Barber v Barber - [2020] TASSC 45

[2020] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Barber v Barber [2020] TASSC 45

PARTIES:  BARBER, Judith Rose
  v
  BARBER, Joy Elizabeth as executrix of the

Estate of the late Rex Ernest Barber

FILE NO:  425/2010
DELIVERED ON:  16 September 2020
DELIVERED AT:  Hobart
HEARING DATES:  1 July, 12 August, 16 September 2020
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Surviving spouse or partner – Paramount claim principle – Widow should have sufficient to remain in the family home – Widow's claim to stay in the home stronger than the claim of the sole beneficiary being an adult daughter.

Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1427]

REPRESENTATION:

Counsel:
             Applicant:  D Zeeman
             Respondent:  D Marcenko
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Respondent:  Ogilvie Jennings

Judgment Number: [2020] TASSC 45
Number of paragraphs: 20

Serial No 45/2020
File No 425/2019

JUDITH ROSE BARBER v JOY ELIZABETH BARBER
as executrix of the Estate of the late Rex Ernest Barber

REASONS FOR JUDGMENT HOLT AsJ

16 September 2020

The applicant, Mrs Judith Barber, instituted this proceeding at age 87 years. I begin by setting out the circumstances which led to Mrs Barber, notwithstanding her advanced years, taking on the stress and potential financial consequences which are often an incident of Supreme Court litigation.
Mrs Barber had been married for 62 years when her husband, Rex, died, aged 91 years, on 5 July 2018. The couple had lived in their circa 1953 weatherboard home on the Esplanade at Rose Bay in Tasmania since they jointly purchased it in 1978. According to a 2019 valuation the house is worth $975,000. Mrs Barber is able to continue to live in the home independently and wants to continue doing so. The home and its contents were the couple's only assets of substance at the time of Mr Barber's death. There was a modest cash reserve but this was insufficient to pay the funeral expenses. Neither Mrs Barber nor her husband had superannuation investments.
The home and, presumably, its contents were jointly owned and would pass on survivorship. Although there was probably no need to do so, the couple made wills for the first time in February 2018. By his will, Mr Barber named his wife as executrix of his estate and left everything to her if she survived him by 30 days and, in the event that she did not, his estate was to go to the couple's sole surviving child being the respondent, Joy Barber. Mrs Barber, by her will, appointed her husband at executor of her estate and left everything to him if he survived her by 30 days and, in the event that he did not, the estate was to go to the daughter, Joy Barber.
An arrangement was made by Joy Barber for her father to see a different solicitor following the signing of the February 2018 will. The new solicitor was then an employee of the legal firm now representing the respondent. She took her father from the nursing home, where he was a resident, to the new solicitor's office on 20 June 2018 and assisted him in getting to a meeting room in the building. The new solicitor and Mr Barber met in the absence of Mr Barber's daughter and Mr Barber advised that he wished to leave everything to his daughter. The solicitor discussed with Mr Barber the difference between joint tenancy and tenancy in common and advised Mr Barber that in order to leave his share in the house to his daughter the joint tenancy would need to be severed. The solicitor prepared the documents and on 27 June took the documents to the cardiac ward of the Royal Hobart Hospital, where Mr Barber was an inpatient. Mr Barber appeared to the solicitor to be "quite weak" and was tiring as the will was being explained to him. Mr Barber signed the new will and the declaration severing the joint tenancy in the presence of the solicitor during this bedside meeting. The declaration severing the joint tenancy was registered in the Land Titles office on 2 July and Mr Barber passed away three days later.
Mrs Barber did not hear of the new will until after her husband's death. Her daughter obtained probate on 5 December 2018 and Mrs Barber, through her solicitors, in February 2019 filed with the Court her application for an order making provision for her from her husband's estate.
An affidavit from Mr Barber's new solicitor was read in the proceeding. It contains detail as to the circumstances in which instructions for the new will issued. The detail runs to five pages comprising 23 paragraphs. It contains no mention of any advice being given in relation to the possibility of Mrs Barber bringing a claim for family provision. Under cross-examination the new solicitor said that he did raise the possibility of such a claim as "an element of my consideration of Mr Barber's capacity". The solicitor was unable to recall what he said and whether or not Mr Barber responded. He gave evidence that he did recall that Mr Barber was insistent on following through with the proposed bequest to his daughter. Even on a consideration of testamentary capacity, apparently, this did not raise any concern on the part of the solicitor that Mr Barber may not have been capable of understanding his responsibilities or the consequence for Mrs Barber of what was proposed.
Of course, the solicitor, in the circumstances of the case, was under a duty to advise about the possibility of a family provision claim being made by Mrs Barber. He knew that Mr Barber was married and could easily have ascertained from Mr Barber the age of his wife, her lack of independent means, other than the aged pension, and her expectation that she would be able to continue to reside in the family home after his death. As to the solicitor's duty, see Badenach v Calvert [2016] HCA 18; 257 CLR 440 at [27]-[30]. It is unnecessary and inappropriate on the limited materials available to me, having regard to the scope of the present dispute, to consider the following. What the content of the solicitor's advice should have included. Whether the advice given (if any) contained the necessary inclusions; and, if not, whether, if given, appropriate advice would, on the balance of probabilities, have led to Mr Barber not proceeding with his instructions for a new will in the form ultimately admitted to probate.
Under the terms of the will, Mr Barber's estate is to be converted into cash and the proceeds paid to his daughter. The will contains a power vested in the executrix to postpone sale, but she has said that she believes the house will have to be sold to cover legal costs incurred in this proceeding. She had been told that the costs amount to about $60,000. She also said that she wished to "respect" and "honour" her father's testamentary wishes.
It is necessary to consider the relationship between Mr Barber and his wife of 62 years and then to consider the relationship between Mr Barber and his daughter.
In 1991, being about 35 years into the marriage, Mr Barber had entered into a sexual relationship with another woman. His wife discovered it and challenged him but he continued with the liaison. Thereafter sexual relations between the couple permanently ceased but they continued to share the same bed and remained married. Mrs Barber retired from her employment as the librarian at St Michael's Collegiate School in Hobart in 1991 and has not been employed since. In 1992 she commenced receiving the aged pension, having advised Centrelink that she was separated but living under the same roof as her husband. The couple remained living together in the Rose Bay home until early 2018. At that time Mr Barber, because of his failing health, was admitted to a nursing home. Mrs Barber's uncontested evidence included the following:
"28Our relationship stayed the same although from that time whilst we continued to share a bed, we did not have a sexual relationship. We both did our own things during the day and at night after dinner, which was always prepared by me, would sit in the lounge room, and while Rex watched his DVDs or read a book, I quilted.
29I had the role of 'unpaid housekeeper'. I was responsible for all entertaining, cooking, cleaning, washing, and ironing in the household. Rex did absolutely no house-keeping or cooking for himself and I continued to do all of that for him until the time when he moved into respite care. Rex was the quintessential male who 'could not boil an egg'.
...
48When Rex became a resident of Queen Victoria Nursing Home at Lindisfarne, I visited him almost every day and spent much of the day with him.
49Apart from the fact that Rex and I had a different type of relationship from the time he had an affair, we really were no different, in my view, to many other married couples and I continued to love him and care for him until the day of his death."
Mr Barber enjoyed a strong relationship with his daughter. In 1984 his daughter and the man she later married (in 1986) moved into Mr and Mrs Barber's home, entertaining their friends whilst Mr and Mrs Barber confined themselves to the music room. The daughter had her first child, Xavier, in 1989 to another man whom she would marry in 1996. They had a second child, Celeste, in 1999. Mrs Barber's affidavit, in respect of a period commencing in about 1994, contains the following:
"At the same time, Joy and Mark had bought a bakery in Devonport.
I constantly assisted them with the bakery. I did most of the household jobs as well as working at the bakery from 6:00am, and helping take care of her 5 year old son at the time. I worked 16 hour days most days, did long drives for deliveries, and all of that at my own expense.
Joy and Mark wanted us to mortgage our house to help them financially at the time. We did not do it but Mark got money from his own mother who lost her home as a result. Joy and Mark also eventually lost their house when the bakery failed.
Joy then returned to live with Rex and me free of charge and studied at UTAS while Mark stayed in Devonport. Joy would return to Devonport each weekend to see Mark who worked there. He got a good job as he was business minded and he looked after their son.
Mark eventually got another job with Tassal and he moved back to Hobart. They rented a house in Taroona at the time, then Margate and finally Rosny.
Mark and Joy eventually ended their marriage. Rex agreed that Joy and her children who at that time were 5 and 15 years of age could come and live with us but to pay board at the rate of $150.00 per week.
Xavier then joined the navy but Joy and Celeste stayed with Rex and me for six years.
...
Joy married her third husband in June 2015, Milan Milojevic ('Milan') and left our home. She never paid rent as had been agreed during the whole six years she lived in our house. At the time she left us, she owed us $22,350.00 in board which she never paid. ...".
I conclude that Mr Barber was always supportive of his daughter and that Mr and Mrs Barber made significant personal and financial sacrifices in providing the support which they did.
The daughter is not well off financially. She married her present husband in 2015, with whom she had been in a relationship since 2006 and with whom she had commenced cohabitation in 2011. She held, and still holds, part-time employment as an art curator at the Hutchins School in Hobart, earning a little over $27,000 per year. Her husband is in poor health and she receives a carer's pension of $508 per fortnight. Her husband receives a disability pension, also in the amount of $508 per fortnight. They have no dependent children. Despite being well into her 50s, the daughter has a HECS debt of about $30,000. The couple own a house in Mt Stuart which is unencumbered. They have superannuation investments which have a present value of about $80,000 following a recent withdrawal of $10,000.
The facts which I have recited in these reasons were not the subject of controversy.
The application for family provision is made under the Testators Family Maintenance Act 1912, s 3. Under the provision a discretion to intervene arises if Mrs Barber has been "left without adequate provision for [her] proper maintenance and support".
Mr Barber made no provision for his wife in his will with the result that, if things are left as they are, she will be forced out of her family home of about 40 years and left with half the sale proceeds to find alternative accommodation. As to this, the respondent, through her counsel, has said in closing submissions:
"It is respectfully submitted that the Applicant has not discharged the onus cast upon her to demonstrate that she has been left without adequate provision for her proper maintenance and support.
...
The Applicant is not entitled, as a matter of right, to look to the deceased's estate to provide accommodation for life, or any provision for that matter. ...
The Applicant is far from an archetypal widow and her application should be considered in the context of the Respondent's strong competing claim. In the circumstances she should not enjoy any particular advantage in pursuing her application ...
In order for a court to award provision, an applicant must have shown a 'need' ... The Applicant has not shown any relevant need in this case.
...
The Applicant has repeatedly expressed a fanciful desire to remain at 83 Esplanade. However, this is an utter impossibility regardless of the judgment of the Court. The liquid assets of the estate will be grossly insufficient to meet the costs of this litigation. This can be gleaned from the estate inventory appearing at page 14 of the Court Book and from the conservative evidence of the Respondent that she anticipates that the costs of the litigation to be approximately $60,000.
The Applicant has elected not to give evidence : -
a)Where she intends to reside following the sale of 83 Esplanade;
b)What costs she would incur in paying an accommodation bond;
c)How luxurious would be the accommodation she could secure utilising the proceed of her half interest in 83 Esplanade (which interest is valued at $487,500);
d)What rental expenses the Applicant may incur if she chooses to live independently;
e)What regular expenses she incurs which her fortnightly income of $944.30 cannot meet;
f)What would be her expenditure should she move;
g)Any extravagances that she was used to in the course of her lifestyle prior to the deceased's death;
h)Any enforceable debts whatsoever; or
i)Any anticipated expenditure incidental to any health conditions.
The Court is left to resort to conjecture and surmise about what the Applicant's needs will be upon 83 Esplanade being sold. The Applicant should not be afforded any generous assumptions in the circumstances." [Case references omitted.]
Having regard to Mrs Barber's financial position, the size and nature of the estate, the relationship between Mr and Mrs Barber, the relationship between Mr Barber and his daughter and the daughter's financial position, I find that Mrs Barber has been left without adequate provision for her proper maintenance and support. Accordingly the discretion has been enlivened. Having regard to the matters to which I have already referred, I consider that the discretion should be exercised to make provision for Mrs Barber.
In considering what provision ought to be made, I have concluded that Mrs Barber should be left with the chance of remaining in the family home for so long as she is able to do so and wishes to do so. I consider that if and when the time comes for her to move out, she should be left with sufficient proceeds to allow her to purchase a suitable new residence and have sufficient funds left over to enable her to live without continuing financial anxiety. I have considered provision by way of a life interest in the estate share of the home but have concluded that this is not appropriate as it would entail the appointment of an independent trustee, with the associated expense, and it would deprive Mrs Barber of the degree of financial autonomy which she should have.
I make the following orders:
1The estate is to be distributed as if in cl 4.1 of the will the words, "to my daughter, Joy Elizabeth Barber" were substituted with the words, "to my wife, Judith Rose Barber", and the power of the executrix to sell, as contained in cl 3 of the will, is absent any Court direction to the contrary conditioned upon the consent of Judith Rose Barber or her attorney or representative.
2The respondent is to bring into Court the grant of probate and a certified copy of these orders is to be made on the probate of the will.
I will hear the parties as to the costs of the proceeding.