Allen v Allen
[2012] NSWSC 140
•22 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Allen v Allen [2012] NSWSC 140 Hearing dates: 23/11/11, 24/11/11 Decision date: 22 March 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1)The plaintiff's summons is dismissed;
(2)I will hear submissions on costs.
Catchwords: WILLS AND ESTATES - Succession Act 2006 - application for family provision order by daughter of deceased - four children of deceased all beneficiaries - daughter received provision of 15% of estate - daughter estranged from deceased - small estate - other beneficiaries with significant needs - application dismissed Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Succession Act 2006Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gianoutsos v Glykis [2006] NSWCCA 137
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Smilek v Public Trustee [2008] NSWCA 190
Singer v Berghouse (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Walker v Walker (NSWSC, 17 May 1996, unreported)Category: Principal judgment Parties: Denise Anne Allen (plaintiff)
Richard Derrick James Allen (defendant)Representation: Mrs S Foda (plaintiff)
Mr R Colquhoun (defendant)
Solicitors:
Bales Boshev Lawyers (plaintiff)
John Katen Lawyer (defendant)
File Number(s): 2010/421895
Judgment
This is an application under the Succession Act 2006 in respect of the estate of the late Joyce Kathleen Mary Allen who died on 1 January 2010 aged 80 years. Her husband predeceased her in 1991 and she was survived by her four children. The plaintiff and the defendant are children of the deceased.
Last will of the deceased
The deceased made her last will on 11 December 2008 under which she left her estate to her four children. The deceased left Stephen Allen 35 percent; Richard Allen 25 percent; Keith Allen 25 percent and Denise Allen 15 percent of the estate. Richard was appointed executor.
The deceased had made a will in 1994 in which she left her estate to Stephen, Richard, Keith and Denise's daughter, Karen Bass.
Estate of the deceased
The deceased had a property at Tumbarumba Crescent, Heckenberg and small amounts of cash and shares. The house has been sold and the estate has been reduced to cash of $291,522.66.
So far costs of $12,140.00 have been paid by the defendant, leaving an amount of $279,382.05 held in the defendant's solicitor's trust account. The balance of the costs, to the end of the two-day hearing, are estimated to be $49,355. The plaintiff, Denise's, costs are estimated to be $75,395.00.
If an other is made in favour of the plaintiff, the available estate is therefore in the order of $154,632.00. As the estate is presently to be distributed, Stephen's share of this net estate would be approximately $54,121; Richard and Keith's share would be approximately $38,658 each; Denise's share would be approximately $23,194. If no such order is made Stephen's share would be $80,509, Richard's and Keith's share $57,506 and Denise's share $34,504.
Family history
The deceased was born on 23 December 1929. As I have mentioned she had four children: Richard born May 1948, Keith born December 1949, Denise born June 1951 and Stephen born September 1953.
Denise left school in 1965 after completing year 8. She worked as a machinist until 1986. She has been married three times and is divorced from her husbands. She lives on her own. Her daughter Karen was born in 1976. Denise had not been employed since 1986.
The deceased's husband died on 1 February 1991.
In August 1994 the deceased made her second will to which I have referred. At that stage it seems that there were complaints by the deceased to Richard about the way Denise had treated her.
In 1996 after the failure of Denise's third marriage she moved to the Hunter Valley.
Between 1999 and 2000 the deceased was diagnosed with Parkinson's disease.
In 2003 Stephen gave up a driving school business to become the deceased's full time carer.
In October 2003 Denise visited the deceased at her residence for the last time. Denise claimed that between October 2003 and May 2007 she would visit the deceased at Liverpool RSL Club about three or four times a year.
In December 2007 there was an incident when the deceased and Stephen claim to have seen Denise sitting on the window sill of the deceased's bedroom. The allegation, which the plaintiff denies, is that she had entered the deceased's bedroom and stolen a photograph and two letters from the deceased.
Denise did not see the deceased again after 2007 but she says that she continued to attempt to make contact with her. On 1 January 2010 the deceased died and probate of the will was granted to the defendant.
These proceedings were commenced within time, on 21 December 2010 (s 58(2) of the Succession Act 2006).
Eligibility
The plaintiff, Denise, is an eligible person because she is a child of the deceased (s 57(1)(c) of the Succession Act 2006).
In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a Court must take. These comments are equally applicable to claims under the Succession Act 2006. At pages 209-210 Mason CJ, Deane and McHugh JJ said the following:
"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
The first stage requires a determination whether the provision made for the plaintiff was inadequate for her proper maintenance, education and advancement in life. If that stage is satisfied, the second stage is a discretionary question as to what, if any, further provision should be made for her out of the deceased's estate (the nature of the family provision order, if any). At both stages the court may consider the factors set out in s 60(2) of the Succession Act 2006.
I turn now to consider the situation of each of the deceased's children.
Denise Allen
Denise is 60 years old, single with no dependants. She owns her home at Bellbird, New South Wales valued at approximately $180,000 to $190,000, which is not subject to a mortgage. She has a 1998 Holden Barina car worth about $1,500 and holds no other significant property. She receives a Centrelink Disability Support Pension of $748.80 per fortnight. She has no superannuation or savings and her fortnightly expenses exceed her pension. There is no dispute that the Plaintiff has significant need arising from her financial circumstances and as a consequence of her medical conditions.
In 1953 Denise suffered third degree burns to 35 percent of her body from an accidental fire when her dress caught fire. That resulted in significant scar tissue. Denise now has restricted mobility in her right arm caused by scar tissue relating to the burns. She also has restricted use of both hands caused by severe carpal tunnel syndrome. This affects her wrists. She also claims to suffer from vertigo, although this is noticeable only occasionally. She does however suffer from falls from time to time and she has difficulty walking up steps. She has thyroid problems.
In June 2011 she was diagnosed with breast cancer and has undergone two operations. She has received radiation therapy which ceased on 10 November 2011. Her doctor reports she is making a good recovery.
Denise is unable to afford any private domestic assistance but fortunately her daughter, Karen, assists during the week with all her household duties and cooks meals. Karen finds this difficult as she works as a casual primary school teacher and she also has a 3 year old son. Karen lives about 25 minutes away from her mother's home. Karen is 25 years old and it does not appear that the plaintiff gives financial assistance to her.
Denise did not contribute to the deceased's estate and later I will deal with her relationship with the deceased, which is one of the important matters in this application.
I will now consider the situation in life of others who have a claim on the bounty of the deceased.
Richard Allen
Richard is 62 years of age. He is married. He owns his home at Tuncurry, New South Wales, worth about $550,000 which is subject to a mortgage of $200,000. He owns a 2005 Ford vehicle worth $15,000, shares worth $16,000, superannuation of $110,000 and other cash and investments of approximately $130,000.
Apart from income from his shares and investments he also receives a Department of Veteran Affairs disability pension of $394.30 per fortnight.
Richard's medical problems are as follows:
Cardiovascular disease resulting in two heart attacks (1993 and 1998). The first of these resulted in a double bypass operation and the second resulted in a stent procedure.
Peripheral arterial disease in both legs, arms and carotid arteries, diagnosed in 2005.
A total thyroidectomy in 1994 resulting in his having to take Thyroxin for the rest of his life.
Loss of renal function resulting from extensive chemotherapy used to survive mixed seminoma/teratoma carcinoma in 1978-1979.
Extensive scarring to his abdomen, chest and throat from five major operations in 1978, 1979, 1993, 1994 and 1999. The 1999 operation was for a twisted intestine that resulted from his earlier operation in 1978 to remove the cancerous lymph nodes from his chest and back wall of his abdomen and to remove part of a lung.
Post-Traumatic Stress Disorder with hearing loss from service during Vietnam War, medically assessed by the Department of Veteran Affairs.
There is no reason not to accept Richard's evidence on these matters.
Richard appears to have had a good relationship with his mother and father during their lives. Plainly his mother trusted him and she recounted many of her complaints about Denise to him.
Richard did not contribute to the estate of the deceased.
Keith Allen
Keith is 62 years of age. He is married. He works as a storeman in a paint factory. His wife does not work. They purchased a house in 2000 for $450,000 which is subject to a mortgage of approximately $50,000. They have about $2,000 in the bank and his car is a 1999 Commodore valued at $3,000 and in need of mechanical repairs. He has some superannuation but says he has no idea how much. His wife lost nearly all her superannuation due to a default by her former employer. She no longer works and is not likely to do so in the future.
Keith's medical problems are as follows:
- Very painful curvature of the spine with compressed discs and vertebrae and pressure on spinal nerves. This is not reversible and he has had it for many years. The condition causes him discomfort when he stands or sits for any length of time. The pain also forces him into bed rest and frequently means he is unable to move for several days at a time unless he takes very strong painkillers to get some relief. He needs to use painkilling medication on a regular basis in order to keep working or even do household chores.
- Plantar Fibromatosis, the same as his father and brother, Stephen. It is a painful thickening of tissue and he has it on both his feet and his hands.
- His teeth are getting worse with age. He has already had major dental work and repair.
There is no reason not to accept Keith's evidence on these matters.
Keith had a good relationship with his mother and he and his family visited her frequently. After his father died he visited his mother at least once a week.
Keith did not contribute to the estate of the deceased.
Stephen Allen
Stephen is 58 years old and is separated from his wife. He lives with his daughter, Donna, in a garage at her property. His only asset is a car worth between $2,000 and $4,000. He receives a Centrelink disability support pension of $724.60 per fortnight.
Stephen's medical problems are as follows:
- Coronary heart disease which has so far resulted in multiple heart attacks and open heart surgeries which included valve replacements. He takes constant medication for this and will do so for the rest of his life.
- Diagnosed Diabetes which requires regular insulin injections.
- Permanent 10% impairment of his back which means he has constant aching pains in his spine that radiate to his right shoulder and result in constant feelings of numbness and feeling weak. The pains in his spine also radiate through his backside to his thighs and mean that bending, lifting or twisting increases his pain levels significantly. This impairment reduces his mobility substantially, affects his balance and increases his risk of accidental falls.
- Permanent 15% impairment of his neck.
- Permanent 3% impairment of his arm.
- Cataracts in both eyes.
- Plantar Fibromatosis, the same as his father and his brother, Keith.
It seems clear from the evidence that Stephen gave up his driving instructors business in 2003 to care for his mother. He gave evidence, which I accept, that his responsibilities as carer included:
- Managing the deceased's medication;
- Taking the deceased to medical appointments;
- Testing the deceased's blood glucose levels and administering insulin injections;
- Bandaging the deceased's legs and changing the bandages three times a day;
- Applying cream to the deceased's feet three times a day;
- Trying to keep the deceased calm because stress made the tremors due to Parkinson's decease worse;
- Providing the deceased with three meals a day and snacks;
- Assisting the deceased with dressing and changing clothes for days and nights;
- Washing and drying the deceased's clothes;
- Attending to house cleaning and maintenance;
- Grocery shopping and other shopping for the deceased;
- Lawn mowing, gardening and yard maintenance;
- Assisting the deceased with personal administration;
- Driving the deceased to hairdressing appointments and social events.
Robert Ritchie, who was a paying border at the deceased's house for the 18 years leading up to the deceased's death gave evidence which set out the support that Stephen provided the deceased. Mr Ritchie gave evidence that after Stephen became the deceased's full time carer in 2003, he lived at her place and did all her cooking, bathing, cleaning and all her medication. Although Mr Ritchie was not available for cross-examination, given that he is outside the family, I will accept this evidence and give it some weight in the evolution process on this issue.
There were suggestions in the evidence that Stephen continued to live at his wife's house despite the fact that he claimed that they had been separated for some 20 years.
The plaintiff maintained that Stephen never resided with the deceased but was residing with his wife in Sadleir. The plaintiff gave evidence that Robert Ritchie told her that Stephen had slept at the deceased's house less than 10 times in the time that Mr Ritchie had been at the house (T34). This is contradicted in Mr Ritchie's affidavit in which he said Stephen moved into the house after 2003. Having regard to the problems with Denise's credit, I prefer Mr Ritchie's evidence.
Police reports were tendered (Ex G) by the plaintiff's counsel in an attempt to prove that Stephen had not resided with the deceased. The first in time related to an incident on 16 August 2004 in which Stephen's home address is given as his wife's address in Sadleir. Stephen said at the hearing that he had not spoken to the police on that day (T55).
The second report related to an incident on 1 January 2010 in which Stephen is shown to have given his address as his wife's address in Sadleir. At the hearing Stephen explained this at T54:
"Q. You gave address to the police on 1 January 2010 as xx xxxxxxxx xxxxxx Sadleir?
A. There was a gathering after the funeral. Mum passed away. I went to me daughters. It was at my ex-wife's house. This drug addict, 2 doors up tried to bust in and I told her to go. Ring the police. Fine. Someone says "he lives here". They asked me address. He said - someone said "you live here" and I said "yeah". I didn't show any ID. I didn't show anything.
Q. You didn't tell them though--
A. --no.
Q. Your address was your mother address?
A. No. That's right."
After being shown the police reports Stephen maintained that he had been living with the deceased.
The plaintiff's counsel also relied on medical records of the deceased obtained under subpoena which were said not to contain mention of the deceased's son living with her (T58). However the records do, at least in the handwritten notes for 15 May 2009, say that "Mrs Allen lives in her own home with her son. Son is her carer..."
There is no doubt that the deceased appreciated Stephen's assistance. This is evident from the larger share of the estate which Stephen received and from the evidence available as to her appreciation of his help expressed to Robert, Robert's wife and Mr Ritchie as outlined below.
Between 1996 and 2003 Karen, the plaintiff's daughter, observed that she visited the deceased with her mother every three to four weeks on weekends for approximately the first two to three years and then five times a year. The plaintiff had limited contact with the deceased after 2003 and after October 2003 did not go to her house. She was thus in no position to observe what was happening. I am satisfied from the available evidence that, from 2003, Stephen was living with the deceased as her full-time carer.
It seems that in 1994 to 1995 when the plaintiff had thyroid problems and became tired Stephen looked after the deceased's shopping. At that stage there was an argument and falling out between the plaintiff and Stephen over his use of the deceased's money for gambling.
This led to a question in this case as to whether such a practice existed. Stephen's evidence was that his mother liked betting and had her own TAB account. He used to place bets for her and denied he ever stole money from her to gamble. Richard also gave evidence of his mother being an aggressive gambler when he gave her tips. In the end he stopped giving her tips to curb her gambling but it continued.
The evidence of how Stephen was involved in his mother's gambling is quite plausible and I would accept it.
The allegation that Stephen stole from his mother is a serious one and there is no evidence to support it. If it had occurred one would have expected to see quite a different view of Stephen by his mother in contrast to what appears in the evidence.
It is apparent from conversation with the deceased and Richard that she had a strong desire to benefit Stephen. The deceased did not want to leave anything to Denise because of her estrangement from the family and how Denise had treated her. Apparently the deceased received advice that she had to leave some of her estate to all her children to eliminate future disputes. At one stage Richard suggested that the house could be transferred to Stephen about which the deceased obtained advice and the advice was that she should leave her will as it had been drawn.
Credit
As I have mentioned, the two difficult areas in this case concern the question of Stephen's relationship with his mother and the relationship between Denise and her mother. Unfortunately credit of the witnesses intrudes on this area.
I did not find Denise a satisfactory witness. She avoided answering questions and continually advocated her case without regard to the questions she was asked.
Richard was an impressive witness. He was careful and extremely accurate when answering questions and I accept his evidence.
I will accept Keith's evidence although it is strange that he did not remember anything about his superannuation.
Stephen had some difficulties with his evidence and it is perfectly clear that there was enormous antipathy between Stephen and Denise. No doubt the 10% that went from Denise's share of the estate to Stephen has fuelled this situation and may have precipitated this very unfortunate litigation.
Discussion
The relationship between the plaintiff and the deceased
The plaintiff gave evidence that she lived with the deceased and her father until 1971, when the plaintiff was aged 20 years. She then married her first husband and moved into a house about 15 minutes away from her parents she said that she saw them at least once a week. The plaintiff then moved to the Central Coast in 1975, as did her parents in about 1980. The plaintiff says that her parents moved to Heckenburg in 1984 but that she continued to have daily contact with them, driving the deceased to shopping, outings and other activities.
In 1991 the plaintiff's father died. In 1994-1995 she was diagnosed with thyroid problems and had to rest frequently. She says that her brother Stephen started taking the deceased shopping. In 1996 the plaintiff moved to the Hunter Valley with her daughter but says she continued to visit the deceased every three to four weeks.
In 1999, after the deceased was diagnosed with Parkinson's disease, the plaintiff says that she would go with her daughter to meet the deceased at an RSL three or four times a year. Their last visit to the deceased's home was in 2003 and the last time the plaintiff saw the deceased was in May 2007 at the RSL.
The plaintiff maintained that she and the deceased had a relatively strong relationship up until 2003. She said that after 2007, they did not see each other at all. This was because of the incident during which the deceased alleged that the plaintiff had entered her bedroom and stolen from her.
The plaintiff alleged that she did not visit the deceased at her house after 2003 because she was forced to hide in a bedroom while Stephen was there to avoid interaction with him. She also said that from 2007 to 2008 she tried to call the deceased but the deceased would not speak to her.
Richard gave evidence of the difficulties in the relationship between Denise and the deceased, which seem to have commenced in 1994, at paragraphs 6 to 9 of his affidavit which are as follows:
"6. In the first half of 1994 two events in particular occurred which Mum told me were the "last straw" in relation to the Plaintiff and in about August 1994 Mum said to me words to the effect "My nerves are shot because of how Denise has treated me. That letter I received from Denise has really affected me. I can't get over she said such nasty things to me in the letter including the fact that she wished I would hurry up and die." Mum showed me the note and I noticed that she was extremely distressed by it and I noticed from about that time on she cried a lot when I visited her and her hands were trembling and she said to me "My nerves are shot because
of how Denise is treating me." I observed that sometimes she dropped things because her hands were trembling so much.
7. The other event that I observed distressed Mum, because she got so distressed when she spoke about it, was that she said to me "Denise and her third husband stripped my garage bare of tools, all the tools, equipment and other items were taken from my house. Denise took with her the photograph of her that I had hanging in my lounge room on the wall. Denise said to me she was entitled to take what she wanted because it was all hers anyway."
8. After Mum made her second Will in August 1994 she said to me words to the effect "Please keep this a secret as I do not want anyone let alone Denise to know." Despite this, in 1996 Mum told me that Denise had somehow found out about the change and Mum said to me words to the effect "Denise phoned me and abused me for making the change in the Will" I am aware that around this time Denise also phoned my brother Keith in relation to topic of Mum's will.
9. After the phone call referred to above to Mum by the plaintiff, Mum said to me words to the effect "I have received a second abusive letter from Denise. This time the letter said words to the effect "I know that you have taken me out of the Will. Why didn't you die first you bitch, I would have got the lot"." I observed that this distressed Mum when she spoke about it."
The letters of 1994 and 1996 are not in evidence. A third letter, dated 10 June 2002, was in evidence (Ex 7) It said:
"Joyce,
Your granddaughter received a letter... from Ron saying you are concerned about her welfare. Your granddaughter then rang you & you agreed you were concerned about her welfare. I beseech you to contact authorities (police, welfare, etc) as you believe her safety is in danger. If you are the caring grandmother you make out to be you will act on your granddaughter's behalf and find out the truth (I am the mother you could never be caring and loving). Your late husband words [sic] to you many times 'think before opening your mouth Joyce', he could never shut your mouth and I know I can never.
Actions speak louder than words
Your outcast daughter"
The plaintiff denied writing this letter to the deceased and at the hearing said it could have been written by one of her former husbands, Ron (T31). However, there is evidence that it was written by her. It is sent from Bellbird, where the plaintiff lived. By its terms ("your outcast daughter") it appears to relate to her (the plaintiff being the deceased's only daughter).
Stephen gave evidence that he observed the deceased speaking to Karen on the phone and that when the deceased asked if the plaintiff wished to speak to her, the plaintiff would shout abuse at the deceased.
I accept that the plaintiff had no contact with the deceased from 2007 until the deceased's death on 1 January 2010 and that from 2003 they saw each other infrequently. I accept that the plaintiff wrote the deceased letters which caused her emotional distress.
The allegation of theft
The incident in 2007 was reported by the deceased to Richard and his evidence is in paragraph 10 of his affidavit as follows:
"10. In late 2007 Mum said to me words to the effect "I am certain Denise was in my bedroom earlier in the year and she was responsible for the theft of a photograph of herself. I saw her in the bedroom window". Mum also said words to the effect "I've taken Karen out of the Will because Karen is now 21 and has finished her university studies." Mum also said words to the effect "Denise is very clever at manipulating people and she may end up with what I leave Karen anyway. Denise has chosen not to be part of the family for many years. Stephen has given me everything he has given up his life to look after me and has given me a tremendous level of care. I really appreciate what Stephen has done for me. As you know, Stephen has no house or any other major assets and he has neglected his own health to make sure I am cared for properly. I can never repay Stephen properly for the sacrifices he has made for me and for all the love and kindness and care that he has given me. I really want to leave everything to Stephen."
Stephen gave evidence from his perspective, that he and the deceased were returning home from an appointment and, as he started to reverse the car towards the house, the deceased said there was someone in her bedroom window and then said "There's Denise!". Stephen looked past the deceased across the car and saw the woman sitting on the deceased's bedroom windowsill. Underneath the windowsill there was a brown plastic milk crate that had not been there before.
Stephen finished reversing the car, helped the deceased out of the car then they walked down the path and into the house. Stephen saw that the garage door was open even though it had been shut before. He saw the same woman he had seen in the window walking quickly down the street towards a parked car. She was accompanied by a younger female and a male person.
The deceased found three items missing, being the only photograph that she had of herself and the plaintiff and two letters the plaintiff had sent the deceased.
The plaintiff denied these allegations, saying it would have been impossible for her to climb through the window. She believes her mother was having a hallucination due to her medication. Karen supported her mother, also saying that she thought the deceased may have been delusional. There was evidence that the plaintiff found it difficult to drive. However, there is no medical evidence to support the theory that the plaintiff may have been deluded.
Keith gave evidence that he never saw anything to suggest that the deceased was delusional or anything but of sound mind. Keith also said that the deceased continued to believe her version of events until she died and it caused her a lot of distress and unhappiness. Keith's wife, Christina, also gave evidence that the deceased remained convinced that it had been the plaintiff in her bedroom, until the day she died.
Robert Ritchie says that he saw that the back screen door was tampered with, indicating forced entry. Karen gave evidence that the deceased had said "I saw [Denise's] car in the driveway."
In determining whether this event occurred, I must have regard to the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged (s 140(2) of the Evidence Act 1995.)
The allegation against the plaintiff is a very serious one. However the standard of proof remains 'on the balance of probabilities'. In Gianoutsos v Glykis [2006] NSWCCA 137 the court discussed the standard of proof that applied in civil proceedings where an allegation of serious wrongdoing was involved. Beginning at [45] McClellan CJ at CL (with whom Sully and Hislop JJ agreed) discussed the application of the test set out in Briginshaw v Briginshaw (1938) 60 CLR 336:
"Briginshaw is concerned with the circumstances when the obligation falling upon a moving party requires proof to the "reasonable satisfaction" of the judicial decision maker. That question will be informed by the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding" (Briginshaw at 362).
When allegations which are being investigated or pursued in civil litigation involve a finding that a crime has been committed, application of the "Briginshaw test" as it has come to be identified has few difficulties. Weight must be given to the presumption of innocence and exactness of proof is expected (Briginshaw at 363).
... [T]he approach to the making of conclusions considered by Dixon J in Briginshaw... should not be understood as imposing a test in civil litigation other than the balance of probabilities. However, what is required is that when loading the scales appropriate weight is given to the matters to which Dixon J referred.
The "Briginshaw standard" is often spoken of quite loosely and as if it is a third standard of proof sitting somewhere between the balance of probabilities and beyond reasonable doubt. This is wrong. As Dixon J points out the civil standard of proof is proof on the balance of probabilities requiring the relevant party to prove the elements of its case to that standard."
The fact that the only missing items were a photograph of the deceased with the plaintiff and letters from the plaintiff to the deceased, points strongly to the veracity of the allegation against the plaintiff.
However, in view of the very serious nature of the alleged conduct, the strong denial by the plaintiff and her physical disability which raises the issue of whether she would have been able to enter the window, I am unable to find that the plaintiff did in fact enter the deceased's house and stole items from her.
The finding that the defendant has not satisfied me of that incident does not detract from my finding that the plaintiff had a generally poor relationship with her mother from at least 2003, and had no contact with her from the end of 2007. I also keep in mind that letters that were sent by the plaintiff to her mother caused the deceased emotional distress.
The plaintiff's needs
It is necessary to see how the plaintiff says she has been left without adequate provision for her proper maintenance, education and advancement in life.
The plaintiff seeks an additional legacy of $140,000. She claims that this amount would allow her to:
modify her house to cater for her physical disability $30,000;
buy a small automatic car to replace the old manual car which, due to her physical disability, she has difficulty driving $25,000;
receive an operation to address the problems associated with her right arm $28,870;
have dental work performed $5,000;
maintain a contingency fund to cover future contingencies including but not limited to Home Care support services and future medical assistance.
In respect of the claims for surgery costs for her right arm this is to deal with the scarring from her childhood burns. She has been considering this for 30 years but could not get it done in the public hospital system at the commencement of that period. Even now she has doubts as to whether the surgery will be done and she will not make a decision on it for six to twelve months.
I note that there is no quote for the dental work or any detail of what is to be done.
The claim for a car and work on the house appear reasonable.
Obligation of a parent to provide for their child
In Taylor v Farrugia [2009] NSWSC 801 Brereton J discussed the applicable principles which relate to a claim by an adult child against the estate of a parent, at [57] - [58]:
"It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].
Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent."
There was no requirement that the deceased provide for her children equally (see, for example, Carey v Robson (2009) NSWSC 1142 at [57]). In any case the provision made by the deceased for each of her children was not "vastly disproportionate" as it was in Carey v Robson. The plaintiff received 20 per cent less of the estate than Stephen, and only 10 per cent less than the other children. The discrepancy is amply explained by the small estate, the contribution Stephen made to the deceased's welfare and the estrangement between the plaintiff and the deceased.
Section 60(m) of the Succession Act expressly states that the Court may consider, when determining whether to make a family provision order, the character and conduct of the applicant before and after the date of the death of the deceased person.
While it is appropriate to consider the nature of relationship between the plaintiff and the deceased at this stage, the focus of the Succession Act is not finding out where the fault lies in a difficult relationship, but whether, in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he or she in fact did to constitute proper or adequate provision for the plaintiff : Young J in Walker v Walker (NSWSC, 17 May 1996, unreported). His Honour in noted that:
"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously...It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, the court said, in relation to a situation of disharmony between parent and child that the moral duty of a testator to provide for their children continues:
"If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life.
The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed."
In certain circumstances, however, conduct of a child can justify a reduced, or no, provision to be made from the will of a parent. This was recognised by Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71] - [72]:
"It is one thing to make provision for a child, even an adult, where the court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.
It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years."
In my view the conduct of Denise in the last years of the deceased's life amounts to conduct justifying reduced provision. In this case the deceased recognised her continuing duty to Denise despite their estrangement and made provision for her as to 15 per cent of her estate.
The extent of the deceased's estate can be considered when determining whether adequate provision has been made, as well as the financial resources and needs of the other beneficiaries (s 60(c) and (d)).
In Foley v Ellis [2008] NSWCA 288 Sackville AJA (with whom Beazley JA agreed) stated that, in assessing whether the provision made for an applicant was inadequate, the needs of the other claimants on the deceased's bounty must be considered. His Honour said at [88] - [89]:
"... the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act.
The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231):
Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances ... The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors ."
In this case consideration of the other beneficiaries is especially important given the small size of the estate. In Re Buckland, deceased [1966] VR 404 at 412-413 the court recognised that, in a case of a small estate, the notion of what provision was adequate would need to be adjusted accordingly:
"In many of the cases coming before the courts the decision as to what maintenance it was proper for a testator to have allowed has been influenced by the circumstances that there was competition between dependants, all with moral claims for maintenance and support out of his estate, but the estate was not large enough to meet them all. Thus, what was considered to amount to adequate provision for the proper maintenance of a claimant has been held to be less than it would otherwise have been."
While it is evident that the plaintiff has a genuine need so do her brothers. In the context of the small estate and her relationship with the deceased I do not think that the provision made for her was inadequate.
As counsel for the defendant submitted, all four children of the deceased have some need for a 'contingency fund'. However given the size of the estate this is not possible. I note that prior to this litigation commencing, Denise's share of the estate was over $40,000; her share in the estate net of legal costs is now in the vicinity of $23,194.
When comparing the situation of the plaintiff and her brothers I note that the plaintiff owns her house free of encumbrances. In contrast Stephen is living in his daughter's garage, Keith has a mortgage of $50,000 and Richard has a mortgage of $194,000.
The Court is prohibited from interfering with the distribution of the deceased's estate, save to the extent that is necessary to ensure that adequate provision is made for the appellants' proper maintenance and advancement in life (see Smilek v Public Trustee [2008] NSWCA 190). In this case the plaintiff has failed to demonstrate that inadequate provision has been made for her.
In case I am wrong in that regard, I will turn to consider the second stage of the process as set out in Singer v Berghouse, namely whether the court should, in its discretion, make an order for provision of the plaintiff.
The defendant gave evidence of testamentary intentions of the deceased, which are relevant pursuant to s 60(2)(j) of the Succession Act . He said that the deceased had said words to the effect in late 2007:
"Denise is very clever at manipulating people and she may end up with what I leave Karen anyway [in relation to the 1994 will]. Denise has chosen not to be part of the family for many years. Stephen has given me everything he has given up his life to look after me and has given me a tremendous level of care. I really appreciate what Stephen has done for me. As you know, Stephen has no house of any other major assets and he has neglected his own health to make sure I am cared for properly. I can never replay [sic] Stephen properly for the sacrifices he has made for me and for all the love and kindness and care that he has given me. I really want to leave everything to Stephen."
And in March 2008 the deceased said to him in relation to her will:
"I did not leave everything to Stephen in the will because my solicitor advised me that there was a risk the will would be challenged if I did not leave something to each of my children. I told my solicitor in that case then I want to leave 25% to Keith and to you and 50% to Stephen. I told him I did not want to leave anything to Denise because of her estrangement from the family and the way she has treated me...My solicitor then advised me to leave 15% to Denise if I do not want my will challenged...I don't want to leave [Denise] anything but I don't see there is anything else I can do."
The defendant gave evidence of other occasions when the deceased told him that she wanted to leave "everything" to Stephen.
Stephen gave evidence of similar testamentary intentions, namely that his mother wanted to leave everything to Stephen and nothing to the plaintiff, but that she was leaving the plaintiff something because of her solicitor's advice (affidavit of 14 July 2011). Stephen said that the deceased sought advice very early in 2008 to change her will, and that she was changing her will because Karen had turned 21; because she "wanted to do something" for Stephen because of the care he provided her and because she knew of his poor health and limited financial position and partly because of the break-in to her home and theft of personal items in late 2007.
Richard's wife Jacqueline also gave evidence that the deceased said words to the effect that she was "so grateful to Stephen for looking after me as well as he does. I want to make it up to him somehow because he had given up so much of his life for me". Robert Ritchie also gave evidence that he heard the deceased say to her solicitor in relation to her will that she didn't want to give the plaintiff anything".
On the discretionary question, the plaintiff's claim would also fail. The plaintiff's poor relationship with the deceased is relevant at this stage as are Stephen's contributions to the deceased's welfare as her carer. There is ample evidence of the deceased's intention not to leave more than 15 percent to Denise, and to provide larger provision for Stephen in recognition of his services to her. The other beneficiaries had a strong relationship with the deceased and have a strong claim on the deceased's bounty. Had the plaintiff satisfied the court that inadequate provision had been made for her, these factors would dictate that the court's discretion be exercised so as not to provide further provision for her out of the deceased's estate.
Orders
I make the following orders:
(1) The plaintiff's summons is dismissed;
(2) I will hear submissions on costs.
**********
Decision last updated: 22 March 2012
8
3