Aliza Alice Sassoon v Adrian Rose
[2012] NSWSC 1554
•14 December 2012
Supreme Court
New South Wales
Medium Neutral Citation: Aliza Alice Sassoon v Adrian Rose [2012] NSWSC 1554 Hearing dates: 5 December 2012 Decision date: 14 December 2012 Jurisdiction: Equity Division Before: Macready AsJ Decision: (1)Proceedings dismissed.
(2)The plaintiff to pay the costs of the defendant in the proceedings.
Catchwords: SUCCESSION - family provision and maintenance - former wife of deceased seeking provision - property settlement granted after divorce - applicant a beneficiary of mother's estate - no factors warranting making of application established Legislation Cited: Family Provision Act 1982
Succession Act 2006Cases Cited: Basto v Basto (NSWSC, Hodgson J, 8 September 1989, unreported)
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
De Winter v Johnstone (NSWCA, 23 August 1995, unreported)
Fancett v Ware (NSWSC, Needham J, 3 June 1986, unreported)
Fulop Deceased, Re (1987) 8 NSWLR 679
Guskett (deceased), Re (1947) VLR 211
Massie v Laundy (NSWSC, Young J, 7 February 1986, unreported)Category: Principal judgment Parties: Aliza Alice Sassoon (plaintiff)
Adrian Rose (defendant)Representation: Mr T Bors (defendant)
John Denes (defendant)
File Number(s): 2011/82496
Judgment
This is an application under the Succession Act 2006 in respect of the estate of the late Isaac Joseph Beder who died on 24 August 2009 aged 77 years.
The plaintiff is the deceased's former wife, they having married in 1965 and divorced on 5 March 1981. The deceased and the plaintiff had 5 children together born between 1966 and 1976. They were Roxanna, Michael, Joel, Regina and Sarah.
Michael Beder commenced his own proceedings in this Court for further provision out of the estate. That claim has been compromised and orders have not yet been made. Notice has been given to the other children of the deceased and none of them have made their own claim. Accordingly, this is a claim only by the plaintiff, the deceased's former wife.
The last will of the deceased
The deceased made his last will on 30 April 1986 and in that will he gave the residue to be divided equally between his three children, Roxanna, Joel and Michael. In a codicil made 16 April 1988, he made a bequest of his home unit at Wylie Park to his daughter Roxanna and in all other respects confirmed the terms of this will.
The result of the codicil is that Roxanna has a specific bequest and otherwise receives a third of the residue of the estate.
It can be seen that the deceased made no provision for the plaintiff, nor for his daughters Regina and Sarah.
The estate of the deceased
The estate presently comprises the home unit of the deceased at Ferguson Ave, Wylie Park which has a value of approximately $220,000. Another property in the estate was sold yielding net proceeds of $248,777.53. The current debts in the estate are in the order of $3,250 and the defendant's costs are estimated to be between $20,000 and $25,000 plus GST.
The net value of the estate after meeting the above liabilities will be in the order of $465,000.
Family history
The deceased was born on 25 October 1931. As I have mentioned, he married the plaintiff in 1965 and at that stage the plaintiff was 26 years of age. Their five children were Michael born in December 1976, Joel in May 1974, Sarah born in August 1970, Regina born in August 1968 and Roxanna born in October 1966.
As I have mentioned, the plaintiff and deceased were divorced with a decree nisi being made on 4 February 1981, which decree became absolute on 5 March 1981. There were then protracted proceedings both as to custody and property settlement. Final orders were made by the Family Court for settlement of property matters on 15 April 1983. This resulted in the sale of the matrimonial home for division in accordance with the terms of the orders. The plaintiff refused to co-operate in the execution of those orders and eventually the sale was made, with the Registrar of the Family Court signing the transfer pursuant to orders made by the Family Court on 19 July 1983.
The former matrimonial home which was sold in 1984 was sold for the figure of $290,000 and in general terms the plaintiff was entitled to 40% of the proceeds.
Following upon these property matters, the deceased had the sole custody each of Michael, Joel and Roxanna. The deceased had very little contact with Sarah and almost no contact with Regina after the divorce.
The present proceedings were brought by a summons filed in March 2011. As the deceased died on 24 August 2009, the application was out of time.
Extension of time
Because the application is out of time it is necessary for the Court to consider s 16 of the Family Provision Act which allows an application to be made, notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said:
"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."
His Honour Young J in several cases has dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (NSWSC, 7 February 1986, unreported) he indicated that when looking at "sufficient cause" under s 16(3) of the Act, the factors which one looks at include the following:-
(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?
Apparently, he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (NSWSC, 3 June 1986, unreported) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (NSWSC, 31 March 1988, unreported) Powell J when considering the matter at the substantive hearing, leant to the view that a plaintiff seeking an extension of time under the Testator's Family Maintenance & Guardianship of Infants Act 1916 must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (NSWSC, 8 September 1989, unreported).
In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at 23:
"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."
His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case.
The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect:
"Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."
With regard to the Master's comments, his Honour observed:
"...with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."
The plaintiff appeared in person at the hearing and unfortunately much of her affidavit evidence was deficient. One of the matters which she did not address was the explanation for her delay. The proceedings brought by Michael were commenced on 24 August 2010, which was before the institution of these proceedings and accordingly, the executors were then aware of the fact that the estate was being contested. There is no prejudice to the beneficiaries or any unconscionability and in the circumstances of this court case, when the plaintiff has only had intermittent legal representation which has not been satisfactory to her, I think it is appropriate to extend time.
Eligibility
The plaintiff being a former wife of the deceased is an eligible person. However it is necessary under s 59 (1) of the Succession Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J when considering that equivalent expression in the Family Provision Act described that expression in the following terms:
"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"
In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added:
"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."
These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.
Having regard to the nature of these comments, the critical question in this case is the nature of the property settlement entered into between the deceased and the plaintiff some 30 years ago. The relevant terms of the property settlement are as follows:
"1. That the husband and the wife forthwith do all acts and things and execute all documents instruments and writings necessary to effect as soon as possible the sale by public auction at a reserve price of not less that $290,000.00 or such other sum as the parties may mutually agree upon the whole of the land...situate at and know as number xx Fowler Crescent Maroubra in the state of New South Wales.
...
3. That the parties cause the proceeds of the said sale to be distributed as set out hereunder:-
...
(c) in payment to the wife of forty percent (40%) of the remaining proceeds of sale;"
Apart from the details of the sale price of the house, there is little evidence which is now available to suggest that the property settlement was in some way unfair or inappropriate. Certainly there was property, which was sold for $290,000, and the proceeds divided. The plaintiff although not referring to this in her affidavit evidence, when being cross-examined initially suggested that she had not been paid her share of the property. She said the following:
"Q. The house in Fowler Crescent was sold. You accept that?
A. I was told by Mr Connolly that they were going to make a settlement and I was to give him instructions to go and collect the money because if I didn't give him instructions to collect the money, then it would lie there and I would get nothing.
Q. So the house was sold, the proceeds I suggest were distributed in accordance with the Court orders, the lawyers were paid and you went your separate ways, correct?
A. That is not exactly true. I am sorry. I cannot agree with that.
Q. Which part of it don't you agree with?
A. I didn't get any money. I was not there and I object to the whole thing that happened, okay. It was a trauma.
Q. We are going to need to take things step by step. You say now do you, for the first time, that you got no money at all?
A. No money. No money from this deal. Forty percent was a business tax deduction thing. I should have had 50/50 according to the Family Court, Family Law Act 1975.
Q. Ma'am, the Family Court made orders saying that you would not get 50/50?
A. Yes, but the Family Court
Q. Just hear me out, is what you are saying that you got no money at all or is what you are saying that you got less than what you think you deserved?
A. I didn't get money. I wasn't given a statement. I did not participate in the sale. I did not execute anything. I am not interested in the registrar being ordered to sell my house that I built, that I purchased.
Q. So ma'am you did not and your lawyers did not at any point after 1984 make any application to enforce the final orders of the Family Court, did you?
A. Mr Connolly said that
Q. I didn't ask you what Mr Connolly said, my question was you did not make any application to enforce the orders and your lawyers did not, did they?
A. No, nobody did.
Q. If the Court is to believe you now that you say you received no money, can you explain why you didn't make any application such as that in the 25odd years that followed?
A. Because Mr Connolly said he was going do it. He was going to come and take me to the Equity Court.
Q. When did it become apparent to you that Mr Connolly had not done it?
A. When he was struck out.
Q. When was that?
A. I don't remember exactly, in the 80s.
Q. Did you then go and speak to another solicitor?
A. No, I was involved with my mother, my father's estate, the Department of Housing. I was I have been going on and on and on for 33 years, all alone.
Q. Is it your evidence to the Court firstly that you received no money out of the sale of xx xxxxxx xxxxxxxx?
A. That's right."
During the further cross-examination it emerged that in fact she had been paid monies by her solicitors from time to time and that in 2007 she still had investments resulting from these payments in the sum of approximately $137,000, and in 2010 investments to the value of $55,950. Her further cross-examination included the following:
"Q. And it was the case that in July of 2007 you held somewhere near $140,000 worth of shares?
A. They were bought for my children.
Q. Yes. What money did you buy those shares with?
A. Well, I saved because I was living with my mother and also Mr Connolly gave me some money.
Q. Mr Connolly gave you some money? So your solicitor in the Family Court proceedings gave you some money?
A. Yes.
Q. I suggest to you that was the money out of the proceedings of the sale of Fowler Crescent?
A. Yes.
Q. Yes, it was?
A. Yes.
Q. Thank you?
A. Which he took and never gave me a statement."
It seems that the complaint made by the plaintiff was more directed to the fact that there had been a lack of accounting to her in respect of her share of the property settlement.
Plainly, the plaintiff is unhappy about the property settlement but she was represented in the property adjustment proceedings by a solicitor and both senior and junior counsel.
Searches of the Family Court file show that no application was made for a variation of the orders or to set aside the orders. In my view, there is nothing arising from the terms of the property settlement which would constitute factors warranting in respect of the application.
The plaintiff also held a firm view as to whether she should inherit her husband's estate as the result of Jewish law. In her evidence she said the following:
"In Jewish law, two people consummate a marriage, and if divorce, two people have to be present at the Divorce in Court...as it was at the Sydney Beth Din, which Joe Beder would not attend until ordered by the Magistrate in the Children's Court to do so ... I got my gett [sic] ......Joe Beder did not attend the Court for the civil divorce, therefore I am still legally married to him according the[sic] the laws in Judaism, in Australia, and his widow. ...As Joe Beder's widow, I inherit his whole Estate..."
Although the Jewish law may have provisions such as those to which the plaintiff believes, the present entitlement on a divorce is governed by the provisions of the Family Law Act 1975 in Australia. In my view, questions of this nature do no constitute factors warranting the making of the application.
One of the matters that pervades the plaintiff's evidence in this case is her constant complaint of having been homeless over the years since her divorce. Plainly she has had houses to live in over that period. Up until 1999, she mostly resided in her parent's house although she moved out to other private accommodation from time to time. Between 1999 and 2007, she was housed in the public sector. Unfortunately, that period was also marred by disputes with authorities over the accommodation provided and eventually she lost her entitlement to public housing. She now resides in public housing in Oxford St Bondi.
The plight of the plaintiff is no doubt difficult in terms of her continuing housing and it is apparent that one of her bitter disappointments is that she does not have a house that she owns as her family home. She regards this as her entitlement and is still striving to achieve it.
Her mother died recently in August of this year. Probate has not been obtained in her estate which has a value in the order of $568,753.37. The estate passes to the plaintiff and her brother in equal shares and accordingly she will receive in the order of $270,000 as a result of the distribution in that estate. She has already flagged the fact to her brother that she will be making a claim on her mother's estate and intends to try and obtain the whole of the estate.
The complaints that the plaintiff has about the quality of the housing which she had enjoyed since the divorce are not in my view factors which would warrant the making of the application. They are all matters which are peculiar to her own situation and quite unrelated to the arrangements between herself and her husband as a result of their marriage. There is also evidence that the plaintiff and the deceased had little or no contact for the 30 years since their divorce and completion of their Family Court proceedings.
In my view there are no factors warranting the making of the application and accordingly I dismiss the proceedings.
In case a different view might be taken on this question, I turn to express some views and findings in respect of other matters which have arisen for consideration.
Other beneficiaries
It is plain from the will that the deceased considered that he had duties in respect of those children of the marriage which he had raised, namely Joel, Michael and Roxana. The estate with which we are dealing is a modest one and it is necessary to consider the situations of other persons having a claim on the bounty of the deceased.
Situation in life of Michael Beder
Michael is 33 years if age and he lives with a friend in rented accommodation. His assets are modest being a car worth $1,500, furniture worth $1,700 and some modest superannuation of $14,000. He owes debts of $7,954. He is a database manager and his salary is $28,000 of which he has so far been paid $6,000 since June 2010.
Apparently Michael had a good relationship with the deceased and he was his father's fulltime carer from 2002 to 2007 when he went into a nursing home. During this period the deceased suffered from Alzheimer's disease.
Situation in life of Joel Beder
Joel is 38 years of age and apparently works as a painter. He lives in a Housing Commission property in Dundas Valley in a bed-sitter unit.
He did have a relationship with his father even after he moved away from his father's home in 1997. He assisted the deceased at times, for example, helped his father look for his car when he couldn't remember where he had parked it. Joel needs funds to get some used spray painting equipment for his business and to replace the van used in his business.
Situation in life of Roxanne Beder
Roxanna suffers from an intellectual disability and Autism, She lives alone in government housing and is in receipt of a disability pension.
Plainly she needs as much support as can be provided and the deceased himself recognised this by making an extra provision for her.
Discussion
In considering whether any order should be made in favour of the plaintiff there is a serious deficiency in respect of her evidence. The plaintiff blithely suggests to the Court that she should have the whole estate as she should be entitled to purchase a home for herself in the Eastern suburbs, which even she recognised may cost some millions of dollars. An important factor is the total lack of contact between the deceased and the plaintiff over the last 30 years. The children who benefit under the will of the deceased have clear needs and have given some evidence of their financial circumstances.
The plaintiff has given no evidence at all of her present financial circumstances. All that has been gleaned are her entitlements to her mother's estate and the fact that in 2007 she had investments in the order of $137,000 and in 2010, $55,950. The plaintiff does not suggest in her affidavit material particular matters in respect of which she needs assistance which could be described as matters for her maintenance, education or advancement in life. For example, there is no evidence to suggest whether she needs any future medical attention or evidence of her current income and expenditure to see whether she needs any assistance in that regard.
Given the lack of this evidence, with what little knowledge is available of her entitlements to her mother's estate which may in fact be increased if she succeeds in her claim, it seems to me there would be no basis for making provision for the plaintiff. On this basis I will also dismiss the proceedings.
I dismiss the proceedings and order the plaintiff to pay the costs of the defendants of the proceedings.
Orders
(1) Proceedings dismissed.
(2) The plaintiff is to pay the costs of the defendants in the proceedings.
Decision last updated: 14 December 2012
3
2