Armstrong v Stagg

[1999] NSWSC 774

CITATION:	Armstrong v Stagg [1999] NSWSC 774
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4253/98
HEARING DATE(S):	20/07/99
JUDGMENT DATE:	20 July 1999
PARTIES :	Winston Lloyd Armstrong v Cecil George Staag
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr I. Roche for the plaintiff Mr D.G. Charles for the defendant
SOLICITORS:	Christopher Lee & Associates for the plaintiff Michael Kelly for the defendant
CATCHWORDS:	Family Provision. Application by widower. No matter of principle.
DECISION:	Para 20

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THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

TUESDAY 20 JULY 1999

NO 4253/90 - WINSTON LLOYD ARMSTRONG V CECIL GEORGE STAGG - ESTATE OF JENNIFER SOMERVILLE

JUDGMENT;

1 MASTER: This is an application under the Family Provision Act by the plaintiff in respect of the estate of the late Jenifer Somerville who died on 24 December 1997 aged 58 years. The deceased was survived by the plaintiff who had been living with her on a bona fide domestic basis for some years, her two sisters and one brother. Her brother, Mr Stagg, is the defendant.
2    The deceased had previously been married however she had no children and was divorced in the early eighties. There has been no notice given to her husband of these proceedings however I have heard evidence of the circumstances of that marriage as reported by the deceased to the plaintiff. Those circumstances indicate that the deceased had travelled to New Guinea on a boat that both she and her former husband had worked to acquire. Apparently the parting was not amicable and it appears that she left that relationship having been given an airline ticket and $100 to come back to Australia. Apparently it would seem that there was no contact with the former husband thereafter so far as the plaintiff knows.
3    The defendant himself does not know of those circumstances. The nature of the evidence would tend to indicate that any claim by the husband of the deceased would be one somewhat remote in time and given his occupation and the circumstances as recounted to me I am satisfied that I can disregard the interest of the former husband of the deceased.
4    Under the will of the deceased which was made on 5 November 1997 the deceased left the furniture and possessions which she had to the plaintiff together with a car. She also left $10,000 to the plaintiff as a pecuniary legacy. The balance of her estate was divided between her three siblings. The property which the deceased owned at the time of her death has been reduced to cash and the present amount which the estate has is $190,251.68. There will be costs which have to be paid out of this amount. There are firstly the cost of the administration of the estate and the sale of the realty which amount to $8,183.05. The defendants' costs in respect of this claim amount to $18,896. The plaintiff's costs if he were successful amount to $18,300. This is a total of $45,379.05. This leaves a net distributable estate of some $144,872.63.
5    It is useful to deal with some of the chronology dealing with the history of the deceased and those around her. The deceased herself was born on 26th September 1939. The plaintiff was born on 14 April 1946 in New Zealand. He completed schooling until year 10 and obtained a butchery apprenticeship. In Australia the deceased married John Somerville on 23 December 1967. In 1972 the plaintiff came to Australia and married. It was on the 31st May 1980 that the marriage between the deceased and Mr Somerville was dissolved. Thereafter in March 1987 she purchased a property at 4/45 Victoria Avenue, Penshurst for $42,000. There was a mortgage at that stage of some $35,700. In 1990 the plaintiff's marriage was dissolved and in May 1992 the plaintiff and the deceased met. In August 1992 the plaintiff moved into the deceased unit at Victoria Avenue, Penshurst. At that stage he was working for Kandweld Products earning the sum of $360 a week net. The arrangement that he and deceased came to led to the plaintiff contributing $100 a week together with $50 per week contribution to food. He also paid half the rates and other outgoings on the property. In effect $120 per week was used as his contribution for paying off the mortgage which still remained on the property.
6    In October 1992 the deceased had a lump removed from her breast and ultimately in July 1993 had her right breast removed. In August 1993 the plaintiff and the deceased agreed to become engaged and had a party to celebrate. There is some dispute about a ring but given the nature of these proceedings it is not necessary or appropriate that I resolve that dispute. The plaintiff himself had little by way of assets when he met the deceased. He did however have a car and a caravan and some other personal property which he sold. He purchased in February 1994 a fruit and vegetable business in Culburra. He then went to that business and operated it during the week. On the weekends either he would come back to the deceased's home or on the other weekends the deceased would come down to Culburra. Clearly they continued living together but only being together on the weekends. In November 1995 the mortgage on the deceased's unit was finally discharged. At about the same time the business that the plaintiff had been operating in Culburra failed and he came back to Sydney and resumed living with the deceased. The arrangements then were that he was paying $150 per week plus board plus half the outgoings.
7    Apart from the failure of his business the plaintiff apparently was concerned about the difficulties that the deceased was starting to have at that stage with her illness. She retired from work in April 1996 and at that stage there was also a change to the contribution. Apparently the plaintiff ceased to pay any amounts of contribution to the mortgage. It would seem that his contributions towards the mortgage amounted to something in the order of $12,310.
8    By August 1996 the deceased's illness was advanced to the stage where she was having chemotherapy and other treatment and in September she found out that she had inoperable lung cancer. The following year the plaintiff had some difficulty with his own health. In April 1997 he had an ankle reconstruction and in July he suffered from a burst pancreas. In October that year the deceased had not been very well and she went to Tasmania to see her brothers and sisters and make other arrangements given her pending death. In November 1997 she made a will. On 21st November 1997 the plaintiff and the deceased moved out of the deceased's home into a rented unit at 10/33 Oxford St, Mortdale. The reason was quite simply that in the deceased unit there were a large number of steps which she could no longer manage and she needed a level entry to move to and from her home. By the middle of December she had to go to hospital because of her illness and she was transferred to Calvary Hospital on 20 December. She died four days later.
9    In due course probate was granted and these proceedings were commenced within time. By October 1998 the plaintiff became entitled to a full disability support pension because of health problems from which he was suffering. The result of that was at the end of April 1999 the deceased’s property was sold and there were funds which now make up the distributable estate.
10 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 1812 CLR 201 set out the two stage approach that a Court must take. At page 209 it 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 'roper' and the interrelationship which exists between 'adequate provision' and 'roper 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 proceed, the court may need to arrive at an assessment of what is the property 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".

11    The plaintiff's situation is fairly simple but not a happy one. He is fifty three years of age, he has no dependents. He does have children but they however are self supporting. One of his children lives up on the Sunshine Coast in Queensland as does his brother. Presently he receives an invalid pension of $420 a fortnight. The rent of the premises in which he and the deceased lived was $440. Clearly he cannot meet the expenses and he is relying upon his son to support him and keep him. His cash reserves have dwindled away. He did sell the car which he received under the will for $7500 and he went back to New Zealand and spent some $1700 of those funds on that trip. Given his age and his desire to see his birth place again, that was not an unreasonable expense. However most of those funds have gone and all he has left now is his pension entitlement of some $5,000 and $300 or $400 in the bank. He owes $1800 on his Master Card. His personal situation in some other respects is not good mainly because of health reasons. He had his driver's licence cancelled because he has a sleep apnoea condition which causes him to doze off. He has problems with his ankles and he has difficulty walking in winter time. His burst pancreas requires medication and he presently takes some nine tablets a day. Apart from that medication he also takes other medication. Clearly his condition is such that he can no longer work.
12    The other things that the Court has to consider in a case such as this are the ways in which the plaintiff has been left without adequate and proper funds for his maintenance education and advancement in life. In this regard the plaintiff primarily puts forward his lack of a residence and any assets of any substance. Certainly as I have said he is unemployable. He has given consideration to his present situation and sensibly sees that he cannot afford to continue where he is. He wants to move up to Maroochydore on the Sunshine Coast to be near one of his children and his brother. He has looked around for units in that area which cost between $60,000 and $90,000 for a two bedroom unit. He did not investigate rental properties but he concedes that rent would be somewhat less than he is paying in Sydney. As I have mentioned the plaintiff has contributed to the estate of the deceased and particularly in paying amounts that have been used towards paying off the mortgage. He also has received some benefits from the estate not provided for in the will. These were firstly payments of $880 towards his rent which he was authorised to take from the account by the deceased. However that account was subsequently closed by the executor. He also has the benefit now of a bond of some $880 which has been paid to the landlord. At the present place where he is living he apparently has succeeded to the deceased's tenancy. I think in considering what alteration I might make to the provision of the will I will take these factors into account in deciding the appropriate provision.
13    It is necessary for the court to also have regard to the situation of other persons who have a claim on the bounty of the deceased. In the present case the only ones who have to be considered are the deceased siblings.
14    Mr Stagg is the youngest child of the four children. He himself has retired. He is married and is aged fifty eight years. He and his wife have a joint pension of some $591 a fortnight. Clearly that would be expended by them on their day to day living expenses. Their asset situation is that they have a house and contents at 43A Bain Terrace Trevallyn estimated at $120,000, a motor vehicle valued at $7,000, a boat estimated at $2,000 and superannuation which he indicates has yet to be received, a total of some $61,800. He is not able to work and that arises from a condition which he suffers from. He has ankylosing spondylitis which affects his spine and that severely restricts his movements. He is on treatment for that and because of that disability interfering with his ability work he had to cease work. Accordingly he simply receives his pension entitlement.
15    The next person that has to be considered is Irene May Bourke. She is aged 69 and likewise has no dependents. Her asset situation is that she and her husband have their home worth $90,000, a car worth $12,000 and cash of some $3,000. They do have debts of some $3,200. They also exist on a pension of some $600 a fortnight. Their personal situation is somewhat difficult in that they do not enjoy good health. She has a problem with her heart and takes medication to relieve her angina. Her husband who is seventy two years old has arthritis which makes it extremely difficult for him to move about. They have special requirements for cleaning the house and assistance and they have a difficulty with their present accommodation. Their house has a number of levels and that is quite unsuitable for her husband. They need to purchase another property but obviously they have no funds to enable a change over and to meet expenses. Those expenses are likely to be in the order of $7,000. There is also a problem that her husband has an injury to his eye which will require treatment and there will be a need to travel to Melbourne for that to be done. Although these matters affect her husband, directly they do affect her because of their meagre resources and being reduced to living on the pension.
16    The other person is Iris Merle Butler. She is aged 66, married and has no dependents. She and her husband have a house worth $80,000, savings of $13,000 and a car of $14,000. They likewise live on a joint pension of somewhere in the order of $500 per fortnight. Neither of them can work. Mrs Butler's husband has had bypass surgery and also requires a total knee replacement. She has concern about where they might need to live in the future and this is not unnatural given the difficulty which her husband has in getting about. Accordingly they also are anticipating that they may have to change their residence and move to a different type of accommodation.
17 In matters such as this it is necessary to look at the claims on the estate. Widows claims are frequently the subject of applications in this court. The Court of Appeal in Goloski v. Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciana v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow as been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that light might bring".

18    The same principles apply to widower's claims and others who are the de facto partners of the deceased. If one looks at that standard one has to note a number of matters here. The principle one is of course the relationship between the plaintiff and the deceased. It was a short one unfortunately for them. They only had five years so one is not here dealing with the situation to which the court was referring but something less. There was of course the period when the plaintiff was working Culburra. There is nothing in the evidence which would suggest to me that the de facto relationship and the closeness between the parties dissipated at this time. After all the evidence is that they spent each weekend together. The other thing that has to be borne in mind is of course that there was the support both morally and physically that the plaintiff provided to the deceased in 1996 on when the deceased's illness became worse. Although the depth of care increased later in August 1997, certainly there was the moral support and the transport and other matters provided by the plaintiff to the deceased in 1996. The close support and personal attention given by the plaintiff to the deceased over the closing months of her illness bespeak of a closeness and a depth of relationship.
19    Normally in matters such as this the brothers and sister's claims normally would fall behind that of a spouse or partner. However the brothers and sisters are not in a good situation and clearly their difficult and financial circumstances should be taken into account. Accordingly it is appropriate that there be an increase in the provision of the legacy in favour of the plaintiff.
20    The orders that I make are as follows:

1. In lieu of the legacy in favour of the plaintiff in the sum of $10,000 who receive a legacy of $80,000.
2. The defendant's costs on an indemnity basis and the plaintiff's costs on a party and party basis to be paid or retained out of the estate.
3. The exhibits can be returned.

oOo

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