Alexander v Jansson

[2009] NSWSC 1000

CITATION:	Alexander v Jansson; Jansson v Alexander [2009] NSWSC 1000
HEARING DATE(S):	20 and 21 April 2009
JUDGMENT DATE :	23 September 2009
JUDGMENT OF:	McLaughlin AsJ
DECISION:	3178 of 2008 ELLEN LOUISE JANSSON –v- PERNELLE THERESE ALEXANDER and ORS 1. I order that the time for the institution of these proceedings be extended up to and including 11 June 2008. 2. I order that the property contained in folio identifier 39/753689 (being part of the property known as Gerraween at Niangala, upon which the homestead of Gerraween is located) be designated as notional estate of the late Eric Martin Jansson (“the Deceased”). 3. I order that the Plaintiff receive the aforesaid notional estate of the Deceased absolutely. 4. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the assets of the estate of the Deceased, other than the aforesaid property designated as notional estate. 5. The exhibits may be returned. 2592 of 2008 PERNELLE THERESE ALEXANDER and ORS –v-ELLEN LOUISE JANSSON 1. I make an order as in prayer 1 in the amended summons, deleting therefrom the words “(a) folio identifier 39/753689”, and an order as in prayer 2 in the amended summons. 2. I order that the costs of all parties be paid out of the proceeds of sale of the properties referred to in prayer 1 of the amended summons, other than the property referred to therein as “folio identifier 39/753689”. 3. The exhibits may be returned.
CATCHWORDS:	REAL PROPERTY - conveyancing - property held in co-ownership - statutory trust for sale - application to appoint trustees for sale. SUCCESSION - family provision - claim by mother, aged 93 - whether an eligible person - dependency upon Deceased - proceedings out of time - financial and material circumstances of applicant - rural property held by applicant in co-ownership with Deceased - whether applicant has been left without adequate provision for her proper maintenance - factors warranting making of application - whether applicant should be dispossessed of her home of past 73 years - needs of applicant.
LEGISLATION CITED:	Conveyancing Act 1919 Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Warren v McKnight (1996) 40 NSWLR 390 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES:	Pernelle Therese Alexander (First Plaintiff in 2592 of 2008; First Defendant 3178 of 2008) Jocellin Lee Jansson (Second Plaintiff in 2592 of 2008; Second Defendant 3178 of 2008) Keiran Eric Jansson (Third Plaintiff in 2592 of 2008; Third Defendant in 3178 of 2008) Amber Tracey Jansson (Fourth Plaintiff in 2592 of 2008; Fourth Defendant in 3178 of 2008) Ellen Louise Jansson (Defendant in 2592 of 2008; Plaintiff in 3178 of 2008)
FILE NUMBER(S):	SC 2592 of 2008; 3178 of 2008
COUNSEL:	Mr M Lawson (Plaintiffs in 2592 of 2008; Defendants in 3178 of 2008) Mr G McNally SC (Defendant in 2592 of 2008; Plaintiff in 3178 of 2008)
SOLICITORS:	Atkinson Vinden (Plaintiffs in 2592 of 2008; Defendants in 3178 of 2008) R G O'Halloran & Co (Defendant in 2592 of 2008; Plaintiff in 3178 of 2008)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 23 September 2009

2592 of 2008 PERNELLE THERESE ALEXANDER and ORS –v-ELLEN LOUISE JANSSON

3178 of 2008 ELLEN LOUISE JANSSON –v- PERNELLE THERESE ALEXANDER and ORS

JUDGMENT

1 HIS HONOUR: These are two proceedings in respect to the estate of the late Eric Martin Jansson (to whom I shall refer as “the Deceased”).

2 The Deceased died intestate on 5 July 2005, aged 61. Letters of administration of his intestate estate were granted to his four children, Pernelle Therese Alexander, Jocellin Lee Jansson, Keiran Eric Jansson, and Amber Tracey Jansson, on 23 October 2006. They shared his estate equally, pursuant to the provisions of section 61B(4) of the Probate and Administration Act 1898.

3 The inventory of property discloses that at the time of his death the assets of the Deceased consisted of:

Rural property known as
Pindari at Niangala (estimated value) $770,000
Two thirds interest as tenant in common in
rural property known as
Gerraween at Niangala (estimated value) $1,897,333
Interest in partnership
with Mrs Ellen Jansson (estimated value) $225,326
Bank deposits and investments, totalling $1,650
Furniture and furnishings $2,500

4 The foregoing assets have been transferred to the four children of the Deceased.

5 In calculating the value of the estate available for distribution, the costs of the present proceedings under the Family Provision Act 1982 must be taken into consideration, since the applicant, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the four administrators of the estate, irrespective of the outcome of the proceedings, will normally be entitled to an order that their costs be paid out of the estate.

6 It has been estimated on behalf of the applicant that her costs of the Family Provision proceedings will be $25,000, whilst it has been estimated on behalf of the four administrators that their costs of those proceedings will be in the order of $40,000 (possibly somewhat less, the hearing of both matters together making a dissection of their Counsel’s fees somewhat difficult).

7 Ellen Louise Jansson is the mother of the Deceased. She was born in 1915 and is now aged 94. (I shall refer to her as “Mrs Jansson”.)

8 Mrs Jansson married Martin Hjalmar Jansson in April 1936, and thereupon moved into residence with him at his property Gerraween at Niangala (which he had purchased in his sole name in 1933).

9 Gerraween has been Mrs Jansson’s home for the past 73 years. She desires that it should remain her home for the rest of her life. She still surpervises the feeding of her sheep and cows on the property and other pastoral and rural activities thereon.

10 Mrs Jansson and her husband had five children (two of whom died shortly after birth). When Mrs Jansson’s husband died in April 1970, by his will the property Gerraween was divided into four equal shares, each of Mrs Jansson, her son Eric (the Deceased), her daughter Fay, and her daughter Julie Anne receiving a one fourth share, as tenant in common. Mrs Jansson remained upon the property, and continued the business of breeding cattle and grazing livestock in partnership with her son, the Deceased.

11 Subsequently, the one fourth interest of Mrs Jansson’s daughter Fay was separated from the balance of the property, and became known as Pindari. The remainder of the property, continuing to be known as Gerraween, was then owned as to one third each by Mrs Jansson, the Deceased and her daughter Julie. Subsequently, Julie transferred her interest in Gerraween to the Deceased, some financial assistance in that regard being provided by Mrs Jansson. In consequence, therefore, the Deceased owned a two thirds interest in Gerraween and Mrs Jansson owned a one third interest therein. Gerraween consists of six lots under freehold title, one Crown lease and one occupation permit. The homestead (as well as cattle yards and sheds) is located upon the land comprised in folio identifier 39/753689.

12 The Deceased returned to live at Gerraween in 1980 after his marriage broke down. He continued to reside with Mrs Jansson in the homestead from 1980 until 2002. Mrs Jansson expended her own money, in an amount of $9,000 (which she had inherited from her own mother) upon improvements to Gerraween.

13 In 1990, Mrs Jansson’s daughter Fay transferred her interest in the property Pindari to the Deceased, who subsequently, in 2002, departed the homestead at Gerraween in which he had been residing with his mother, and removed to the residence at Pindari.

14 By summons 2592 of 2008 filed on 1 May 2008 the four children of the Deceased (who, in consequence of succeeding to the intestate estate of their father, have conjointly become co-owners as to a two thirds interest in Gerraween, as tenants in common with their grandmother, Mrs Janssen, who retains a one third interest therein) claim an order for the appointment of statutory trustees for sale of the entirety of Gerraween, pursuant to section 66G of the Conveyancing Act 1919.

15 The effect of such an order would be to deprive Mrs Jansson, at the age of 94, of her home of the past 73 years. It was Mrs Jansson’s evidence that on a number of occasions she had been told by her son, the Deceased, that she could stay at Gerraween for the rest of her life.

16 Apart from her one third interest in Gerraween, Mrs Jansson has savings totalling about $10,000. Her income consists of the age pension, in an amount of about $500 a fortnight. Her outgoings and expenses also total about $500 a fortnight, and include the cost of food and household supplies, insurance, telephone, fuel, clothes, as well as drenching expenses, fodder purchases and veterinary expenses in respect to the cattle and sheep upon of the property.

17 Shortly after being served with the foregoing summons, Mrs Janssen sought legal advice, and on 11 June 2008 filed summons 3178 of 2008. The Defendants named in that summons are the four children of the Deceased, who are the Plaintiffs in proceedings 2592 of 2008. By her summons Mrs Jansson seeks substantively an order for provision for her maintenance, education and/or advancement in life pursuant to section 7 of the Family Provision Act and an order for the extension of time in which to make that claim. (Such latter order is necessary since her proceedings were not instituted within the period of eighteen months from the date of the death of the Deceased, as required by section 16 (1) of the Family Provision Act.)

18 The two proceedings were heard together, and in each an order was made that the evidence in the one proceeding, so far as is relevant, be treated as evidence in the other proceeding.

19 Although the proceedings under section 66G of the Conveyancing Act had originally sought relief by way of an order that the property be held on statutory trust “for sale and/or partition”, upon application by the Plaintiffs in those proceedings at the outset of the hearing, I granted leave to those Plaintiffs to amend the summons by deleting from prayers 1 and 2 therein the words “and/or partition”. In consequence, those Plaintiffs now seek an order that Gerraween be held on statutory trust only for sale.

20 It is appropriate that I should first deal with the claim by Mrs Jansson for an order for her provision out of the estate of the Deceased. The outcome of that claim will be determinative of the application by her grandchildren for relief under section 66G of the Conveyancing Act in respect of Gerraween. Mrs Janssen consents to the balance of the real property of the Deceased held in co-ownership, after any order for provision is made in her favour, being held on statutory trust for sale.

21 A considerable quantity of evidence (by way of oral evidence and photographs) was given on behalf of the beneficiaries concerning access to Pindari. It was the assertion of the beneficiaries that the only points of access to Pindari were by way of Gerraween or through a State Forest under an occupation permit.

22 It was submitted on behalf of the beneficiaries that the sale of the property in co-ownership, being Gerraween, should be interdependent upon the sale of the property Pindari. The reason for that submission, as I understood it, was the alleged difficulty of access to Pindari. I do not understand that any such difficulties of access would require that access to Pindari should be through Mrs Jansson’s homestead (or the curtilage thereto) on Gerraween. In any event, Mrs Jansson consents to an easement of right of way being granted over the land in folio identifier 39/753689, to overcome any problems of access.

23 It will be appreciated that Pindari is not held in co-ownership, but was held by the Deceased alone and has passed to his four children upon intestacy. Mrs Jansson has no interest in Pindari. I can see no reason whatever for the sale of the remainder of Gerraween, held in co-ownership, to which the beneficiaries have established an entitlement to the appointment of statutory trustees for sale and to which appointment Mrs Jansson consents, should in any way be interdependent upon the sale of Pindari, which is held by the four beneficiaries alone, and in which Mrs Jansson has no interest. It is entirely a matter for the beneficiaries what they do about Pindari. So far as the Court is concerned, the jointly owned property (apart from that lot of Gerraween upon which the homestead stands) will be subject to the appointment of statutory trustees for sale. Of the net proceeds of that sale, Mrs Jansson will of course be entitled to one third, and the beneficiaries will be entitled to the remaining two thirds.

24 Mrs Jansson asserted that she was an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she had been a member of the same household as the Deceased and had been partly dependent upon the Deceased. That membership of the same household obtained from the birth of the Deceased on 5 June 1944 until he left home in 1966 at the age of about 22, and again from 1980 until 2002, while he was residing with Mrs Jansson on the homestead at Gerraween. Further, throughout the latter period while they had been living together, Mrs Jansson asserted that she had been partly dependent upon the Deceased, that dependency including her occupation of the residence on Gerraween.

25 It should here be recorded that the Plaintiff, although in reasonable health for her advanced years, was not in attendance at the hearing. Although notice had been given requiring her attendance for cross-examination upon her affidavits, I allowed (in the face of opposition from the beneficiaries) those affidavits to be read. Indeed, the only oral evidence at the hearing was relatively short evidence of Jocellin Lee Jansson the Second Defendant, and of Mrs Fay Studte a daughter of Mrs Jansson and sister of the Deceased. Mrs Studte, who assists her mother in her farming activities and in her everyday life, spends up to six days a week with her in Gerraween.

26 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties and a chronology from Counsel for Mrs Jansson. Those documents will be retained in the Court file.

27 There can be no dispute that Mrs Jansson was a member of the same household as the Deceased, for a total period of about 42 years. From the time of death of her husband in April 1970 Mrs Jansson relied on the Deceased in the business which was conducted by them in partnership, and also for assistance with her personal needs and activities. The tasks which the Deceased performed for his mother, were many and varied, and are set out in paragraphs 11 and 12 in Mrs Jansson’s affidavit of 5 June 2008 and in paragraphs 6 – 10 in her affidavit of 25 June 2008. Those instances of dependency included supervision, maintenance and physical activities involved in the partnership conducted by Mrs Jansson and the Deceased in the business of Hereford breeding and livestock grazing; sale of cattle; Mrs Jansson and her son maintained a joint account with the Rural Bank (later State Bank) at Tamworth, conducted in their joint names, into which moneys from the sale of cattle were deposited, and from which household and property expenses were paid. Mrs Jansson said that she relied on the income from the sale of cattle by the Deceased in order to make ends meet on the property.

28 Mrs Jansson said that the Deceased carried out most of the physical activities relating to the cattle, the sheep, the maintenance and use of machinery, the sale of livestock, farming work (for example, driving a tractor, sowing crops, spreading superphosphate). She said that without the Deceased performing that work, she would not have been able to carry on the business. She said that the Deceased also performed for her such domestic work as: chopping and stacking firewood, mowing the lawn, maintaining the house by cleaning out gutters, frequently cooking, purchasing groceries and performing other shopping for Mrs Jansson; as well as driving her to appointments in town, since she did not hold a driver’s licence.

29 In short, Mrs Jansson from her late middle age into her old age was very reliant and dependent upon the Deceased in the practical aspects of her everyday life, as well as being physically and practically dependant upon him in the conduct of their partnership business.

30 I am satisfied that Mrs Jansson was dependent upon the Deceased in respect to the foregoing matters of personal assistance, and, further, that she was dependent upon him in relation to the earning of partnership income, and the upkeep of the rural property. I am satisfied that Mrs Jansson was at least partly dependent upon the Deceased from the period after her husband’s death in 1970 and especially during the period from 1980 until 2002 (a period when Mrs Jansson was aged from 65 to 87).

31 It follows, therefore, that Mrs Jansson is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings.

32 I have already observed that the proceedings were not brought within the period of eighteen months from the death of the Deceased, prescribed by section 16 (1) of the Family Provision Act. In order to comply with the requirement of that subsection, the proceedings should have been instituted no later than 5 January 2007. Since the summons was filed on 11 June 2008, Mrs Jansson is 17 months out of time. However, subsection (2) of that section gives to the Court a discretion to allow the proceedings to be brought after the expiration of the prescribed period.

33 In Warren v McKnight (1996) 40 NSWLR 390, Hodgson J (as he then was) referred to the following four factors as being relevant to the exercise of the discretion of the Court to extend time in a claim under the Family Provision Act.

(a) Sufficiency of explanation for delay.
It was the evidence of Mrs Jansson that until she sought legal advice very shortly after being served with the summons in proceedings 2592 of 2008, she was unaware of her right to make a claim under the Family Provision Act and was unaware of any limitation period in respect to such a claim.

The Plaintiff until that time believed (and had been led by the Deceased to believe) that she would be able to live in her home at Gerraween until she died.

(b) Prejudice to beneficiaries.
There is no evidence of any prejudice occasioned to any of the four beneficiaries as a result of Mrs Jansson’s claim being brought out of time

(c) Unconscionable conduct on behalf of the Plaintiff.
There is no suggestion of any unconscionable conduct on the part of Mrs Jansson.

(d) Strength of the Plaintiff’s case.
It has been submitted on behalf of Mrs Jansson that her claim to be enabled to continue to reside in her home of the past 73 years, which she had shared with the Deceased for 42 years, is a strong one. I am in agreement with that submission.

34 I am satisfied that this is a case in which it is appropriate that the Court should exercise its discretion to extend time, in the event that the Plaintiff otherwise establishes an entitlement to an order for provision out of the estate of the Deceased.

35 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance.

36 The High Court in Singer v Berghouse (at 209 – 210) said that the determination of the first stage,

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.

37 I am satisfied that Mrs Jansson, who receives nothing upon the intestacy of her son, and who now, consequent upon that intestacy, is to be deprived of her home, has been left without adequate provision for her proper maintenance.

38 The claim of Mrs Jansson must be approached in the light of any competing claims upon the bounty of the Deceased. The only other persons who have such competing claims are his four children, who upon his intestacy are entitled to receive the entirety of the Deceased’s estate.

39 No evidence has been placed before the Court concerning any competing claim on behalf of the beneficiaries. Whilst they are the statutory beneficiaries of the intestate estate of the Deceased, and whilst, as children of the Deceased, each is an eligible person in relation to the Deceased (each being such under paragraph (b) of the foregoing definition), nevertheless, none of those four beneficiaries has placed before the Court any evidence concerning her or his financial circumstances.

40 The competing claim of those four persons is grounded upon their status as children of the Deceased, and upon their statutory entitlement pursuant to section 61B(4) of the Probate and Administration Act to receive the entirety of the estate of the Deceased upon his intestacy.

41 Their competing claim is not grounded upon the financial and material circumstances of any of those four persons, or upon any specific recognition of any or all of them by the Deceased as being appropriate objects of his testamentary beneficence.

42 I am not persuaded that the competing claim of any or all of the four children of the Deceased is such as to have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.

43 It will be appreciated that, since she is an eligible person only within paragraph (d) of the definition of that phrase, it is necessary for the Plaintiff to establish, pursuant to section 9 (1) of the Act, that there are factors which warrant the making of her application.

44 Such factors were described by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being

factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

45 It has been submitted on behalf of Mrs Jansson that the factors which warrant the making of her application include:

(a) the fact that Mrs Jansson and the Deceased resided together in the homestead for 22 years from 1980.
(b) the various statements made by the Deceased that his mother would be enabled to live on the property until she died.
(c) the contributions, physical and financial, which Mrs Jansson made to the property, to its improvement and its upkeep, and to the partnership business which was conducted thereon by herself and the Deceased.
(d) the fact that Mrs Jansson is a co-owner of the property, being a tenant in common as to one third thereof.
(e) the fact that, if she cannot obtain an order for provision, Mrs Jansson will be deprived of her residence in her home of 73 years.

46 I am in agreement that the foregoing matters constitute such factors which warrant the making of Mrs Jannson’s application.

47 It was submitted on behalf of the four grandchildren that no provision should be made for Mrs Jansson out of the estate of the Deceased. It was seriously suggested on behalf of those beneficiaries that the Plaintiff at the age of 94 should find alternative accommodation. It was also submitted that the fact that Mrs Jansson wants to stay in her home of more than 70 years does not mean that she needs to stay there.

48 Such lastmentioned submission on the part of the beneficiaries fails to appreciate the practical realities of requiring the Plaintiff to relocate. I consider that there is certainly a need that a lady of great and venerable age should not be displaced from an environment not only with which she is familiar and comfortable, but in which she has lived for more than 70 years. Mrs Jansson’s need is for security and flexibility in her accommodations – security to remain in her home of the past 73 years for as long as her health and physical condition allow her to do so, and flexibility to alter the nature of her accommodation, depending upon any changes in her physical circumstances.

49 I have already recorded that I am satisfied that Mrs Jansson is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Act; that there are factors which warrant the making of her application; and that this is a case in which the discretion of the Court to extend time should be exercised.

50 I am entirely satisfied that it is appropriate in the circumstances of this case that Mrs Jansson should receive absolutely the lot upon which the homestead of Gerraween is located. Since that lot, comprised in folio identifier 39/753689, has been transferred to the four beneficiaries, I propose to make an order designating that lot as notional estate of the Deceased.

51 The balance of Gerraween will remain in co-ownership of Mrs Jansson as to one third and of the four beneficiaries as to the remaining two thirds as tenants in common.

52 I have already observed that Mrs Jansson does not object to an order for the appointment of statutory trustees for sale being made in respect to the balance of Gerraween. The proceeds of sale of the balance of Gerraween, as well as of Pindari (which has an estimated value of $770,000), if the beneficiaries choose to sell that property also, will be more than adequate to meet the costs of the present proceedings.

53 Accordingly I make the following orders:

3178 of 2008 ELLEN LOUISE JANSSON –v- PERNELLE THERESE ALEXANDER and ORS
1. I order that the time for the institution of these proceedings be extended up to and including 11 June 2008.
2. I order that the property contained in folio identifier 39/753689 (being part of the property known as Gerraween at Niangala, upon which the homestead of Gerraween is located) be designated as notional estate of the late Eric Martin Jansson (“the Deceased”).
3. I order that the Plaintiff receive the aforesaid notional estate of the Deceased absolutely.
4. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the assets of the estate of the Deceased, other than the aforesaid property designated as notional estate.
5. The exhibits may be returned.
2592 of 2008 PERNELLE THERESE ALEXANDER and ORS –v-ELLEN LOUISE JANSSON
1. I make an order as in prayer 1 in the amended summons, deleting therefrom the words “(a) folio identifier 39/753689”, and an order as in prayer 2 in the amended summons.
2. I order that the costs of all parties be paid out of the proceeds of sale of the properties referred to in prayer 1 of the amended summons, other than the property referred to therein as “folio identifier 39/753689”.
3. The exhibits may be returned.
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