Alcock v Cooper - [2010] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Summary Jurisdiction: Civil)
ALCOCK v COOPER & ORS
[2010] SASC 167
Judgment of Judge Lunn a Master of the Supreme Court
2 June 2010
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Claim under Inheritance (Family Provision) Act 1972 by 70 year daughter of deceased - small estate $271,000 - summary determination under 6R 312(12) and (12A) - evidence of plaintiff as to her contributions to the deceased's assets not accepted - no additional provision justified for plaintiff - action dismissed.
Inheritance (Family Provision) Act 1972 (SA), referred to.
Bowyer v Wood (2007) 99 SASR 190, applied.
Re Coventry [1979] 3 All ER 815, considered.

ALCOCK v COOPER & ORS
[2010] SASC 167
Reasons on the summary determination of a claim under Inheritance (Family Provision) Act 1972 (“the Act”)
JUDGE LUNN:
Background

Plaintiff, who was born on 25 September 1939, was the only child of the marriage of Gwendoline May Fitzgerald (“the deceased”) to Robert McCue. In 1944 the deceased divorced Robert McCue and in 1947 she married Geoffery Hagger. The only child of that marriage was the first defendant, who was born on 18 September 1948. In 1960 the deceased divorced Hagger.
The plaintiff commenced work when she was 15 and the deceased largely controlled her wages. In 1958 and 1962 the plaintiff had daughters by her boyfriend Angelo Simionato, but she never married him or lived with him. Simionato paid maintenance of an unspecified amount for some time to the plaintiff. The plaintiff and her two young children were living in a household with the deceased, the first defendant and on some occasions until 1960 Geoffrey Hagger. The plaintiff and the deceased were both employed and the first defendant assisted in household duties and in caring for the plaintiff’s children. The deceased controlled the household finances.
On 21 December 1963 the plaintiff married Douglas Smith and she and her two children then left the deceased’s household. The plaintiff had three further children by Douglas Smith. She separated from him in 1966 and temporarily moved back to live with the deceased and the first defendant. The deceased gave up her employment to look after the plaintiff’s children while she was living with them. The plaintiff resumed cohabitation with Smith, but again separated from him. After this separation she did not return to live with the deceased.
In 1962 the deceased entered into an agreement to purchase a block of land at Port Willunga (“the Willunga land”) for $636. This amount was apparently paid by instalments over several years. In July 1966 this land was transferred to the deceased.
In 1967 the deceased commenced a relationship with Steven Fitzgerald and married him on 14 June 1974. He had two children from a previous marriage who are the second and third defendants. Shortly after this marriage, Fitzgerald purchased a house at Hackham in his own name which became the matrimonial home and was where the deceased resided for the rest of her life.
On 23 September 1973 the plaintiff’s husband, Douglas Smith, was killed in a car accident. In 1974 she began a relationship with Ronald Alcock whom she married on 21 February 1976. The plaintiff had her sixth child, Betina, who was born on 29 April 1975, by Alcock. As a result of gifts from Alcock’s father, in 1980 the plaintiff bought a property at Aldinga on which she subsequently erected a house in which she and her family lived. The plaintiff also became involved in various businesses.
In about 1988 the plaintiff’s businesses got into serious financial difficulties which ultimately led to the sale of all of her real property and her becoming bankrupt in 1989. At this time she suffered serious ill-health and separated from Alcock. She then obtained Social Security payments which have continued ever since and she has apparently not ever worked again. From about 1988 to 1990 she lived in a caravan with Betina, but then obtained rental Housing Trust accommodation at Strathalbyn.
In October 1988 the deceased and Fitzgerald consulted Andrew Hill, a solicitor, who prepared wills for them, which they signed on 27 October 1988. By that will the deceased left her Willunga property to the first defendant. She left the rest of her estate to her husband, but if he pre-deceased her then it was to be divided equally between the plaintiff and the three defendants. Her husband made a similar will leaving his estate to the deceased, but if she pre‑deceased him, then equally between all of the defendants and the plaintiff. On 21 June 1989 both the deceased and her husband executed enduring powers of attorney appointing the first defendant to be their attorney.
In May 1992 the deceased sold the Willunga land for $19,000 and contracted to purchase a holiday house at Port Vincent (“the Port Vincent property”) for $40,500. She had this Port Vincent property transferred into the joint names of herself and the first defendant as joint tenants. The first defendant did not contribute any monies to its purchase price. It would seem the deceased used the proceeds of the sale of the Willunga land for the purchase of the Port Vincent property, but it is unknown from where she obtained the balance of the monies needed to purchase it.
In late-1995 the deceased and her husband again consulted Mr Hill about preparing new Wills. The deceased signed what was to be her last will on 16 January 1996. She appointed the first defendant to be her executrix. She left the whole of her estate to her husband, but if he should pre-decease her, she left her household and personal effects to the first defendant and provided that the residue was to be divided as two fifths to the first defendant and one fifth to each of the plaintiff and the second and third defendants. Her husband made another will in similar terms at about the same time.
Steven Fitzgerald had been suffering from cancer for some time. He died on 6 December 1996. His whole estate, including the Hackham house, passed to the deceased.
In 2005 the plaintiff reconciled with her husband, Ron Alcock. In about July 1997 Ron Alcock and his daughter Betina jointly bought a block of land in Strathalbyn for $24,000. On 14 January 1998 Ron Alcock transferred his interest in that property to his daughter Betina for no consideration. She then borrowed $99,200 on the security of this property and used it to pay for a new house to be erected on the land. Betina then rented that house to the plaintiff and her husband and they continue to reside in it.
The deceased died on 15 September 2008 aged 86 years. On 5 December 2008 probate over her will dated 16 January 1996 was granted to the first defendant. The major asset in the estate was the Hackham house which was valued for probate purposes at $252,832. The Port Vincent Property passed to the first defendant by virtue of her joint tenancy in it. On 22 May 2009 the plaintiff instituted this action claiming provision for herself out of the estate of the deceased.
The net value of the deceased’s estate for distribution is about $271,000, less whatever legal costs are to be paid by the estate. In round figures, this means that under the terms of the deceased’s will each of the plaintiff and the second and third defendants will receive about $54,000 and the first defendant about $108,000. Additionally, the first defendant has received the deceased’s interest in the Port Vincent property. The only evidence of its value was the government valuation of $141,000. Under the deceased’s will the first defendant also received the deceased’s personal and household effects, but she has given some of these, of unstated value, to the plaintiff.
Summary determination
This action is being summarily determined under the new 6R 312(12) and (12A) of the Supreme Court Civil Rules 2006. That requires that I proceed with a primary object of the minimisation of costs and the expeditious but just resolution of the action. The plaintiff’s counsel submitted that she should be given a legacy of $95,000.[1] Thus the dispute is whether, subject to the payment of legal costs, the plaintiff should receive a legacy of about $54,000 or $95,000, ie. a dispute about $41,000.[2]
[1] If the plaintiff’s evidence and contentions were wholly accepted, it is likely she would be allowed such a legacy.
[2] Even for this summary determination, the total solicitor and client costs of three separately represented parties is likely to be at least $20,000-$30,000 and possibly more.
The evidence
By 6R 312(12A) I am not bound by the rules of evidence in determining this matter. I ignore the evidence which is not logically probative of any matter in issue. As the rules against hearsay are not applicable, I am able to give, and do give, some weight to what the deceased and her husband told to their solicitor, Mr Hill, about the plaintiff and the first defendant.
The summary determination was conducted by each party and Mr Hill filing an affidavit setting out their evidence-in-chief. The plaintiff and the first defendant were each cross-examined on their affidavits. There was no request to cross-examine Mr Hill, the second or the third defendants on their affidavits and I accept their contents.
The plaintiff and the first defendant are extremely antagonistic towards each other and that coloured much of their evidence. Each sought to impeach the credit of the other by various allegations of discredible conduct, such as that each had anonymously and wrongly reported the other to Centrelink for alleged Social Security frauds. Except so far as it is dealt with below, I do not need to go into these allegations and in many instances it is impossible to resolve them on the evidence which is before me. Except as stated, I ignore them in reaching my conclusions.
The plaintiff’s evidence
The defendants challenged the veracity of much of the plaintiff’s affidavit, and particularly about what she had said and done in relation to the deceased where there was no corroborative evidence of it. While uncorroborated evidence of a witness can be accepted about what was said and done by a person now deceased, such evidence is to be treated with caution: Cross on Evidence [15,150].
The plaintiff presented as a dominating and forceful person. She has convinced herself that she has been defrauded of her rightful inheritance from the deceased by the actions of the first defendant, Steven Fitzgerald, and apparently of the deceased herself. I did not find her to be an impressive or convincing witness. In a number of instances where her assertions on contested matters could be tested against other evidence, I found them to be unreliable, which strongly suggests that her evidence on other matters where there is no other evidence on the topic may also well be unreliable.
Documents dated 10 March 1987 and 15 September 1989 were put to the plaintiff in cross-examination as evidencing loans to her of $2,000 and $1,000 respectively. Her evidence in explanation of them was contradictory and implausible. In paragraph 47 of her affidavit she said that neither document was signed by her. In cross-examination she admitted that she had signed the 1987 document. In her affidavit she said that she had re-paid these loans, but in her cross-examination and re-examination she denied all knowledge of the $1,000 loan. Whether these loans were re-paid by her or not is not of great importance in the resolution of her claim, but it seems unusual that these agreements were preserved in the papers of the deceased and her husband if they were of historical significance only.
In her cross-examination the plaintiff said that she always had a good relationship with Steven Fitzgerald, which did not change. However, that was contrary to paragraph 46 of her affidavit which said it changed after her bankruptcy. Her attempt to explain away the contradiction between that evidence and her affidavit was unconvincing.
Accordingly, on the balance of probabilities I do not accept the plaintiff’s evidence about what was said and done between herself and the deceased unless it is inherently plausible or corroborated by other evidence.[3]
[3] Reference should also be made to the findings below about the Willunga property and the landscaping costs.
The Willunga property
A major part of the plaintiff’s case was that she had contributed to the deceased’s purchase of the Willunga property and that it was a joint purchase by them both. I do not accept her evidence that she was a joint purchaser with the deceased in the original agreement for its purchase. As it was not disputed by the first defendant, I accept that some small amount of money received by the plaintiff for child endowment was applied for an initial payment on the purchase of this land. However, this was at a time in about 1962 when the deceased was managing the whole of the finances for the household of herself and the plaintiff and her children. While some of the plaintiff’s child endowment was applied towards part of the purchase price, I do not accept that it was specifically appropriated for that purpose. Rather, all or most of the plaintiff’s income was being paid to the deceased who was using those monies to meet household expenses generally. I am not satisfied that this payment by the plaintiff was specifically for the Willunga property rather than a payment into the pool of money from which the deceased paid the household expenses. Likewise, the plaintiff paid maintenance which she received from Angelo Simionato to the deceased, but it was only belatedly in her cross-examination by the second defendant that she first alleged that these maintenance payments were specifically appropriated to the continuing instalments being paid for the Willunga land. I do not accept that those maintenance payments were specifically appropriated for the purchase of the Willunga land rather than paid into a pool from which the deceased paid the household outgoings. There was no evidence about the amount of the child endowment which the deceased had received and which was allegedly used to pay for the land. It was likely to have been small and not a significant part of the purchase price of $636. The first defendant alleged that the deceased had re-paid this child endowment to the plaintiff. The plaintiff denied this. I am not prepared to find that it was re-paid, as this is inconsistent with the plaintiff paying most of her income to the deceased for her to manage the household finances.
I do not accept the plaintiff’s evidence about the statements she alleges the deceased made to her about her having an interest in the Willunga property and about it being left to her in her will. Such allegations are inconsistent with what the deceased did in relation to this land. In her 1988 will she left it to the first defendant. The plaintiff said this was because she was about to go bankrupt. She claimed that the first defendant understood that she had a half interest in this land, but there is no evidence that either the plaintiff or the deceased ever told the first defendant that if she received the land under the deceased’s will she would be expected to account to the plaintiff for it. The plaintiff’s version of events is also inconsistent with the deceased having put a half interest in the Port Vincent property into the name of the first defendant. The deceased said nothing to Mr Hill in the instructions for her wills which were consistent with the plaintiff having made any significant contribution to the purchase of the Willunga land.
In relation to the contents of her 1988 will, the plaintiff alleged that the deceased was dominated by Steven Fitzgerald, and thus could not give effect to what she knew to be her moral responsibility to give the plaintiff a substantial part of the Willunga land. I accept the evidence of Mr Hill that in his dealings with the deceased and Steven Fitzgerald he considered the deceased to be acting of her own free will. He was concerned to ensure that the deceased was acting of her own free will in making these wills. After the death of Steven Fitzgerald the deceased had plenty of opportunity to alter her 1996 will, but she did not do so.
Accordingly, I find that the plaintiff did not make any significant contribution to the deceased’s acquisition of the Willunga property or that the deceased ever told her that she would obtain an interest in it.
Other contributions by the plaintiff
I do not accept paragraph 28 of the plaintiff’s affidavit that in 1974 she and her then husband purchased for the deceased and her husband various materials such as moss rocks, plants, trees, shrubs and brush fencing and installed them without any financial reimbursement, which considerably increased the value of the deceased’s home. A document in the handwriting of Steven Fitzgerald produced by the first defendant suggests that at least some of these materials were paid for by him. I prefer the evidence of the first defendant that the erection of the brush fence was carried out by her husband.
The plaintiff asserted that her paying her wages, child endowment and maintenance payments to the deceased from when she was 15 until she married Douglas Smith in 1963 were financial contributions to the deceased which enabled her to build up her assets. I do not accept this. As mention above, the deceased ran the whole household from a pool of monies to which the plaintiff contributed. Out of this pool came her living expenses and, in the latter period, those of her first two children. On one occasion in about 1966 the deceased gave up work for a period to look after the plaintiff’s children while the plaintiff continued to work. Apart from the Willunga property, which is dealt with above, the deceased did not apparently have any significant assets at the time of her marriage to Steven Fitzgerald. Apart from the Port Vincent property, most of her assets at the time of her death were those inherited by her on the death of Steven Fitzgerald.
Accordingly, I find on the balance of probabilities that the plaintiff did not contribute in any significant way to the acquisition of the assets of the deceased.
The plaintiff’s need of provision
The plaintiff suffers from asthma, high blood pressure, partial deafness, diverticular disease, irritable bowel syndrome, arthritis in her spine, knees and feet, type 2 diabetes and severe migraines. She takes numerous medications and has had frequent hospitalisation over the past few years. She is blind in her right eye and uses a walking stick. She requires the services of her husband as her carer to perform a number of tasks. However, she has an unrestricted driving licence and apparently still drives a car. No prognosis was given about her likely future health.
The plaintiff and her husband own a 1994 Toyota Celica car of unknown value. They also own a 1986 Commodore which is unroadworthy and unregistered. They have no savings apart from $10,000, which is the balance of the plaintiff’s husband’s superannuation and which is earmarked for the cost of their funerals.
The plaintiff and her husband continue to live in the house owned by their daughter Betina. They pay rent of either $300 or $330 per week, but receive a rent allowance to augment their pensions. There was no suggestion that this arrangement could not continue indefinitely or until the plaintiff’s health deteriorated to an extent where she would require greater assistance than her husband could give her. When, if ever, this might occur is unknown. There was no evidence of what the likely cost might be if the plaintiff had to go into a nursing home or the like.

The plaintiff and her husband each receive a Centrelink Pension of $453.30 per fortnight and in addition her husband receives a Carer’s Allowance of $105.80 per fortnight. It is unclear on the evidence whether these amounts include the rent allowance. She has a credit card debt of $5,000. She has private health insurance which costs her $104 per fortnight.
Financial positions of the defendants
The first defendant is in poor health. She receives a Disability Pension of $485.60 per fortnight and an amount of approximately $1,000 per annum for work done for her son. She jointly owns her home with her husband, which is worth about $350,000. She owns the Port Vincent property which is worth about $141,000. She and her husband jointly own cars, a caravan and a boat worth approximately $32,000. She has superannuation worth approximately $47,000. She has credit card debts of about $3,000.
The second defendant is divorced, unemployed and in ill-health. Her income is about $12,000 per year. She owns an unencumbered home unit worth about $340,000 and a 1994 car valued at about $2,000. She does not have any superannuation.
The third defendant is a single person working part-time as a handyman and earning about $300 per week, although he hopes to supplement that by future additional work as a handyman. He owns a house worth approximately $360,000, with a mortgage of about $64,000. He owns a van worth about $20,000.
Conduct of the plaintiff
The defendants contended that various conduct of the plaintiff should be held against her in assessing her claim under the Act. They asserted that her present lack of assets resulted from her lifestyle choices and that she had not had a good relationship with the deceased. I need not deal with these matters, as on my findings made above, the plaintiff has not made out a case for any increased provision from the deceased’s estate. Without going into the extensive evidence on the topic, the likelihood is that the quality and extent of the relationship between the plaintiff and the deceased varied from time to time; there were occasions on which they were estranged, but on other occasions the plaintiff behaved as a dutiful daughter to the deceased.
The law
The defendants cited Re Coventry[4] where Goff LJ said that applications in smaller estates should be discouraged. However, this does not mean that such claims do not have to be dealt with according to their merits. It does not appear there is any equivalent in England of 6R312(12) and (12A). The small size of an estate may well be mainly relevant to the question of costs.[5]
[4] [1979] 3 All ER 815 at 820.
[5] De Groot “Family Provision Australia” Second Edition 27-29.
The question of whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life is not merely to be considered on the basis of the needs of the plaintiff, but must be assessed against the background of any moral claim that the plaintiff and each of the defendants might have on the estate of the deceased and in the light of all relevant factors, including the size of the estate.[6] The provision made by the deceased in her will will enable the plaintiff to have a moderate “nest egg” to assist her financially in meeting her future needs. There is no evidence that she has a need of any particular greater amount for any specified purpose.
[6] Bowyer v Wood (2007) 99 SASR 190 at 201.
It was conceded that the financial position of the plaintiff was not as good as that of each of the defendants, although none of the defendants could be categorised as financially well-off. The first defendant over the years had a much closer relationship to the deceased than did the plaintiff and provided much greater assistance to her. Hence the deceased had a greater moral obligation to her. The second and third defendants did not receive anything from their father’s estate and most of the deceased’s estate came from what she inherited from their father. There is no legal principle that parents must treat all of their children equally in their wills. The plaintiff has not shown that her financial needs or the deceased’s moral obligation to her should have caused the deceased as a wise and just testatrix to have made any greater provision for her in her will than she did.
Accordingly, the plaintiff’s claim for provision under the Act is dismissed. I will hear the parties on the question of costs.