Adams v Adams

[2001] NSWSC 456

CITATION:	Adams v Adams [2001] NSWSC 456
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4468/99
HEARING DATE(S):	30/05/01, 31/05/01, 01/06/01
JUDGMENT DATE:	1 June 2001
PARTIES :	Peter John Adams and ors v Jennifer Anne Adams - Estate of Meryl Audrey Adams
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr J.D. Shaw for plaintiff Mr S. Stewart for defendant
SOLICITORS:	H.M. Symonds & Britten for plaintiff Webb Thom & Associates for defendant
CATCHWORDS:	Family Provision. Application by three children. Conduct disentitling in respect of one child. Discussion of principles. Orders made in favour of two children.
DECISION:	Paragraph 72

2 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Meryl Audrey Adams who died on 16 April 1999.

3   Her husband predeceased her and she was survived by her six children. In this judgment I will refer to the children by their christian names as they have been referred to in that way in the course of the evidence. Two of them, William and Suzanne, have been notified of the proceedings and make no claim. They in fact have given evidence in the proceedings.

4   Three of them, Peter, Victoria and Debbie are the plaintiffs in the action. The remaining child Jennifer is the defendant. Jennifer was appointed the executrix of the deceased's last will made on 13 September 1991 and she receives the whole of the estate.

5   There was a declaration made by the deceased, which is exhibit 1 in the proceedings, to which I will refer later, in which she gave the reasons for excluding four of her children from the will. The estate is a simple one consisting of the property at 15 Patricia Street, Rydalmere which has a value of $310,000. Jennifer has paid all the administration expenses and legal costs involved in administering the estate.

6   In this matter there are costs that have been incurred on both sides. The defendant's costs are in the order of some $19,000 and the plaintiffs' a little over $25,000. This will mean that either the house will have to be sold to meet the expenses, even those of the defendant, or alternatively, some finance obtained.

7   It is useful to deal with some of the history of the family. The oldest child, Suzanne, was born on 7 March 1947. Peter was born on 10 July 1948. At that stage Shirley Andrews came and lived with the deceased and her husband for some 12 months. She had contact with the family and gave evidence in these proceedings. The daughter, Vicki, was born on 31 January 1962 and Jennifer was born on 13 February 1957. Debbie was born on 4 January 1960.

8   The evidence includes statements by the plaintiffs relating to assaults by the deceased on them. There has been a substantial debate on the evidence before me about these assaults. It is difficult to resolve them all but in part it seems to me that there have been some assaults, but I will come to the details in due course.

9   Vicki suggests in 1971 when she was nine years old her mother grabbed her by the hair, dragged her into the bathroom and held her head and face under a shower.

10   The deceased and her husband, William Adams, moved into 15 Patricia Street, Rydalmere in 1964. In about 1965 - and at that stage Peter was 17 - he left home for a while but following entreaties by the deceased he returned. The youngest son, William, was born in 1966.

11   At about this stage one has allegations by Vicki of her being beaten by her mother, she apparently used her husband's belt to do so. Also at this time it is apparent that Vicki was placed in a psychiatric unit on a few occasions by the deceased.

12   The evidence, of course, is very minimal in respect of matters like this. I do not have the benefit of any papers from the institutions or doctors' reports to find out the truth of the reason why she was so placed. I can only conclude, in the absence of any evidence, it was probably appropriate and Vicki needed some treatment.

13   In the late 1960s Peter and his father constructed a double garage at the property at Rydalmere. This involved the pouring of a concrete slab, erection of a large garage and it seems to have been done with Peter doing a lot of the labour he being supervised by his father. He said he contributed to some of the costs. Part of that structure ultimately became Peter's bedroom to allow his sisters to share the dwelling house.

14   In the late 1960s Peter had a difficulty with the deceased. He had a Studibaker which was apparently his pride and joy. The evidence suggests that his mother, in Peter's absence in Queensland - told a finance company that he had gone to Brisbane and would not be back. According to Peter, the finance payments were up-to-date. However, apparently the vehicle was re-possessed and sold, much to his disappointment.

15   The difficulties with Peter continued in the 1970s. He married his wife Judy and they had a son, Shane. During the course of some surgery that Judy was undergoing, complaints were made by the deceased to the Department of Community Services about the care of Shane by Peter and Judy. That ultimately led to litigation over a year and for that year Shane was looked after by the deceased. That litigation was resolved when Peter and his wife obtained custody from the deceased. According to Peter, it led to a break down of his relationship with his wife and subsequent divorce.

16   That, however, did not ultimately destroy the relationship between Peter and the deceased. The deceased's husband, William John Adams, died on 25 January 1971. Shortly thereafter Vicki left home for a couple of years. In 1973 Suzanne left to marry. She in fact married and moved away to a place near Griffith and slowly started to drift apart from the deceased.

17   In 1974 Vicki returned back to Rydalmere with a caravan, which she placed on the block, and at her mother's suggestion purchased a large cover which covered the caravan and provided some sheltered walkway into the house. Also in that year Debbie left school so that she could get some work and also help look after the children, William and Shane, who are the children of Peter.

18   Vicki moved away in the late 1970s and then came back again with her future husband. In 1978, a week after her 18th birthday, Debbie decamped from the home. She left at night and departed secretly with her boyfriend, who she subsequently married and to whom she is still married. Thereafter her horse riding equipment was disposed of and various statements made by the deceased about Debbie.

19   There was some dispute about whether the deceased had made allegations that Debbie was on drugs to some of her neighbours. It seems to me from the evidence given of an occasion which occurred on Anzac Day that it is fairly clear that she must have done so. Debbie denies ever having been on drugs or such matters.

20   In 1985 Vicki commenced living with Mr Knapp, who she subsequently married, and she had two children by him. In 1991 she also moved to Queensland. She was having difficulty handling favouritism by the deceased of one of her children over the other. She found out, once she moved, that a complaint had been made to the Department of Community Services by the deceased. That had not led to anything but it certainly affected Vicki.

21   The will was made in 1991 and the letter to which I referred was in October 1995. The deceased died on 16 April 1999. Jennifer did not tell her brothers and sisters of the death and they found out afterwards. This apparently was as a result of the deceased's wishes. It is unfortunate as it no doubt intensified what is clearly a very strong feeling of animosity between the various groups of the children.

22 Probate was granted and the proceedings were commenced within time. In applications under the Family Provision Act the High Court has recently 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 applicant '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."

23   As directed by the High Court I turn to consider first the financial position of the various plaintiffs. Peter has very few assets. He is 44, does not appear to have dependants. His assets consist of a block of land in Queensland worth $4,300, a 1984 car worth $1500 and a River Trimaran on which he lives and which he thinks is worth $10,000. He does not have any debts apart from his costs. He works occasionally as a casual driver or receives assistance and normally gets about $190 per week. His expenses are about $147 per week. I will give the detail of his relationship later.

24   He made contributions to the estate of the deceased and they mainly consisted of construction efforts he put into the garage. There were also matters of laying concrete in the driveway. Given the nature of the project it was a fair contribution to the estate.

25   As far as Debbie is concerned she has a home she owns with her husband Rod worth $130,000. She has other assets, a car and furniture, and she has debts of some $61,000. Accordingly, they have a small amount of estate equity of some $40,000. She and her husband's income is about $860 per week and they have a surplus of about $184 per week. Apparently they did not have children or there is no mention of them in the evidence. There does not seem to be any contribution to the estate by Debbie particularly given the age that she had left.

26   Vicki is married and she and her husband, who is aged 72 years, have assets totalling $136,248. She has children who are completing their growing up at this stage. They do not have a substantial income, only $375 per week and that is used totally by their expenses.

27   It is also necessary to have regard to the others having a claim on the bounty of the deceased. In this case the relevant person is Jennifer, who is the beneficiary. Jennifer is an audit clerk with BBC Hardware. She earns $420 per week, she is single never having married, and has no dependants. She owns a Commodore car worth $5,000, furniture of $5,000 and has about two and a half thousand dollars in the bank. She has liabilities of some $18,500. As I mentioned it was she who paid the funeral and testamentary expenses from her own funds.

28   She has also made fairly substantial contributions to the estate. Since 1982 she has paid some insurance and also some rates and outgoings, the detail however has not been quantified. In 1988 she contributed, by way of a loan she took out and repaid, $5,500 for a new kitchen. In 1990 there was a new bathroom of $7,600. In 1996 she and her brother William borrowed moneys to make an extension to the house and ultimately about $30,000 was expended on the house. She has also done painting work on the house. These contributions to what is the only asset in the estate are, of course, quite substantial.

29   It is necessary in this case to have some regard to the relationship between the various plaintiffs and the deceased. It was unfortunate in this case that the evidence on the plaintiffs' part was fairly brief and abbreviated. It is not possible to obtain a full picture of what happened during the bringing up of the children.

30   There has fortunately been some evidence which indicates to some outside observers there were the usual family arguments and disputes. It is also difficult measuring the evidence of the children because there was only one occasion, when one child, observed another child being beaten. In the nature of things it is more likely to have been done away from the other children.

31   In any event, in exhibit 1 the deceased wrote in the following terms to her solicitors setting out the reason why she did not give or make any provision for four of the children. I am only concerned with three of those as Suzanne has not made a claim. That letter is in the following terms:

"I have appointed my daughter Jennifer Anne to be sole executrix of my will. My home is all I own and it has been Jennifer's home all her life.

Jennifer has shared all renovations and updating of this home. She has put many thousands of dollars into this home and for my comfort Jennifer has paid for new kitchen and bathroom.

My youngest son William still lives at home. He and Jennifer are a devoted brother and sister and I know Jennifer will continue to live happily in this home after I die with her brother William for as long as he needs.

The four of my children I have not included, Suzanne has not contacted me for 15 years when she told me I was not allowed see or ring my two grandsons. Not a card for Xmas, Mother's Day. I do not exist as far as she is concerned.

Peter John left home at 17 years of age, would only contact me every couple of years and only then because he would need to work on an old car or such. Peter has never bought me a card or acknowledged me as his mother. Two years ago he said 'The happiest day of his life would be the day I die'.

Victoria left home at 18 years of age telling people she had no mother. She improved for a couple of years, married, had two little boys. I enjoyed them for three years then Victoria moved to Brisbane and said no further contact. She never allowed her children to ring me or acknowledge gifts I sent. It is six years since I have seen my grandchildren.

Deborah left home at 18 years of age. She has never contacted me or sent me a card. She was contacted when I was ill and wished to see her but her answer was 'I don't want to see her, ever'.

None of the above four children have ever paid any money into my home.

Meryl A Adams"

32   The daughter Suzanne's relationship gradually died and it is interesting that she gave as a reason why she never continued to make further contact that she was fairly stubborn. I have a feeling in this case that the deceased was also a fairly stubborn woman.

33   The most difficult situation is with the child Debbie. She left home immediately after her 18th birthday, in other words this was at the first available opportunity she could once she became an adult. She had a boyfriend at that stage and went off with him. As I say she packed her things, departed during the night not telling her mother, although her sister Jennifer came across the process.

34   The reasons given, according to Debbie, were she had received some beatings from her mother. That I am prepared to accept did happen. I think I can accept what Debbie does say on that aspect. It is also perfectly clear that her mother did not approve of her relationship with her future husband Rod. One night after Debbie had come home with a ring, she was asleep in bed and woke to find her mother trying to pull it off her finger. On that occasion she stopped her and gave the ring back to Rod. That was certainly fairly upsetting for Debbie.

35   Anyhow she made up her mind she was going to leave and she did leave as soon as she legally could and she never saw her mother again. There was a call the next day or a week later but she cut herself totally off from her mother.

36 It is necessary to give some consideration to the law on this aspect and it is an area that comes up quite commonly. Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

37 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word “ought” in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.

The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that “many cases suggest that an applicant must show a moral claim …”, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into s.7 of the present Act of the word “ought” in replacement of the words from s.3 of the 1916 Act “as the Court thinks fit” shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word “ought” seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

38   Meagher JA (NSWLR at 570) agreed with Priestley JA.

39   Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:-

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphases added).

40   Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

41   In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
“Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

42 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

43 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

44 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

45   Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs,

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..”

46 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”. They then say “the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for 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.”

47   Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”
“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.
“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

48   In Walker v Walker, (p 27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …”

49   That seems to be a useful summation in determining these matters.

50   In the present case Debbie took the step of deciding to cut off any contact with her mother. I am prepared to assume for these purposes that there was some ill-treatment of Debbie by the deceased, but even so she clearly had an opportunity to start a new life and thus did. It may ultimately have been very wise for her to do so - but the fact of the matter is she then made the decision to no longer have anything further to do with her mother. She knew where she lived and she decided that she would never ever contact her again.

51   She is 42. She has lived some 24 years away from her mother. She admits she made no attempt and had no wish to ever contact her mother again.

52   In these circumstances it would seem to me that it seems quite clear she has decided to cut herself off completely from her mother. In those circumstances I find it hard to see why there should be some provision for her. She seemed to me in the witness box to be a sensible person. She seems to have made a reasonable success of her life and I would have thought she would have been mature enough to have realised as she got older, that perhaps some approach to her mother might have been warranted as her mother reached her elderly years.

53   For these reasons I do not think it is appropriate to make some provision for Debbie.

54   The situation with Peter and Vicki is a little different. Peter had a difficult relationship. I have already mentioned that he thought he was not loved and left home at 17 but ultimately came back to home at the request of his mother. Clearly he also suffered some difficulty particularly, for instance, the incident with his car. His mother seems to have done something which caused him to lose that car.

55   That had an effect on him because ultimately when he went to apply for a housing loan, he made the mistake of giving his mother as a reference. He qualified for the loan and when they checked the personal references the bank said because the references were not satisfactory he could not get a loan.

56   That had some repercussions for some years and accordingly, that certainly was a difficulty caused by the deceased. But even so, he still did not abandon his mother. There were then the difficulties he had with his son Shane. His mother was looking after them, there were disputes about custody and ultimately it was resolved in Peter's favour. It is clear that the deceased looked after the children for some little while.

57   The evidence is very minimal in respect of the circumstances surrounding these events. Even that does not seem to have destroyed Peter's contact with his mother. For instance, in 1991 he stayed with his mother for some months while he was waiting to get a visa to go overseas to work. He had up until then continued to visit the deceased. He kept in contact with the family, particularly his younger brother Billy.

58   There was a final argument in 1991 where there was an argument over a suitcase and some contact with Peter's daughter. Thereafter he did not contact the deceased. He seemed very relieved with this decision he made.

59   His circumstance it seems to me to be somewhat different from Debbie’s. Notwithstanding the difficulties that he suffered he continued to keep in contact with his mother and assist and visit her. Accordingly, I would not think it appropriate to exclude him. The fact that he had no contact from 1991 thereafter is a matter which is taken up in the balance of whether some order should be made.

60   So far as Vicki is concerned, in the history I have given before, she obviously had contact off and on over quite a period. She was in fact living at home for quite a while and in those circumstances she was probably of assistance to her mother.

61   Clearly, as even the note refers to, there was a close contact with Vicki's children, William and Christopher. Unfortunately, Vicki felt she had to move to Brisbane in 1991. She did so and then found out about the complaints made to the Department of Community Services by the deceased and that tended to destroy the relationship. But she, like Peter, has had a fair bit to do with her mother all her life, although she received, according to her, some ill-treatment from her mother when she was young.

62   It seems that this ill-treatment may have happened but may have been due to difficulties with Vicki. There does not seem to have been any complaints about the deceased's treatment of young children as two children of the deceased were quite happy for the deceased to have contact with their young children. Apparently the deceased and Jennifer fussed over them and took good care of them. I would not have thought Vicki's conduct was such that she would be disbarred from obtaining some order.

63   It is also, of course, necessary to look at the relationship between Jennifer and the deceased. There was in evidence a difference between Jennifer and some of her sisters about what Jennifer did to the deceased. Vicki gave evidence of an occasion she witnessed when she was living at home where Jennifer in retaliation struck her mother, knocked her to the ground and there was quite an incident.

64   It is difficult always to see where the truth lies. One of the problems I find with Jennifer's evidence is, she cannot differentiate between making categorical statements when she may not in fact have been privy to all the matters that were going on and for that reason I have to take her evidence with some caution.

65   I tend to accept Vicki's version of this incident. She gave it in a fairly forthright way. It think the relationship between Jennifer and the deceased had its moments, to which even Jennifer agreed. However, it was not something that led to a departure between them and clearly there was a lot of help provided by Jennifer over the years to her mother.

66   Although Vicki was at home at times and William was also at home, a lot of the burden of looking after her mother and taking her to doctors fell on Jennifer. I think that there were difficulties between them but I do not think that they were so substantial that it should really affect Jennifer's claim.

67   The financial situation of the two plaintiffs, Peter and Vicki, has been set out earlier and it is necessary to turn to what is said of how they have been left with inadequate provision for their proper maintenance, education and advancement in life. In this regard I am reminded by what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:-

"Sheller JA (Cripps JA agreeing) said: 'I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s 9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant'."

68   Apart from evidence of their financial situation there is no evidence going to what is commonly referred to as the plaintiff's need. Nothing is suggested that they need by way of education. So far as maintenance is concerned, there is no quantification of what might be an acceptable level of income and the application of discount factors to arrive at some figure for proper provision by way of maintenance, unfortunately rarely done in these matters. Clearly the Court of Appeal considers that if that type of case is to be mounted such evidence should be given. It really remains to provide for some advancement in life.

69   There is the situation with Vicki, who has a husband who is 72, her children have some difficulties and they are still dependant upon her. Peter has very little by way of assets. He has apparently no dependants at the moment and would like at some stage to build a house in Queensland. Whether he will be able to do that, I do not know. However, it certainly is not the proper exercise by a court to provide for a house for a child.

70   There is also, of course, the other factors I have mentioned. They include the substantial work which has been done by Jennifer on the house. She has put in a lot of work and that has no doubt led to its value. The burden of looking after the deceased, who was perhaps a somewhat difficult lady, who probably had a difficult life having to work a number of jobs to support six children after her husband died, fell upon Jennifer.

71   Vicki's position because of her responsibilities as a parent are slightly different to Peter. Accordingly, I do propose to provide a legacy for each of them. Importantly, of course, there is the period that they have both been away from their mother from 1991 and that of lack of contact has to be reflected in the order.

72   Accordingly, I order that out of the estate of the deceased that Victoria Knapp receive a legacy of $45,000 and that Peter John Adams receive a legacy of $35,000. I order the plaintiffs' costs on a party and party basis and that the defendant's on an indemnity basis to be retained or paid out of the estate of the deceased.

73   The costs which I have ordered are the costs of the two plaintiffs, Peter and Victoria. I make no order as to the costs of Debbie.

oOo

Last Modified: 06/22/2001