Benham v Benham

[2004] NSWSC 416

CITATION:	Benham v Benham [2004] NSWSC 416
HEARING DATE(S):	1, 2, 3, 4, 5, 19 March 2004
JUDGMENT DATE:	18 May 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that the Plaintiff receive provision in the sum of $60,000 out of the notional estate of the late Margery Winifred Benham ("the Deceased"), and that such provision not bear interest if paid on or before 18 July 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898; (2). I order that the following assets held respectively by the First Defendant and the Second Defendant be designated as notional estate of the Deceased: (a) AMP allocated annuity, (b) AMP allocated annuity; (3). I order that the costs of the Plaintiff on the party and party basis be paid by the Defendants; (4). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult son - Relationship between Plaintiff and Deceased - Distributions inter vivos by Deceased - Effect of such distributions was to dispose of entirety of assets of Deceased - Prescribed transactions - Notional estate - Plaintiff named as a beneficiary in last will of Deceased - Competing claims of other beneficiaries - Statements made by and attributed to Deceased - Conduct disentitling.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Hunter v Hunter (1987) 8 NSWLR 573 Singer v Berghouse (1994) 181 CLR 201
PARTIES :	John Frederick Benham (Plaintiff) Richard Jenkyn Benham (Defendant)
FILE NUMBER(S):	SC 1362/02
COUNSEL:	M. Tzannes (Plaintiff) A. Todd (Defendant)
SOLICITORS:	Colin J Duff, Solicitor (Plaintiff) Brock Partners, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 18 May 2004

1362/02 JOHN FREDERICK BENHAM -v- RICHARD JENKYN BENHAM

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 4 February 2002 John Frederick Benham claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of his late mother, Margery Winifred Benham (to whom I shall refer as “the Deceased”). Subsequently an amended summons was filed on 12 March 2003, the only alteration in that amended judgment being a reference to the fact that the “estate and/or notional estate [had] been transferred to the Defendants”.

3 The Deceased died on 6 February 2001 aged ninety-three years. She left a will dated 21 February 2000. The executor named in that will is Richard Jenkyn Benham, originally the only Defendant to the present proceedings, but now the First Defendant herein. He has never applied for probate of that will, “as the estate is insolvent”.

4 By that will, the Deceased gave her entire estate, after payment of debts and testamentary expenses, equally among her daughter Lesley Margery Kirby, the Plaintiff and Kim Louise Walker (who is the daughter of Richard Jenkyn Benham).

5 The Deceased was a widow at the time of her death, her husband, Jenkyn Benham, having died in 1990, aged ninety-six years.

6 The Deceased was survived by her three children, being Richard Jenkyn (born 10 October 1937), Leslie Margery (Mrs Kirby) (born 28 October 1939) and John Frederick (born 21 October 1949).

7 The Plaintiff on 2 August 2002 obtained a grant of administration of the estate of the Deceased, pursuant to section 41A of the Wills, Probate and Administration Act 1898, for the limited purpose of making his present claim under the Family Provision Act.

8 I have already referred to the fact that the Plaintiff on 12 March 2003 filed an amended summons. That document was filed pursuant to leave in that regard granted by the Court on 7 March 2003. On that occasion the Court also granted leave to the Plaintiff to join as additional Defendants Lesley Margery Kirby and Kim Louise Walker.

9 In about mid-1999 the Deceased, in consequence of advancing years and declining health, departed her former matrimonial home at 36 Oatley Parade, Oatley (“the Oatley property”), and entered a retirement establishment known as Banks Lodge at Beverley Hills. Subsequently the Oatley property was sold, in order to fund the Deceased’s entry contribution to Banks Lodge in the sum of $98,004. From the sale proceeds of the Oatley property in the sum of $415,474 the First Defendant, on the instructions of the Deceased (whose attorney under power he was) distributed the sum of $60,000 (less agreed deductions of $7,733, to which I shall later refer) to the Plaintiff. The balance of the proceeds of sale was shared equally between the First and Second Defendants. After the death of the Deceased (who had suffered a fall at Banks Lodge in December 2000 and had in consequence thereafter been admitted to hospital, and then entered the Bexley Nursing Home), the Deceased’s entry contribution was refunded by Banks Lodge on 25 January 2001 in the sum of $89,695.

10 In accordance with what was stated by the First Defendant to be the wishes of the Deceased expressed to him, he caused the sum of $90,000 to be distributed by way of bank cheques from the Deceased’s account to the Plaintiff in the sum of $30,000, to the Second Defendant in the sum of $30,000 and to the Third Defendant in the sum of $30,000.

11 According to the First Defendant, the Deceased owned no other assets of any substance, apart from some small items of jewellery, clothing and furniture and the content of her aforesaid account, with the Commonwealth Bank at Oatley. At the date of the death of the Deceased on 6 February 2001 that bank account held a credit balance of $5,174, to which additional deposits were made in the sum of $615. When the account was closed on 2 May 2001 it held a credit balance of $5,790.

12 From that bank account the First Defendant made payments (in respect to debts, funeral expenses, overpayment of pension from the Department of Veterans Affairs) totalling $4,509. The balance then remaining, $1,280, was entirely exhausted by the payment of legal fees owing to Owen Hodge Lawyers, in respect to legal affairs of the Deceased, in the sum of $1,584. The First Defendant paid the totality of that sum, which had the effect, according to him, of leaving the estate of the Deceased insolvent to the extent of $303.37.

13 Evidence was placed before the Court concerning the costs of the respective parties in the proceedings. It was estimated on behalf of the Plaintiff that his costs totalled $33,850 for a three day hearing; whilst it was estimated of behalf of the Defendants that their costs, for a two day hearing, would total $38,230. In the event, the hearing occupied more than five days.

14 The Plaintiff is presently aged fifty-four. He left school at the age of fifteen, and has no trade skills or employment qualifications. He has had a disrupted employment history. On at lease two occasions (the first being when he was aged only about seventeen or eighteen) the Plaintiff has been hospitalised on account of suffering depression (on each occasion having been admitted to the psychiatric unit of the Kogarah Hospital).

15 The Plaintiff lived at home with his parents (apart from a short period whilst he was in the Royal Australian Air Force) until his first marriage, in 1979, when he moved to the Australian Capital Territory. That marriage ended in divorce five years later. The Plaintiff married his second wife in 1986, and purchased a residence at Greenacre. That second marriage terminated in divorce in 1999. After a property settlement with his wife and payment of legal expenses the Plaintiff was left with $9,000.

16 Subsequently the Plaintiff worked at various times as a bus driver and as a coach driver, and later for the State Rail Authority. After the termination of his employment with the State Rail Authority, the Plaintiff in November 1998 applied for voluntary bankruptcy, his liabilities at that time totalling $55,000. He was subsequently discharged from bankruptcy on 14 June 2001.

17 The Plaintiff had resided intermittently with the Deceased after the breakdown of his first marriage and subsequently from January 1999 until the Deceased moved to Banks Lodge in June of that year. The Plaintiff is presently residing in rented accommodation at Mortdale.

18 In May 2000 the Plaintiff commenced work with the Royal North Shore Hospital as a patient transport driver. He still continues that occupation, being now located at the St. George Hospital.

19 A very considerable quantity of evidence was presented on behalf of the Defendants concerning the relationship between the Plaintiff and the Deceased, with a view to establishing that that relationship was not a good one, that the Plaintiff was not a dutiful son to either of his parents, and in particular to the Deceased, that the Plaintiff received significant financial benefits from the Deceased during her lifetime (as well as from his father, whilst that parent was alive), and that he was not appreciative of those benefits. In addition, the Defendants adduced evidence concerning an incident to which I shall in greater detail refer later in this judgment, when during the lifetime of the Deceased the Plaintiff caused to be published in a newspaper a death notice in respect to the Deceased.

20 Many of those incidents asserted on behalf of the Defendants were denied or disputed by the Plaintiff.

21 In his affidavit of 25 November 2003 the Plaintiff set forth his assets and liabilities are as follows:

Assets

2001 Hyandai Accent sedan motor vehicle, $10,500

Furniture, furnishings, appliances and small wine cellar, $5,580

Westpac Bank savings account, $240

Westpac Bank cheque account, $53

Cash on hand, $50

Superannuation entitlements, $8,700

TOTAL: $25,123

Liabilities

Credit card debt (approximate), $1,800

Car insurance, $539

Car registration, $565

Taxation liability, $1,220

Dental account, $260

Pathology account, $120

TOTAL: $4,504

22 The Plaintiff’s income (which varies from fortnight to fortnight, depending upon what shift he works) is approximately $1,079 net a fortnight.

23 The Plaintiff has the following fortnightly expenses:

Rent, $380

Car repayment, $93

Car running expenses, $83

Electricity, $30

Telephone, $15

Credit card repayment, $70

MBF insurance, $35.40

Food and general living expenses, $175

TOTAL: $881.40

24 The Plaintiff was until recent times attempting to save $125 out of each pay by depositing that amount into his ING savings account.

25 According to the Plaintiff his position as a driver is not well paid. He has considered pursuing various courses in community services work or home and community care as a possible means of advancing in his current employment. He has also considered pursuing a course in property practice. He has discussed with the human resources department of the St George Hospital the possibility of obtaining leave to undertake such courses on a part-time basis. He has been informed that approval of a course could be given if the department was of the view that it would be of benefit to the hospital.

26 The Plaintiff suffers various health problems. He has a hearing loss and requires a hearing aid. He has recently experienced burning chest pain and has been referred to the Southern Heart Centre for an Exercise ECG. However, at present he is unable to afford the cost of that procedure or the cost of a hearing aid. The Plaintiff is currently seeing Dr Jaffe every two weeks, as well as his local general practitioner, Dr Taplin. In addition, the Plaintiff is being treated by a urologist, Dr Aslan, and he is to undergo treatment for possible prostate cancer.

27 According to his affidavit of 25 November 2003 the Plaintiff has been considering the possibility of acquiring a rural property, either to live in or as an investment, if he be successful in obtaining an order for provision in the present proceedings. As a result of his inquiries he expects that it would be possible to purchase a 2/3 bedroom residence on the New South Wales Central Tablelands for between $150,000 and $200,000. To that affidavit he annexes the results of an internet search he has conducted concerning properties in that area between the prices of $100,000 and $250,000. He said that if he were able to obtain employment in one of those country centres it would be his intention to remove from Sydney and to reside there. Otherwise, he would like to attempt to purchase such a property, rent it out, and ultimately obtain a capital gain from the transaction, which he could realise in his retirement.

28 The First Defendant annexed to his affidavit a typewritten statement dated 7 March 1997 which was signed by the Deceased. That statement is admissible into evidence pursuant to the express provisions of section 32 of the Family Provision Act. That statement is in the following terms:

My son, John Benham has been living at home with me during the past two years. In that time, he has not offered to pay anything towards the cost of his meals nor towards the running expenses such as electricity or telephone despite his heavy usage of same.
Since his early teens, his late father and myself have given him at least $50,000 for such reasons as preventing various cars and bikes being repossessed and during his two previous marriages, we had paid for landscaping, furnishings and the like.
During all this time, no effort was ever made to repay us in any way. I could have easily overlooked this had John shown some gratitude for the help he has received but, on the contrary, he has looked upon it as his due and I now regret that my husband and I did not adopt a firmer approach years ago.
I am living off the pension and a very small capital and I am finding it impossible to provide for the extra expense of keeping John at home. I have attempted to broach the subject of his leaving but I am very apprehensive about doing so as he is likely to react in a manner which frankly frightens me. I believe that he is quite capable of being violent towards me.
I now feel that John’s behaviour towards me which is, to say the least, dismissive and contemptuous, should exclude him from sharing in my estate in equal proportion to my daughter, Lesley, and son, Richard who have been most supportive over the years. I believe that John will be anything but sad when I die as he will then have what he has referred to as his inheritance. I have no doubt that he will quickly waste this money and for this and the other reasons I have stated. I have decided that I will restrict my bequest to him from my estate to sixty thousand dollars ($60,000.00) and bequeath the rest of the estate in equal portion to my daughter, Lesley, and son, Richard.
I have instructed my solicitor to draw up my Will accordingly.
DATED 7 MARCH 1997

[signature]

MARJORIE WINIFRED BENHAM

29 On the same date as she signed the foregoing statement the Deceased also executed a will, by which she gave to the Plaintiff a legacy in the sum of $60,000, and a one third share of the contents of her home. After disposing of her jewellery, the Deceased then gave the residue of her estate to be divided equally between her other two children, being the First Defendant and the Second Defendant.

30 The Deceased made a subsequent will on 3 December 1998, under which the Plaintiff received a benefit identical to that in the will of 7 March 1997.

31 I have already referred to the provisions of the final will of the Deceased, that of 21 February 2000, in which the Plaintiff , the Second Defendant and the Third Defendant shared equally the entirety of the estate of the Deceased.

32 Apart from the foregoing written statement of the Deceased, various other statements attributed to the Deceased, concerning the Plaintiff, are set forth in the affidavit of the First Defendant of 17 February 2003. Those statements are, in the main, unfavourable to the Plaintiff, and suggest that the relationship between the Deceased and his mother whilst the Plaintiff was residing with her in the late 1990s was far from satisfactory. Those statements also refer to various amounts of money which the Deceased is alleged to have withdrawn from her bank account in order to pay the Plaintiff. Those amounts ranged from $20 to $200.

33 The Plaintiff in his evidence denied the content of most of those statements attributed to the Deceased.

34 On 20 March 2000 the Plaintiff caused to be published in the Death Notices of the Sydney Morning Herald of that date a notice in the following terms,

BENHAM, Margaret Olive – March 19, 2000, formerly of Penshurst Nursing Home. Dearly loved mother of John, Rick and Leslie.
Now at peace and sadly missed by the family.
Aged 94 years.

35 It will be observed that the given names, “Margaret Olive”, appearing in that advertisement, were not the correct given names of the Deceased, which were “Margery Winifred”. The spelling of the given name of the Deceased’s daughter was incorrect, and the identity of the nursing home and the age of the Deceased appearing in the advertisement were not accurate either.

36 Upon being confronted by the First Defendant concerning the advertisement, the Plaintiff, according to the First Defendant, at first denied that he was responsible for placing the notice; but when informed by the First Defendant that he had obtained from the Sydney Morning Herald details of the person who had lodged the notice, the Plaintiff admitted that he had done so. The conversation between the Plaintiff and the First Defendant then deteriorated. Subsequently, the First Defendant wrote to the Plaintiff concerning the lodgement of the death notice.

37 There was also evidence presented on behalf of the Defendants concerning an incident alleged to have occurred in late 2000 when, at the instance of the Deceased, Mr William Francis Alldritt, the Chief Executive Officer of the Georges River Presbytery Aged Care (of which Banks Lodge was a component) had a confrontation with the Plaintiff in which he forbade the Plaintiff to visit that facility and in consequence whereof he reported the matter to the Police and engaged a security guard for the specific purpose of preventing visitations by the Plaintiff to that facility. The Plaintiff denied that any such incidents had ever occurred.

38 The First Defendant is presently aged sixty-six. He separated from his first wife in 1979 and after their divorce he married his present wife in 1981. Upon that marriage he and his second wife, on account of financial circumstances, resided for two years in a caravan located in the backyard of his parents’ residence at Oatley. They then removed to a houseboat at Tom Ugly’s Marina, where they resided for twelve years.

39 According to the First Defendant, he maintained regular contact with his parents and, after the death of his father, with his mother, assisting in maintenance on the Oatley property, including mowing of lawns. In 1998 the First Defendant and his wife returned to the caravan at the Oatley property, in order to give further assistance to the Deceased. During that time the First Defendant said that they were paying half of the electricity, telephone and municipal rates on the property.

40 At the end of September 1999 the First Defendant retired from the employment in which he had worked for the preceding nineteen years, that retirement being due to ill health. Two years later his wife also retired from employment, having worked for twenty-four years for the one employer.

41 The First Defendant and his wife have the following assets:

House property, 18 Dengate Crescent, Homebush (unencumbered) $300,000


AMP allocated annuity, $132,000

Motor vehicle, $5,000

Savings, $4,000

42 The First Defendant and his wife have a joint income of $511 a week, consisting of

AMP, $8,424 a year

Pension, $18,170 a year

TOTAL: $26,598 a year

43 The AMP allocated annuity was acquired by the First Plaintiff from the moneys which he received from the Deceased during her lifetime. The totality of the foregoing weekly income of $511 is expended by the First Defendant and his wife on normal household expenses, and upkeep and maintenance of their residence and their motorcar.

44 According to the First Defendant, the Deceased made inter vivos distributions as follows:

First Defendant $117,997


Second Defendant $147,997

Third Defendant $30,000

Plaintiff $90,000

45 In September 1995 the First Defendant and his wife lent to the Plaintiff the sum of $5,000, to enable him to pay a MasterCard debt and legal fees which he owed. The First Defendant and his wife raised that sum by way of a loan from the ANZ Bank. The Plaintiff did not repay that loan, and in consequence the First Defendant and his wife instituted legal proceedings and obtained judgment for that amount together with interest. Subsequently, in 1999, the Plaintiff, the First Defendant and the First Defendant’s wife entered into a Deed of Agreement. Consequent upon that Deed the amount owing by the Plaintiff to the First Defendant and his wife was deducted from the amount which the Plaintiff received by way of distribution from the Deceased upon the sale of the Oatley property.

46 The Second Defendant is presently aged sixty-four. She married her present husband, William Thomas Kirby, on 17 September 1960, when she was almost twenty-one years of age. At that stage, when she moved from the family home, the Plaintiff was aged not quite eleven years.

47 The Second Defendant and her husband have throughout the entirety of their married life and to the present time resided in a house property situate at and known as 47 Drake Avenue, Caringbah. They financed the construction of a residence upon that property by way of a mortgage loan of $5,000 from the Commonwealth Bank at the time of their marriage.

48 The Second Defendant and her husband have two children, both adults and no longer dependent upon them.

49 According to the Second Defendant, she and her husband have the following assets and liabilities:

Assets

House property, 47 Drake Avenue, Caringbah (unencumbered), $500,000
Holiday house, 30 Orient Avenue, Orient Point (near Nowra) (unencumbered), to which no present value is ascribed


AMP allocated annuity, $148,000

Mitsubishi Magna sedan motor car, $12,000

Pensioner security account, Commonwealth Bank, Caringbah, $18,650

50 Although it was the evidence of the Second Defendant that the contents of the Caringbah residence had a value of only $500 and that the contents of the Orion Point residence had, in effect, no value whatsoever, nevertheless, it emerged under cross-examination that the contents of the Caringbah residence are insured for $76,013, whilst the contents of the Orion Point residence are insured for $42,000. The failure of the Second Defendant to comply with a notice to produce concerning her income and financial circumstances leaves the Court in a position of uncertainty as to the accuracy of the foregoing details given by the Second Defendant and her husband concerning their income and their investments.

51 The Second Defendant and her husband receive a combined pension of $740.80 a fortnight. In addition they receive from the AMP allocated annuity a monthly income of $1087. Their total monthly income is $2,568.74, being a net weekly income of $642.

52 The Second Defendant received a distribution from the Deceased upon the sale of the Oatley property and the removal of the Deceased into Banks Lodge in January 2000 in the sum of $117,997. She received a further distribution of $30,000 when the Deceased was transferred to the Bexley Nursing Home and the bond which had been paid by the Deceased to Banks Lodge was refunded. Those amounts were invested by the Second Defendant with AMP as a Multi-fund Flexible Income Plan (Allocated Annuity). The Second Defendant and her husband receive an income of $1,087 a month from that fund.

53 According to the Second Defendant, she has been treated for depression by her family doctor.

54 The Second Defendant gave evidence concerning her observations of the relationship between the Plaintiff and his parents, especially the Deceased, over a period of more than forty years. That evidence was directed to establishing that the relationship between the Plaintiff and his parents, especially the Deceased, was not a good one, and that the Plaintiff was, in effect, disrespectful, abusive and lazy around the house.

55 Further, the Second Defendant gave evidence of her own relationship with the Plaintiff, which was not a good relationship either.

56 The Second Defendant also gave evidence concerning various statements attributed by her to the Deceased, all of which were critical of the conduct and attitude of the Plaintiff.

57 One of the incidents concerning which the Second Defendant gave evidence was that on an occasion in 1999 whilst the Deceased was still residing in the Oakley residence, the Second Defendant witnessed a refusal by the Deceased to give the Plaintiff money, and that the Plaintiff then picked up a carving knife which he began to wave in front of the Deceased and the Second Defendant, saying to the Second Defendant, “mind your own business”, to which the Second Defendant replied, “Mum is my business”. According to the Second Defendant, at her suggestion she and the Deceased went to the next door neighbour’s house, where they remained until the Plaintiff had departed the Oatley residence.

58 There was much evidence from the Second Defendant concerning what was asserted to be improper or selfish use by the Plaintiff of the Deceased’s telephone service to the Oatley residence, and his failure to contribute to the costs of his use of such service. The Second Defendant also gave evidence concerning an incident which she said she witnessed in 1992 when the Plaintiff picked up a wooden chair and smashed it, and then departed the house swearing and cursing at both the Deceased and the Second Defendant, both of whom, according to the Second Defendant, were put in fear by the incident. The Second Defendant also gave evidence of two occasions, in 1996 and 1998, when the Plaintiff, in order to gain access to the Oatley residence kicked down the toilet door. According to the Second Defendant these and various other incidents were the cause of the Deceased being on occasion removed by the Second Defendant from the Oatley residence to the Second Defendant’s residence.

59 Evidence was also given by the Second Defendant’s husband, William Thomas Kirby, concerning his contact with and observations of the Plaintiff. That evidence included an incident in 1975 (now almost thirty years ago), when the Second Defendant’s son was aged twelve, and there was a verbal confrontation between the Plaintiff on the one side and the Second Defendant’s son and, ultimately, also the Second Defendant and her husband on the other side.

60 The Third Defendant, Kim Louise Walker, is the daughter of the First Defendant and is the only granddaughter of the Deceased.

61 According to the Third Defendant, after her parents divorced when she was seven years of age, she had access visits with her father, the First Defendant, every second weekend from Friday night to Sunday night. During those visits she would often stay overnight with her grandparents. She stated that she developed a very close relationship with the Deceased, which continued into her later life. The Third Defendant married Adam Walker, in February 1998. She and her husband resided in rental accommodation until, after the death of her maternal grandmother, Marguerite Waters, in November 2001 her mother (the executor of the estate of that deceased grandparent) suggested that the Third Defendant and her husband should purchase the residence of that deceased grandparent. This they did for $200,000 in April 2002, having secured a home loan through the Commonwealth Bank. They also used the money which the Third Defendant received under the will of the Deceased, in an amount of $30,000, to assist with the purchase of the house property; in addition, the Third Defendant’s mother lent them the sum of $26,000.

62 The Third Defendant is the mother of twin sons born in September 2001.

63 The Third Defendant and her husband separated in 2002. The Third Defendant has the custody of their two children. She receives $104 a week in child support from her husband. The Third Defendant refinanced the mortgage over the house property, which is now in her sole name. That mortgage was in an amount of $185,000 at the time of her separation from her husband.

64 The Third Defendant works part-time as a waitress in two separate establishments. She also works as a house cleaner one day a week. In addition, she receives a supporting parent pension and a family allowance from Centrelink. The totality of the Third Defendant’s weekly income from all sources is $580.

65 The Third Defendant has the following assets:

House property, 7 Sydney Avenue, Umina, $285,000


Motor car, $5,000

Furniture, $2,000

66 The Third Defendant has the following liabilities:

Mortgage, $185,000


American Express Credit Card, $3,000

Indebtedness to her mother, $26,000

67 She makes the following monthly payments:

Mortgage, $1,110


Credit card, $80

Loan repayment to her mother, $400

TOTAL: $1,580

68 In consequence, according to her calculations, the Third Defendant has $740 a month upon which to feed and clothe her two sons and herself, and to pay household outgoings.

69 According to the Third Defendant she is just managing to make ends meet financially. It was her evidence that it was only in consequence of the financial benefit which she received from the Deceased that she has been able to purchase the house property in which she and her infant sons currently reside.

70 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

71 I have had the benefit of receiving chronologies and written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

72 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings.

73 It will be appreciated that there was no actual estate left by the Deceased, since the greater part of her assets had during her lifetime been distributed by her among the Plaintiff and the three Defendants, and that the relatively small funds left in her estate after her death were not sufficient to pay the totality of her debts which had been incurred during her lifetime.

74 Accordingly, therefore, any order for provision an entitlement to which the Plaintiff might establish can only be made out of the notional estate of the Deceased. It is for that reason that the three Defendants, to whom assets of the Deceased were distributed before her death, have been joined as parties to the present proceedings.

75 It should at the outset be recognised that the Plaintiff must establish his claim upon its own merits. His claim cannot be enhanced by the financial and material circumstances of the Defendants, each of whom was the recipient of the generosity of the Deceased during her lifetime and two of whom were the chosen objects of the testamentary beneficence of the Deceased, expressed in her last will, being that of 21 February 2000. The competing claims of those persons can, however, have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.

76 Further, it should be appreciated that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.

77 I have already referred to the very considerable quantity of evidence adduced on behalf of the Defendants and other witnesses concerning the nature of the relationship asserted by those witnesses to have obtained between the Plaintiff and his mother, and concerning what was asserted by those witnesses to be evidence that the Plaintiff had a bad relationship with his mother, was disrespectful towards her and, indeed, at times violent towards her.

78 In this regard it is appropriate to bear in mind the following salutary admonition of Windeyer J in the High Court of Australia concerning the statutory predecessor of the Family Provision Act (the Testator’s Family Maintenance and Guardianship of Infants Act 1916) in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometime overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

79 That has certainly been the situation in the instant case. It is quite apparent that the First and Second Defendants, who were considerably older than the Plaintiff, did not have much in common with him whilst he was growing up, and have disliked him throughout his adult life. The Plaintiff was the child of elderly parents, his mother being aged forty-two and his father aged fifty-five at the time of his birth. The Plaintiff has suffered psychiatric problems. He has had an unsatisfactory history of matrimonial and other personal relationships and an equally unsatisfactory employment history.

80 In his relationship with the Deceased there were obviously problems, despite the assertion on the part of the Plaintiff that their relationship was a loving and harmonious one. The written document signed by the Deceased on the date when she executed her first will, 7 March 1997, was obviously prepared by someone else. The First Defendant acknowledged his involvement in its preparation. It is unlikely that a lady aged more than ninety years would have drafted that document in the form in which it finally emerged and was signed by her.

81 The Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.

82 It was suggested by the Plaintiff that the written statement signed by his mother on 7 March 1997 had in fact been written by the First Defendant. The Plaintiff also said of his mother that he had known her to say one thing to one person and something different to another person. That latter suggestion was to an extent supported by the evidence of the Plaintiff’s most recent, but no longer, partner, Irene Bronwyn Galbraith. In her affidavit of 27 June 2003 Miss Galbraith attributed to the Second Defendant’s husband a statement that the Deceased and her husband would tell one family member something and another family member something else.

83 Both the First Defendant and the Second Defendant conceded under cross-examination that the Deceased was a person who was given to saying bad things about one member of the family to another family member, and that such statements made by the Deceased may not have been accurate. Such conduct on the part of the Deceased was consistent with what was revealed in the medical records of the Rockdale Nursing Home, where there were recorded a number of instances of what was described as “manipulative behaviour” on the part of the Deceased towards both members of the nursing staff at that establishment and towards members of the Deceased’s own family.

84 I have already referred to the fact that many of the incidents concerning which evidence was adduced on behalf of the Defendants were denied or disputed by the Plaintiff. It is appropriate, therefore, that I should express my views concerning the credit of the witnesses whose evidence was in dispute and the reliance to be placed upon that evidence.

85 I considered the Plaintiff an unreliable witness. It is possible that his memory may have been affected by his history of depression. However, there were incidents asserted (for example the alleged confrontation with Mr Aldritt, at Banks Lodge) where the Plaintiff’s total denial of the incident cannot be attributed to memory failure.

86 The Plaintiff’s credit was seriously affected by the circumstances of his dismissal from the State Rail Authority (which resulted from his fraudulently and falsely seeking and obtaining bereavement leave).

87 In general, where unsubstantiated evidence of the Plaintiff was disputed by evidence of witnesses on behalf of the Defendant, I have preferred not to rely upon that evidence of the Plaintiff. It must, however, be recognised that the First Defendant and the Second Defendant manifested a considerable degree of animus towards the Plaintiff. Further, in respect to the confrontation with Mr Alldritt I was not favourably impressed by his evidence either, although I am satisfied on balance that there was some form of confrontation between himself and the Plaintiff. I am not, however, satisfied as to the accuracy of Mr Aldritt’s evidence concerning the alleged consequences of the incident – the summoning of the Police and the employment of a security guard specifically to prevent the Plaintiff from attending at Banks Lodge. That evidence does not sit well with Mr Alldritt’s agreement that shortly after the alleged confrontation the Plaintiff had resumed visiting the Deceased at Banks Lodge, unhindered and unimpeded.

88 However, despite the denials of the Plaintiff, it is on balance more likely that incidents of the nature described by the Defendants and the witnesses called on their behalf, although denied by the Plaintiff, did in fact occur.

89 The evidence suggests, however, that the problems which were manifested by the Plaintiff in his relationship with and conduct towards his mother were, at least in part, a result of his psychiatric condition. That condition appears to have contributed also to the Plaintiff’s extremely disrupted employment history and to the various and unsatisfactory personal relationships in which he has been involved throughout his adult life.

90 The observations of the Defendants and other witnesses concerning the relationship between the Plaintiff and the Deceased support the conclusion that the relationship was not a particularly good one.

91 Nevertheless, the nature of the relationship between the Plaintiff and the Deceased is not determinative of the present claim. The bizarre conduct of the Plaintiff in inserting the death notice in the Sydney Morning Herald is difficult to explain, unless it was caused by the psychiatric problems from which the Plaintiff at an earlier stage had suffered, and had received hospital treatment. His attempted explanation, that for practical purposes, the Deceased was dead to him, is quite extraordinary and unbelievable, since the Plaintiff was residing with the Deceased at the very time when the death notice was published. When the Deceased became aware of that notice it can have caused her nothing but extreme distress, although the Plaintiff said that she subsequently forgave him.

92 However, neither the conduct of the Plaintiff in relation to the Deceased nor the fact that the Plaintiff did not present as a character who immediately attracted the sympathy of the Court of itself necessarily deprives the Plaintiff of an order for provision.

93 As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestly JJA agreed),

If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.

94 In the same case, Priestly JA said, (in words which are apposite to the instant case), at 582,

In giving his reasons for dismissing the appellant’s claim, Helsham CJ in Equity said, in my opinion rightly, that to deal properly with the case did not require an attempt by the Court to establish exactly what happened between the members of the appellant’s family during the course of the many events over the many years which the evidence dealt with. The fallibility of human memory, the length of time involved, the natural differences in recollection of the surviving participants all make the task impossible. The evidence indeed provides some striking examples of how differently witnesses see, hear, understand and then remember the same event. Differences of this kind in the present case show how various members of the family felt about one another from time to time but, when taken incident by incident, provide unreliable clues as to the objective rightness (if such is possible) or wrongness of their opinions of one another.

95 I intend no discourtesy to him when I describe the Plaintiff as one of life’s losers. He did receive financial and material benefits from his parents, and after the death of his father, from the Deceased, but he has now little to show for those benefits. Those benefits, however, appear to have been no greater than those received by his brother and sister. Indeed the distributions made by the Deceased from the proceeds of sale of the Oatley property when she entered the retirement residence were significantly less than those which the First and Second Defendants received.

96 At the age of fifty-four the Plaintiff has little in the way of assets. He has even been bankrupt. He has no qualifications. He is employed in a lowly paid position. He suffers significant health problems. He cannot afford a necessary health procedure or the acquisition of a hearing aid.

97 It is abundantly apparent that the Plaintiff has established relevant need, in that he has been left without adequate provision for his maintenance and advancement in life. He has thus satisfied the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 210.

98 Since the Deceased left no actual estate at the time of her death the Plaintiff invokes the provisions of Part 2, Division 2 of the Family Provision Act, relating to notional estate.

99 The conduct of the Deceased in making the inter vivos distributions in January 2000 and in January 2001 constituted prescribed transactions of the nature described in section 22 of the Act.

100 In the instant case I am, in the terms of section 23(a), satisfied that an order for provision ought to be made on the application of the Plaintiff.

101 Both the distributions to the Defendants took place within the period of three years before the death of the Deceased. I am satisfied that, in the terms of section 23(b)(i) the Deceased made the distribution of January 2000, “with the intention, wholly or in part, of denying or limiting, wholly or in part, provision for the maintenance, education or advancement in life of [the Plaintiff] out of the [Deceased’s] estate”. It will be appreciated that the consequence of the distribution made in January 2000 was to defeat the terms of the last will of the Deceased which would have given to the Plaintiff one third of the net estate of the Deceased, that is, would have given to him about $138,000. The distributions made to him by the Deceased in January 2000 and in January 2001 totalled $90,000, but he actually received only slightly more than $82,000 (because of the agreed deduction of amounts totalling $7,733.

102 Further, the distribution made in January 2001 in my conclusion came within the following description in section 23(b)(ii), of a prescribed transaction “which took effect within the period of 1 year before death, and was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of [the Plaintiff]… which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction”.

103 As I have already observed, the conduct of the Deceased in effecting the foregoing inter vivos dispositions, had the effect of defeating the testamentary provision made by her in favour of the Plaintiff in her will of 21 February 2000, by which testamentary provision she clearly recognised a “moral obligation to make adequate provision, by will… for the proper maintenance, education and advancement in life of” the Plaintiff.

104 Section 27(1) of the Act sets forth matters which must be considered by the Court before it can make an order designating property as notional estate of a deceased person. Those matters are:

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order, and

(c) any other matters which it considers relevant in the circumstances.

105 In all the circumstances of the instant case, I consider that it is appropriate that there should be made an order for provision in favour of the Plaintiff, in a relatively modest amount – certainly not sufficient to enable him to purchase a house property – which will allow him to pay off his debts, to meet necessary medical expenses, to enhance his present frugal lifestyle, and to provide a fund to meet unexpected contingencies. It is also possible that, with such a fund, he might be able to place a deposit upon a residence.

106 Subsection (2) of section 27 sets forth various matters to which the Court shall have regard in determining what property shall be designated as notional estate of a Deceased person.

107 In the circumstances of the instant case (especially on account of the present financial and material circumstances of the Third Defendant), I consider that the benefit received by the Third Defendant by way of distribution from the Deceased should not be disturbed. The burden of any order for provision in favour of the Plaintiff should be borne by the funds which were distributed to the First and Second Plaintiffs.

108 In my conclusion the Plaintiff should receive provision out of the notional estate of the Deceased in the sum of $60,000. The competing claims of the First Defendant and the Second Defendant are not such as would, in my conclusion, have the effect of reducing, let alone extinguishing, an order for provision in favour of the Plaintiff in the foregoing amount. That provision should be borne equally by the notional estate held by the First Defendant and the Second Defendant.

109 Although it is only assets of the First Defendant and the Second Defendant which are to be designated as notional estate of the Deceased, nevertheless, the Third Defendant participated in the proceedings, and strenuously opposed the claim of the Plaintiff. In those circumstances, therefore, I consider that the appropriate costs order is that the costs of the Plaintiff on the party and party basis be paid by all three of the Defendants.

110 Accordingly, I make the following orders:

(1). I order that the Plaintiff receive provision in the sum of $60,000 out of the notional estate of the late Margery Winifred Benham (“the Deceased”), and that such provision not bear interest if paid on or before 18 July 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898.

(2). I order that the following assets held respectively by the First Defendant and the Second Defendant be designated as notional estate of the Deceased:

(a) AMP allocated annuity

(b) AMP allocated annuity

(3). I order that the costs of the Plaintiff on the party and party basis be paid by the Defendants.

(4). The exhibits may be returned.

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Last Modified: 05/20/2004