who died on 1 June 2006 aged 81 years.

2 The deceased left a will dated 7 March 2006, probate of which was granted to the defendant on 11 July 2006.

3 By her will, the deceased gave legacies of $5,000 to her nephew, Terry Wilson and to Jason Abrego. She gave a legacy of $50,000 to her grandson, Michael Wells. She provided that the net proceeds of sale of her property 6/11 Eddystone Road, Bexley should be divided equally among her nephews, Terry Wilson, Dennis Wilson and Alex Gibson. She gave to her husband, the plaintiff, the contents of her property provided he collected those contents within three months of the date of her death. She gave the residue of her estate as to 1/17th of it to the Foundation Fighting Blindness, as to a further 1/17th to Diabetes Australia (NSW), to a further 1/17th to the Cancer Council of New South Wales, as to 7/17ths to St Gabriel’s Church at Bexley for the charitable purposes of that church and as to the remaining 7/17ths to St Patrick’s Catholic Church in Sydney for the charitable purposes of that church. The will, after these provisions, then included the following paragraph:

And I declare that I have not made greater provision in this my will for my husband, Gasper Abrego, because we have been married only for a short time and we are now separated and he has been guilty of physically mistreating me.

4 The assets at death consisted of the following:

Bexley property $380,000

Money in bank accounts $226,271
Shares $ 11,758
Total $618,029

5 The plaintiff was born on 2 August 1926 and is now 81 years of age. He met the deceased in 1986 at the Catholic Church in Leichhardt and commenced an intimate relationship with her. He said that he attended to all domestic duties in the deceased’s house from 1986 on, although they did not live together until 2001 or perhaps until 2002.

6 The affidavit evidence as to dates is a little confusing but I set out paragraphs 10 to 21 of the plaintiff’s affidavit of 23 March, which evidence did not alter in any substance after cross-examination.

10. I first met the Late Kathleen Wells ("Kathleen") in about 1986 at the local Catholic Church at Leichhardt and soon thereafter we commenced an intimate relationship. Although we lived separately until 2001 I attended to all the domestic duties at Kathleen's house from 1986. From about 1986 we held out to others that we were together in a marriage like relationship.

12. I was a divorced person, I could not remarry in the Catholic Church without first obtaining an annulment.

13. I wrote to the Vatican in Rome and, on or about 19 May 1992, I received a letter from the Vatican signed by Monsignor L. Sandri directing me to return to the local parish priest for more consultation. Annexed hereto and marked A" is a true copy of the said letter which I received from Monsignor L. Sandri on or about 19 May 1992.

15. On or about 11 September 2001 Kathleen was admitted to St George Hospital for treatment of a brain tumour. While Kathleen was in St George Hospital, I visited her on a daily basis.

17. I then spoke to Kathleen's doctor about her medication, and the medication was subsequently changed. After this occurred, I noticed that Kathleen was in less pain, and she returned to her home at Mascot.

19. In 2001, I commenced co-habiting with Kathleen at 11/19 Johnson Street Mascot. By this time Kathleen was nearly totally blind and could not attend to any of the household duties. I undertook all such duties including the gardening. I would also take Kathleen to church each Sunday and to her medical appointments. I prepared and administered her medication as required.

20. In or about 8 November 2002, Kathleen purchased a villa at 6 /11-15 Eddystone Road Bexley, and we then lived at that property in a de facto relationship.

7 There is no doubt that the deceased was seriously ill from 2001 on, nor that she was unable to look after herself and required constant assistance and support from the plaintiff during this period, though there is some doubt raised about the quality of the support and care. During her admissions to hospital at an early stage she was visited, usually daily, by the plaintiff. The deceased was almost blind and had to be taken to various medical appointments. She was diagnosed with terminal cancer in March 2006 on admission to hospital. She did not return home after that and was transferred, first to the Calvary Nursing Home and then to another nursing home.

8 There is a dispute about the reason for the events next discussed, but the following took place. Mrs Wells was admitted to hospital on 19 February 2006. She arrived in hospital by ambulance. When the plaintiff went to the hospital he was met by police officers who asked what had happened. He said that the deceased wanted to go out at 3.00 am but he tried to get her to bed and that at 7.00 am he found the deceased wandering in the road and went to a neighbour’s house and called an ambulance. After this the police told him to go home and that he could not see his wife, (but presumably that was only on that day). Mr Wilson, who lives in Melbourne was contacted by the hospital authorities and asked to come to Sydney which he did the next day.

9 Soon after this Mr Wilson arrived at the Bexley house, asking for clothes of the deceased and her bank books and title deeds, which the plaintiff refused to hand over. Some days later Mr Wilson entered the house without permission from the plaintiff. There can be no complaint about this. The plaintiff called the police and Mr Wilson departed. He was there with three others. The plaintiff said that he was afraid and arranged to move and take his possessions to a rented place at Arncliffe where he still lives. Mr Wilson says that when he entered the plaintiff was ready to move.

10 The plaintiff said that he spoke to his wife in hospital on 7 February 2006 when the following conversation took place:

Me: Terry wants me out of the house and he said that you don’t want me to visit you any more. Is that what you want?

Kathleen: You’re my husband and that is your home. I want you to stay home.

11 The financial position of the plaintiff is poor. Apart from some furniture and a motor vehicle worth about $1,100 he has no assets at all. His income is a CentreLink pension of $324 a week and his outgoings about the same. Those outgoings, of course, include rent. I disregard any costs of the probate action. Presumably it was run on a contingency fee basis. The contingency did not eventuate. It is clear that unless his conduct is such that it is not proper to make any provision for him, then he has been left without adequate provision for his proper maintenance and support, although it is necessary to deal with a submission that by the time of the death of the deceased that the marriage had come to an end. To those matters I now turn.

12 The material upon which I am required to come to some sensible decision in this action, as to whether and to what extent the conduct of the plaintiff bears upon his claim for provision, consists of (a) 267 pages of hospital notes repeated in large part in another exhibit; (b) some documents produced on subpoena by the Police Department concerning domestic violence complaints against the plaintiff; some affidavit evidence of Mr Wilson and a Mrs McCarroll; and denials of the plaintiff.

13 The material produced from St George Hospital, apart from reports from Dr Pryor which do not really assist, comprises discharge summaries, nursing notes, pastoral care notes and social worker notes generally on a daily basis and apart from Exhibit 2 are generally in a somewhat confused order. Those documents contain quite numerous references to statements of the deceased critical of her husband to the effect of physical abuse, verbal abuse and being restricted to the house. They also contain statements by the deceased of the assistance she is being given by the plaintiff, without whose help she could not live in her home.

14 The case for the plaintiff put in opening by Mr Lindsay SC is that the deceased, at least by the time the later entries were made, was terminally ill with pancreatic cancer and a tumour of the brain; that such illness caused her to turn against her husband as she was in a delusional state and thus critical statements should be disregarded, although apparently those supportive of her husband were to be taken into account. It is perhaps relevant to say, as I was told in opening, that an action for revocation of probate of the will on the ground of lack of mental capacity was discontinued. That action would have been a far better vehicle to determine the claim of delusion, but it was discontinued on the agreement that such discontinuance would be without prejudice to the right to raise much the same matters in the present proceedings.

15 I think it strange and remarkable that neither side sought to adduce appropriate medical evidence which would assist in determining whether or not the court should find statements made by the deceased which are of course admissible in evidence in these proceedings to be convincing. What seemed to be suggested was that a judge would understand that persons suffering from illnesses such as afflicted the deceased, were likely to turn against and make unfounded complaints about loved ones. While it is possible that may be a case of general knowledge, it is a general proposition which I could not conclude was relevant to this particular case without evidence. Little was heard about delusions in closing addresses.

16 Section 9(3)(b) of the Family Provision Act 1982 provides that in determining what provision (if any) should be made for an eligible person the court may take into consideration the character and conduct of the eligible person before and after the death of the deceased person. While that provision is in different terms from s 3(2) of the Testators Family Maintenance Act 1916 pursuant to which the court “may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order” I agree with the conclusion of Bryson J in Wentworth v Wentworth (unreported 14 June 1991 BC 9101876) that the considerations are much the same. The conduct is to be taken into account; it may be such that no order should be made; or it may be such that it should bear on the provision which is to be made.

Police material

17 Four incidents are the subject of police reports in evidence. After sorting through them and putting them into date order these are as follows:

A. 10 May 2003. The deceased contacted the police on a 000 call while the plaintiff was out. She told the police officers who attended that the plaintiff would not let her go outside and she saw nobody. She said she had lost her independence and wanted the plaintiff to leave. She made no complaint of physical injury or of the care which she received. The police inspected the kitchen and said it was “in an inhabitable condition due to the ages and mobility of the parties” – whatever that may mean. The police arranged a visit from the aged care assessment team from the Calvary Hospital which seems to be known colloquially as CRAGGS.

B. 25 February 2005. This was again a 000 call from the deceased at 9.40 pm. The deceased told the police that she and the plaintiff had an argument about his bringing furniture home and blocking up the rooms then the following appears “she also stated that while she appreciated his efforts her carer does not let her out of the house to see anyone and he locks her inside when he goes out”. There was a further referral to CRAGGS.

While speaking with Police the VIC made a number of serious allegations. She stated that for the 3 years while she was in the process of losing her eye sight the POI has kept her prisoner and would not let her leave the premises. She also stated that she was not allowed any visitors and had very little contact with the outside world. Also when she was talking to other people the POI was always standing directly behind her and would cut the conversation short. The VIC has made numerous attempts to inform the neighbours that she was in need of help by taping on the windows in her bedroom, however the neighbours ignored her. The POI stated that they were ignoring her becaused [sic] he told them that she was mentally handicapped. The VIC was locked in her bedroom virtually all day every day. The POI has pulled out the phone in her bedroom so she is unable to call anyone for help. The POI would also wake her up as early as 2am every morning to force feed her vegetables.

In cross-examination the plaintiff denied the substance of the allegations here made, other than to say that he did wake his wife at 4.00 am to give her something to eat as she had to eat every four hours.

The vic informed Police that the POI keeps the house locked with he being the only person with a key for the premises. The vic is only allowed to leave while under care and supervision of the POI. About 7:40am on the 19/2/06 the vic found a spare key to the premises and let herself out the premises and gained the attention of a neighbour. The neighbour out of concern for the vic called an ambulance as the vic was asking for help. At this stage the POI grabbed the vic with one hand around her mouth and the other arm around her neck. The vic states she believes the POI did this in order to physically take her inside so she did not get away. When questioned later, the POI said he did grab her, but not in the way stated by the vic. The POI states that he grabbed her as he feared that she was in danger of running onto the road.

Hospital material

General

18 The hospital records, as is quite usual in these matters, for the most part contained quite detailed nursing notes and notes from a physiotherapist, pastoral carers and social workers. It is difficult to know what reliance can be placed upon the representations set out in those notes without any assistance whatsoever from any qualified medical witness. I do not think it helpful to go into them in any detail but some relevant material from the various admissions is set out in the following sub-paragraphs.

A. Admission 20 April 2001 to 7 May 2001. The deceased was admitted after a grand mal seizure. Her sister was noted as the person to contact. I should say that this was continued through the various admissions, but it is more likely than not that this was brought forward through a computer system without advice on each occasion. The notes contain statements of confusion and impairment. They do state, however, that the deceased was living alone. There is no mention of the plaintiff.

B. Admission 25 November to 26 November 2002. On this occasion the plaintiff was referred to as a carer (live in), as a “flatmate” and as a friend.

C. Admission 27 January 2003 to 29 January 2003. On this occasion the deceased was admitted after another seizure, this time at the Bexley Club. Apart from indicating that the deceased was alert and oriented on admission and some later statements about anxiety and confusion, there is nothing relevant.

Patient became upset crying and distressed. Partner left ED. Patient stated she did not want to go home and that she feared what her partner might do. She stated ‘I hope he does not take this out on me’ and that sometimes she wished he would go away. Patient was grateful for the care that her partner provided but seemed bullied into making decisions.

There then appears a long note from a social worker Ms Tiernay, giving a history of the relationship obtained from the deceased with a statement referring to the plaintiff “he does not allow her to leave the house, have any friends, take telephone calls, answer the door to anyone or get any form of exercise. Patient denied that partner is physically abuse however following discussion with SW was able to identify partner’s behaviour as mostly psychologically and socially abusive.” This last I take to be the conclusion which the social worker asked the deceased to draw, rather than anything she said and I disregard it.

E. Admission 18 December to 19 December 2005. This was the first admission after the marriage. It seems the deceased had an argument with the plaintiff and was taken to hospital by ambulance. She was of course by this time an elderly lady concerned about her health and disabilities. She was almost blind. According to the hospital notes the deceased wanted to go to a safe house and said that the plaintiff had not been violent to her but shook her once and the phone had been disconnected and the house locked.

F. Admission 27 January 2006 to 13 February 2006. There are 74 pages of notes relating to this admission. It is clear that during this period the deceased was very disturbed and perhaps the history taken from her may not be particularly reliable. There are statements from the deceased that she was frightened of her husband; he prevented her from eating what she wanted to eat; he called her a retard daily; he would not allow contact with others and that he pushes and shakes her. She wanted him out of the house. There is, however, a note on the following day where the deceased said that she now wanted to go home “claiming things are not all that bad at home”. On the following day when the deceased was confused and disoriented at the commencement of the day, there is a note to show that she was visited by the plaintiff and was happy to see him and that the plaintiff was concerned about her condition and her not eating. However, the deceased’s self-control deteriorated and at one stage she bit a nurse who was trying to get her back into bed. On 7 February according to notes from a social worker, Julie Hutchins, the deceased spoke very fondly of her husband and the care she receives at home. On 13 February the plaintiff was insisting on taking his wife home and although the hospital authorities seemed anxious about this she was, in fact, discharged.

G. Admission 19 February 2006 to 3 March 2006. This was the admission after the deceased had wandered outside having apparently obtained a key to the house and the plaintiff found her outside at about 7.00am. The ambulance was probably called by a neighbour but this is not altogether certain. It was the occasion when the police went to the hospital to see the deceased and spoke to the social worker. According to the hospital records the deceased said that the plaintiff had put his hand over her mouth, his hand around her throat and threw her on the bed and told her to stay in bed. Again there are statements about being locked in the house, but she found a key to get outside and get a neighbour to call an ambulance. As the neighbour was not called, one does not know what really happened, except that there is no doubt the deceased arrived in the hospital after some wandering and subsequent altercation with her husband. It was at this stage that Mr Wilson was contacted and came to Sydney.

H. Admission 13 April 2006 to 20 April 2006. This was the final admission to the St George Hospital. By that time the plaintiff had moved out of the home. The deceased was seriously ill and eventually was transferred to the Calvary Hospital.

19 There are some other matters of significance. The first is that an elderly lady, Mrs Alewood, visited the deceased and the plaintiff regularly after meeting them at church in 2004. She said that she visited them weekly until the deceased went into hospital in February 2006. She was doing voluntary work through St Gabriel’s Catholic Church at Bexley and according to her affidavit visited them “to provide comfort and support as well as to give Holy Communion to Kathleen”. Paragraphs 5 and 6 of her affidavit are as follows:

8. In or about early 2006 I had a conversation with Kathleen Wells wherein she said to me words to the effect:

Kathleen: “Gasper pulled the phone cord out of the wall so that I couldn’t call anyone. Whenever Gasper goes shopping he locks me in the house so that I can’t get out and see my friends. I found a spare key in one of the draws, though, and managed to escape. Gasper has been violent to me. He grabbed me by the neck and threw me onto the bed. He wouldn’t let me wear nice clothes”.

9. At or about the same time, but in a separate conversation, Kathleen Wells said to me words to the effect:

Kathleen: “I am frightened of Gasper. I think he is going to kill me”.

20 The defendant, Mr Simpson, who is the executor of the will, who witnessed the power of attorney and the appointment of guardian, although not the will under which he was entitled to charge costs, gave no evidence of and was not questioned about instructions given to him by the deceased for the will. Mr Wilson, who was responsible for finding the solicitor and making the arrangements for the documents, was not asked any questions about his part in this at all. In fact the only question of any note asked of him in cross-examination was whether he informed the plaintiff of the death of his wife, which he did not. No doubt all this can be explained by accepting that Mr Wilson took at face value everything that was told to him by the social workers in the hospital and had come to the conclusion that his aunt was being mistreated by the plaintiff.

21 The conclusion to which I come on what I regard as a generally unsatisfactory state of affairs so far as the evidence is concerned is that the plaintiff and the deceased had a long and generally happy association; that they lived together in reasonable harmony from 2002 until 2005; that the marriage was a real one and was intended to be real; that this marriage did not come to an end; and that the plaintiff moved out because he felt he had no alternative because of the demands of Mr Wilson and that he accepted, rightly or wrongly, that Mr Wilson had obtained control by dint of his power of attorney and his role as guardian. The plaintiff gave evidence in the witness box that he loved the deceased and I consider that statement to be genuine. Nevertheless I find that the plaintiff did not behave at all times in a way which was correct and he was very controlling. There is probably more evidence pointing to inappropriate conduct than the other way. These are matters which must be taken into account in arriving at any decision.

22 While the friendship was a long one, the period of living together was relatively short and the period of marriage was even shorter. I have come to the conclusion that the conduct of the plaintiff is an important matter to be taken into account in determining what order should be made in his favour, but it is not a matter which should preclude the making of any order. It is a matter to be taken into account, as is the age of the plaintiff, who is 81 years of age and as is the fact he is not in particularly good health. There is also to be borne in mind the fact that the plaintiff brought nothing to the marriage by way of assets, all of which were provided by the deceased.

23 Counsel for the plaintiff put that the plaintiff should get the house, which remains unoccupied, and that he get a legacy of $50,000 as well. Although it is sometimes said that it is inappropriate to order provision by way of a life estate in the case of surviving spouses, that is not a universal rule. The extent of the provision which ought to be provided, the age of the applicant for provision, and many other matters bear upon what is an appropriate order. In this case I consider the appropriate order is for an order in the form of what is usually called a Crisp order: Crisp v Burns Philp Trustee Company Ltd (Supreme Court of New South Wales, Holland J, 18 December 2979, unreported) in respect of the home, together with an amount of $50,000 to provide for the immediate needs of the plaintiff. It should be remembered that the plaintiff is a pensioner. I proceed on the basis a legacy of $50,000 will not bear upon this, but if I am wrong I should be told as I proceed on the basis the plaintiff will retain his pension and will be entitled to the benefits of a pensioner so far as rates for the property are concerned. The plaintiff should be responsible for the outgoings on the property. The intention is to provide for the reasonable accommodation needs of the plaintiff for his life. As social security rights may have altered since 1979 the parties should bring forward appropriate orders to generally the same effect as in Crisp.

24 The financial position of the beneficiaries under the will is not such as requires reconsideration of the orders I propose. It is not suggested the pecuniary legacies should be interfered with. Mr Wilson is a consultant with a moderate income which covers his requirements. When he retires he will have the benefit of superannuation of $450,000. He and his wife own their home worth $650,000. They have no children.

25 Mr Alexander Gibson is aged 65. He is blind. He or he and his wife have a half share in a house, that other share being owned by their daughter. A one half share is worth about $230,000. They have a car worth $14,000 and $7,500 in savings. Their income is from a joint pension of $360 a week which covers their weekly expenses of $355.

26 There is no evidence of the financial position of Mr Denis Wilson so it can be assumed it need not be taken into account.

27 I will hear argument about how the burden of the orders I propose to make should be borne, but as the costs will come out of residue, it is probably appropriate the rights of those persons entitled to the proceeds of sale of the home should be postponed to the benefits now given to the plaintiff.

28 The costs of both parties will come out of the estate. Although I will hear submissions, at present I consider the plaintiff’s costs should be capped at $50,000.

**********

Actions

Download as PDF Download as Word Document

Citations

Abrego v Simpson [2008] NSWSC 215

Most Recent Citation

Patricia Morris v Smoel [2014] VSC 31

Cases Citing This Decision

8

Bramwell v Bramwell [2023] SASCA 94

John v John [2010] NSWSC 937

Re Papaioannou; Papaioannou v Kronemann [2019] VSC 844

Cases Cited

0

Statutory Material Cited

2

CITATION:	Abrego v Simpson [2008] NSWSC 215
HEARING DATE(S):	3 and 4 March 2008
JUDGMENT DATE :	13 March 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Provision for plaintiff made
CATCHWORDS:	FAMILY PROVISION AND MAINTENANCE - claim by husband - short period of marriage - consideration of character and conduct of eligible person - whether life estate for surviving spouse appropriate - COSTS - Family Provision Act claim - amount of costs - lack of proportionality
LEGISLATION CITED:	Family Provision Act 1982 Testators Family Maintenance Act 1916
CATEGORY:	Principal judgment
CASES CITED:	Crisp v Burns Philp Trustee Company (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported) Wentworth v Wentworth (Supreme Court of New South Wales, Bryson J, 14 June 1991, unreported)
PARTIES:	Gasper Abrego (Plaintiff) Danny Kenneth Simpson (Defendant)
FILE NUMBER(S):	SC 3704 of 2006
COUNSEL:	G C Lindsay SC with him Mr C P Locke (Plaintiff) M Lawson (Defendant)
SOLICITORS:	Oliveri Lawyers (Plaintiff) Redmond Hale Simpson (Defendant)