Allan Roland Heathfield v Keith Berkeley Wight & Ors No. Scgrg-96-140 Judgment No. 6011 Number of Pages 5 Testator's Family Maintenance

[1997] SASC 6011

IN THE SUPREME COURT OF SOUTH AUSTRALIA

Judge Burley Supreme Court Master

Testator's family maintenance - application by elderly adult son - testator made no provision for Plaintiff in his will - small estate - residuary beneficiaries nephew and niece of testator - testator and plaintiff's mother divorced when plaintiff aged 7 - little contact between plaintiff and testator thereafter - nature of the moral duty of parent to child Gorton & ors v Parkes (1989) 17 NSWLR 1; Cooper & anor v Dungan (1976) 9 ALR 93 and Dennes v Coats & Beitz (1979) 82 LSJS 192 , applied.

ADELAIDE, 17 October 1996 (hearing), 21 February 1997 (decision)

#DATE 21:2:1997

#ADD 16:6:1997

Plaintiff :

Counsel: Mr J S Roder

Solicitors: Gun & Davey

Defendant Keith Berkeley Wight:

In Person

Defendants Rosemary Preece, Brian Bolland:

Solicitors: Mr W H Hall

Order: application allowed.

JUDGE BURLEY

1. By his amended summons dated 9 January 1996 the plaintiff seeks, pursuant to the provisions of the Inheritance ( Family Provision ) Act 1972, the following order: - "An order that such provision as the court thinks fit made out of the estate of the said Arthur Roland Heathfield late of 27 Ballantyne Street Hawthorn in the said State Retired Painter deceased who died at Hawthorn in the said State on the sixteenth day of October 1994 for the maintenance, education and advancement in life of the plaintiff." 1. The net estate is now worth less than $100,000 and consequently the summons may be dealt with in a summary way pursuant to SCR119.16. The parties elected to proceed on affidavit without cross examination of any of the deponents.

2. The first defendant, a solicitor, is the executor of the estate. His affidavit sworn on the 7th May 1996 indicates that he has got in the assets of the estate except for a debt due by the 3rd defendant described by the executor as follows:- "Monies due and payable by Brian Bolland to the estate for monies due and payable by the estate pursuant to a mortage granted in favour of the said Brian Bolland by Bank SA (formerly the State Bank of South Australia) being Memorandum of Mortgage number 7318607 registered over Certificate of Title Register Book Volume 2360 Folio 1 - mortgagee Bank SA - $41,754.93." 3. The deceased provided the above mortgage as security for a debt owed by the 3rd defendant to the State Bank. The 3rd defendant was unable to pay the debt and the bank realised its security. The third defendant remains unable to repay the debt to the estate. The 3rd defendant filed a brief affidavit, sworn on the 6 September 1996, as to his income and assets. He is clearly unable to pay the debt by instalments from his income. He has a joint equity with his wife in a residential property. His share in the equity amounts to about $16,000 and he has a motor vehicle valued at about $2,000. It is clear that if a judgment were obtained against him for the amount of the debt, the enforcement of such judgment would lead to his bankruptcy.

4. At the commencement of the hearing, the first defendant tendered a statement from the Commonwealth Bank dated 20 September 1996 which is exhibit 1D1. It shows that there stands to the credit of the estate with the bank the sum of $55,455.19. The first defendant also stated that he held a sum of $920.40 in his trust account in respect of the estate. If the debt owing by the 3rd defendant to the estate is included in full then the estate has assets amounting to approximately $98,000.

5. The deceased died on the 16 October 1994 leaving a will dated 7 April 1993. Probate was granted to the 1st defendant on the 13 July 1995.

6. The plaintiff is now 70 years of age. No provision was made for him in the will of the deceased. The plaintiff is the only child of the deceased. The plaintiff had just turned seven when his parents were divorced. They had separated prior to that time. On separation the plaintiff remained with the deceased until he was placed in the Largs Bay Orphanage in June 1932. He was removed from the orphanage a few days later by his mother. The plaintiff then lived with an aunt and uncle until about 1933 or 1934 when his mother remarried. He then went to live with his mother and stepfather. The plaintiff had an unhappy time with his aunt and uncle. He had an even worse time when he lived with his mother and stepfather. His stepfather was a violent and cruel person.

7. The plaintiff was regularly beaten by his stepfather. His mother tried to protect him from the violence inflicted upon him but she very often became the subject of her husband's attacks.

8. At about the age of 14, the plaintiff completed grade 6. He wished to complete his secondary education but his stepfather would not allow him to remain at school. He was then made to take employment and his stepfather appropriated most of his meagre wages.

9. In 1940, when the plaintiff was 14, he went to live with his mother's sister in Adelaide. He obtained work, initially as an office boy and later as an apprentice. His wages were 8 shillings and 8 pence per week. He also worked for his uncle and aunt in their tomato growing business and he helped with an uncle's horse training business.

10. Not long after the plaintiff started his apprenticeship his father visited him. Trouble developed between the plaintiff's father and his aunt and uncle and he was asked to leave. The plaintiff was forced to take private lodgings, the cost of which absorbed almost all of his wages as an apprentice. Not long after that the plaintiff's mother and stepfather returned to Adelaide and he returned to live with them. He had been assured by his mother that his stepfather would no longer beat him but this turned out to be an illusory promise. His stepfather interfered in his employment. He took him away from an employment which he enjoyed and required him to work as a milk vendor. He earned L5 per week for this work which was very good income for those days. However, the plaintiff's stepfather demanded that the plaintiff pay his wages to him in return for a pittance for pocket money. Plaintiff eventually left this employment and was severely beaten by his stepfather for doing so. The plaintiff left home for the first time when he was 17 years of age but was eventually persuaded to return home by his mother. His stepfather ill treatment continued and on his 18th birthday the plaintiff enlisted with the Royal Australian Air Force. He was discharged from the air force in 1946, he undertook private employment for approximately 18 months and then in May 1947 re-enlisted in the air force where he remained until February 1948. Upon discharge he again found employment but left that employment in 1950 to return to Adelaide because his mother was ill. He found factory employment in Adelaide. While in Adelaide the plaintiff lived with his mother and stepfather. On one occasion he and his stepfather had fought causing injury to each other, but after that occasion the plaintiff's stepfather no longer physically assaulted the plaintiff.

11. In 1943 the plaintiff had been told by an aunt that his father wished to see him so he made contact with him. He met his father's second wife and the three of them got on well together.

12. The plaintiff has held a number of jobs throughout his working life. He reached the level of manager of the Woolworth store at Malvern in 1955. He later took up employment as a salesman for a company called Leader Products.

13. The plaintiff married in 1952. Prior to his marriage he had taken his fiancee to meet his mother and father who were living separately in Adelaide.

14. In his affidavit the plaintiff said that in about late 1955 he received word that his father was ill and he travelled to Adelaide with his family to see his father. He said that when he saw his father it was plain that his condition had been exaggerated. Whilst he was in Adelaide he asked his father to guarantee a loan of L500. The monies were to be used as a deposit on a house. His father declined to do so stating that he was not well off and did not wish to put at risk those assets that he had. The plaintiff says that he accepted this refusal with good grace.

15. The plaintiff and his wife had five children. They purchased their own house in 1961. They sold the house in 1971 in order to purchase a business. They retained their business for a period of 12 months and then sold it for a reasonable profit.

16. In about the mid to late 1970's the plaintiff returned to Adelaide to visit his parents. When he established contact with his father, his father told him that he did not wish to see him. No reason was given. Shortly after his return to Melbourne the plaintiff suffered a heart attack. There was a return of angina pains in 1982. In 1985 he underwent a quadruple bypass operation. He was thereafter unable to work.

17. When the plaintiff was recuperating from the operation he travelled to Adelaide to see his mother. Whilst in Adelaide he telephoned his father. At first the plaintiff's father appeared to be pleased to hear from the plaintiff but he also became agitated. He told the plaintiff it was too late in his life to reconcile with him.

18. In 1988 the plaintiff and his wife were divorced. The plaintiff received $20,000 from the property settlement. The plaintiff lost some of this due to a bad investment with Pyramid Building Society.

19. The plaintiff has personal savings of approximately $3,000 and a car worth a similar amount. He has some furniture and clothing and his only income is from the aged pension. He is in poor health.

20. As far as the plaintiff is aware, his father did not pay maintenance in respect of the plaintiff during the childhood of the plaintiff; nor did the plaintiff receive any financial assistance from his father as an adult.

21. The plaintiff relied upon the affidavit of his mother, Esther Brown. Her affidavit was sworn in July 1996 at a time when she was 87 years of age. She corroborated the plaintiff's evidence as to his childhood in every material particular.

22. The defendant Bolland is the nephew of the deceased. The defendant Preece is the niece of the deceased. Apart from a small legacy of $1000 to another niece (which the plaintiff does not seek to upset), Mrs Preece and Mr Bolland take the entire estate under the will of the deceased.

23. It appears from Mr Bolland's affidavit that the plaintiff's mother left the deceased and that he put the plaintiff into an orphanage because he was otherwise unable to care for the plaintiff. The plaintiff's mother then took him out of the orphanage and paid relatives to look after him. It is clear that the deceased did not provide for the maintenance of the plaintiff for the time while he was placed in the orphanage to the time that the plaintiff first gained employment.

24. It is Mr. Bolland's understanding that the plaintiff did not inform the deceased of his whereabouts for a long period prior to the plaintiff joining the Royal Australian Air Force. There is no evidence that the deceased made any attempt to find his son.

25. It is Mr. Bolland's belief that although the deceased and his second wife attempted to accept the plaintiff, an incident in which the plaintiff allegedly failed to account to his father in respect of winnings on a horse race soured their relationship. This is obviously evidence of conversations that Mr. Bolland had with the deceased and as such it is not probative of the truth of the allegations made by the deceased (Pontifical Society for Propagation of the Faith v Scales (1961-62) 107 CLR, 9 at 24, per Taylor J). It may be explanatory of the deceased's failure to provide for the plaintiff in his will. The same may be said of all of the evidence adduced regarding statements of the deceased about this plaintiff, including an incident as deposed to by Mr. Bolland relating to the deceased forwarding some money to the plaintiff which the plaintiff allegedly informed his father that he had not received.

26. The affidavit of Mrs. Preece discloses that the deceased was close to her and Mr. Bolland. Mrs. Preece lives in modest circumstances. She stated in her affidavit that she had read Mr. Bolland's affidavit and agreed with the facts deposed therein. There is little that I can make of this confirmation because it is not nearly specific enough.

27. The general principles applicable to a claim under the Inheritance(Family Provision) Act have been comprehensively reviewed by Legoe J in Dennes v Coats & Beitz (1979) 82 LSJS 192 and I need not repeat them here. This being a claim by an adult son I have also found the decision of Bryson J in Gorton & ors v Parkes (1989) 17 NSWLR 1 to be of considerable assistance. In that case, his Honour examined in some detail the position of adult sons both as to the question of need and the question of moral duty owed by the testator to an adult son (at 6-11). I do not need to dwell upon the question of need. The plaintiff has been employed in one form of employment or another during the course of his working life but he developed a heart condition and in January 1985 underwent a quadruple bypass operation. I accept his evidence that he has been unable to work since that time. His assets are modest, totalling some $6,000. He is reliant upon the aged pension for income and he is in poor health. In applying the principles enunciated by the Full Court in Eckert v Starick, unreported, delivered on 3 May 1994, per Olsson J at 7, judgement no. S4584.2, as to the question of need, I found that the plaintiff has clearly demonstrated that need.

28. In his discussion of the moral duty owed by a father to an adult son, Bryson J referred to the view expressed in some of the earlier cases on the topic and in particular Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, that bare paternity does not necessarily create a moral obligation. At page 9 of his judgement, he referred to a passage from the judgement of Dixon CJ at page 18 of the report, which is as follows: '... 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.' 29. Of that passage Bryson J said (at 9G): 'The observations [of Dixon CJ] which I last cited, seem to involve a view of the moral obligation of a parent which differs, I would think, from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited and can possibly be escaped, by steadfastly maintained repudiation or evasion. 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 a 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 large 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 had no duty towards them. .....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 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 judgement published as recently as 1962." 30. Such a statement of principle is even more applicable today given the progress that society has made in recognizing and articulating the responsibilities of parents towards their children. I do not take Bryson J to suggest that, if a child has been neglected until adulthood, the court should right the wrong thereby done by granting an order for provision out of the parents' estate without reference to the needs of the plaintiff.

31. It is clearly not the function of the court, in the exercise of the powers conferred upon it by the Inheritance Family Provision Act, to do so. Rather, in the circumstances of this case, the task of the court is to ascertain whether or not the plaintiff is in need and whether or not there is a recognizable moral duty on the part of the testator to have provided adequately for the plaintiff by his or her will. If there is a need and a moral duty, the quantum of the award is established by reference to the plaintiff's need and not the court's subjective view of what might have been appropriate: Cooper & anor v Dungan (1976) 9 ALR 93 (H. Ct.)

32. I turn to a consideration of the facts to which the principles referred to in the cases need to be applied. It seems to me that the deceased, even if it is accepted that he was deserted either constructively or otherwise by his wife, took no interest in the financial support of the plaintiff for the remainder of the plaintiff's life. Whilst I recognize that, because of the Depression, the testator had little ability to make a contribution to the plaintiff's welfare, that lack of means did not persist throughout the time that the plaintiff passed from childhood to manhood, yet no financial contribution was made by the testator. As a result of the breakdown of his parents' marriage, the plaintiff was consigned to a household of which the dominant member was his stepfather. The plaintiff was seriously mistreated by his stepfather. If the testator was aware of such mistreatment, his paternal duty required him to relieve the plaintiff of his sufferings. If he was not aware of what was happening to the plaintiff during his childhood, he failed in his duty to the plaintiff to ensure that he did not come to harm. In my view, it is no answer to say in response, that the plaintiff was less than a worthy son because he did not, as an adult, establish and maintain contact with the testator on a regular basis. It is no answer to say that the testator formed the view that the plaintiff was an unlikable and untrustworthy person as appears to have been the view formed by the testator late in his life. If the plaintiff did have such character defects, the seeds of those defects were sown in his early and middle childhood at least partly because the testator took no interest in his welfare, both moral and financial.

33. In light of the above conclusions and findings it seems to me that the plaintiff has established an entitlement to one third share of the residuary estate with the second and third defendants. The plaintiff does not seek to upset the legacy of $1,000 to Pauline Golley. Consequently, the residuary estate will bear the burden of the provision out of the estate as awarded to the plaintiff by the order which I propose to make. The assets of the estate consist of the cash held in the Commonwealth Bank account and the debt owed by the third defendant to the Estate. After payment by the executor of all necessary costs and expenses and the legacy to Pauline Golley, the residuary estate then remaining will be divided equally between the plaintiff and the second and third defendants, the executor, of course, retaining the third defendant's share of the funds in the bank account in partial satisfaction of the debt due by the third defendant to the estate: cf Cherry v Boultbee (1839) 4 MY. and CR. 442, per Cottenham LC at 447.

34. It will be for the executor to decide whether it is worthwhile taking proceedings against the third defendant in order to recover, if possible, at least sufficient funds to enable the plaintiff and the second defendant to be paid their full 1/3 share of the value of the residuary estate. No doubt he will consult with the plaintiff and the second defendant in that regard.

35. Minutes of Order should be brought in by the plaintiff's solicitor. There will be liberty to speak to the Minutes. I will then hear counsel as to costs.