JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BOSELEY -v- STOWE [2012] WASC 329 CORAM : MASTER SANDERSON HEARD : 29 AUGUST 2012 DELIVERED : 13 SEPTEMBER 2012 FILE NO/S : CIV 1369 of 2011 BETWEEN : JOYCE PATRICIA BOSELEY Plaintiff
AND
GREGORY FRANCIS STOWE AS EXECUTOR OF THE WILL OF LINDLEY ANDREW BOSELEY
First Defendant
THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST
Second Defendant
AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIAN DIVISION)
Third Defendant
Catchwords:
Wills - Application by mother for provision to be made out of deceased son's estate - Turns on own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA)
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Result:
Entire estate awarded to the plaintiff
Category: B
Representation:
Counsel:
Plaintiff : Ms S E Bruce
First Defendant : Mr S K Shepherd
Second Defendant : Mr S K Shepherd
Third Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : Kershaw Legal
Second Defendant : Kershaw Legal
Third Defendant : No appearance
Case(s) referred to in judgment(s):Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
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1 MASTER SANDERSON: This is the plaintiff's application brought under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). The deceased died on either 25 March 2010 or 26 March 2010. He left a will, probate of which was granted to the first defendant on 13 September 2010. At the date of his death the deceased was a bachelor. He had never married. He had no dependents. The plaintiff is his mother. She is entitled to bring a claim under the Act pursuant to s 7(1)(e) of the Act.
2 The deceased left a modest estate. Essentially it comprised a house in Narrogin and certain superannuation entitlements. The agreed value of the estate as at the date of hearing was $201,000. The evidence is to the effect that it was around the same value as at the date of the death of the deceased. By his will the deceased left his estate to be divided equally between the second and third defendants. There were no other beneficiaries.
3 In determining an application under the Act the court undertakes a two stage process. This was outlined by Mason CJ, Deane and McHugh JJ in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. Their Honours said:
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant (208).
4 At the hearing the second defendant was represented by counsel. The third defendant filed a notice indicating they would abide by the decision of the court. They did not appear and made no submissions. Counsel for the second defendant submitted the plaintiff failed to satisfy the first stage test - sometimes called the jurisdiction test. Counsel further submitted if the plaintiff did satisfy the jurisdiction test then she had not demonstrated a need which would justify a provision being made from the deceased's estate. 5 Many cases have expanded on the elements relevant to determine the first stage test. A non exhaustive list of the factors which may be relevant is as follows:
(Page 4) (a) the applicant's financial position; (b) the size and nature of the deceased's estate;
(c) the totality of the relationship between the applicant and the deceased;
(d) the relationship between the deceased and other persons who have a legitimate claim on his bounty;
(e) contribution to the property and welfare of the deceased by the applicant;
(f) the character and conduct of the applicant in relation to the deceased;
(g) the need and moral claim of the applicant and the need and moral claim of persons who have a legitimate claim on the bounty of the testator;
(h) the age, capacities, means and competing claims of all the potential beneficiaries; and
(i) the totality of the applicant's circumstances including present and reasonably anticipated future needs.
6 Dealing with these matters in turn, the applicant is of modest financial means. She lives in Adelaide and owns her own unit. She puts the value of that unit at $265,000. She has modest cash reserves of around $9,500. She puts the value of her household effects at $20,000. That means her total net assets are in the region of $300,000. 7 Her only income is an aged pension. That amounts to $350 per week. Her expenses total $288 per week. It is clear she lives frugally and although her expenses are less than her income she has limited flexibility. She was 72 at the date of the death of the deceased. Clearly she has no prospect of supplementing her income in any way in the future.
8 As I have mentioned, the agreed value of the estate of the deceased both at the date of his death and at the date of the hearing was $201,000. As yet the property in Narrogin has not been realised, so the actual value of the estate may move up or down to some extent. The estate will also be liable for legal fees occasioned by these proceedings. Both parties agreed the costs of these proceedings should be borne by the estate. I see no reason why that should not be so. That does mean the value of the estate
(Page 5) will, when it comes to distribution, be substantially reduced. I will have more to say on this issue later in these reasons.
9 It appears the plaintiff and the deceased did not have a particularly close relationship. The deceased was one of the plaintiff's six children. The plaintiff and her husband separated in 1979. This was after the plaintiff had endured domestic violence at the hands of her husband. At the date of separation the deceased was aged 11. He continued to reside with the plaintiff until he was 17. He then went and lived with his father. 10 The plaintiff says after the deceased finished school and returned to farm with his father, she did not see much of him. It appears this was because if the plaintiff had contact with the deceased it caused friction with her estranged husband. The deceased did speak to the plaintiff from time to time and he visited her at least twice when she was living in Adelaide. In August of 2006 the deceased had surgery to remove a cancerous kidney. The plaintiff says for the following three months she 'provided him with emotional support and assistance'. She also travelled to Perth to spend some time with him.
11 The plaintiff says she was 'always very close to Lindley': see par 19 of the plaintiff's affidavit sworn 8 March 2011. In my view, the evidence does not support that conclusion. There is no evidence there was any animosity between mother and son and they appear always to have maintained cordial relations. But, there was limited contact between the two - such contact as there was mainly being limited to telephone calls. In my view, the proper conclusion is that the plaintiff and the deceased had a cordial if not, a particularly intimate relationship.
12 No other person beyond the plaintiff has a legitimate claim on the bounty of the deceased.
13 I am satisfied that the plaintiff did make a significant if indirect contribution to the property and the welfare of the deceased. The plaintiff married her husband, the deceased's father, in April of 1959. She worked with her husband in a shearing business until 1961 when they acquired a farming property. They continued to work that property until the plaintiff moved out in 1979. The plaintiff and her husband were divorced in 1986.
14 The plaintiff says when her marriage was dissolved there was no property settlement. At no time did her husband pay any maintenance for the children. The plaintiff's husband continued to farm the property with the assistance of the deceased and the deceased's brother Bernard.
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15 In support of the application, the plaintiff relies on an affidavit of Bernard David Boseley sworn 20 October 2011. Mr Boseley confirms the history of violence in the relationship between the plaintiff and her husband. He also says:
In or around 1985, before our parents divorce was finalised, Lindley and I asked our Mother not to make a claim against our Father for any of the farming land because we wanted to continue farming [10].
16 The plaintiff appears to confirm that version of events: see par 11(b) of her affidavit of 8 March 2011. In any event, whatever the reason for the plaintiff not pursuing a property settlement, the farm was transferred to the plaintiff's former husband and the plaintiff received no benefit. 17 Mr Bernard Boseley says in 1995, his father wanted to sell the farm and he offered half each to Bernard and Lindley. Neither could afford to buy the land. Bernard had the portion of the farm he was to purchase valued at $120,000. He agreed with his father that he would pay $60,000 for that land. The deceased had his portion of the land valued at $144,000. It would appear the deceased paid his father $81,000 for that share.
18 When it came time to transfer the property from their father to Bernard and the deceased, the father insisted on an acknowledgement of debt being signed, the amount of the debt being the difference between what was actually paid and the valuations. Bernard was able to negotiate with his father so the acknowledgement of the debt was only for half of the difference between what was paid and the actual value. Bernard is not sure whether the deceased came to the same arrangement with his father. Either way, when the father died the terms of his will released both brothers from the outstanding debt. It would appear then, the deceased acquired a farming property valued at $144,000 for $81,000.
19 The evidence does not disclose with any precision what became of the farm owned by the deceased. Clearly it was sold and it is reasonable to assume some of the proceeds of sale went towards the purchase of the deceased's property in Narrogin. There is no evidence the deceased had assets from any other source. He appears to have spent his whole life on the land and apart from the practical farming skills he doubtless acquired, he had no other qualifications.
20 In my view, the forbearance of the plaintiff in not seeking a property settlement from her husband provided a substantial benefit to the deceased. It is hard to imagine if the plaintiff had pursued a property
(Page 7) settlement she would not have been entitled to a portion of the farm. The evidence suggests the farm would have to have been sold. That in turn would have ensured the deceased received little or no benefit from the farm. So the plaintiff made a substantial contribution to the deceased's estate.
21 I have already touched on the relationship between the plaintiff and the deceased and I need say nothing further on this issue. The second and third defendants as they are named as beneficiaries to the estate, have a legitimate interest and are entitled to argue for the maintenance of the status quo under the will. Both are well known charities that do almost unlimited good work. But, there is no evidence of any particularly close relationship between the deceased and either of these two charities. For instance, there is no evidence either rendered particular assistance to the deceased during his lifetime. Whilst there is no direct evidence as to the funding of either charity, it is obvious both are dependent in part upon donations and bequests to allow them to function efficiently. To that end they have a legitimate claim on the bounty of the testator. 22 In all the circumstances, I am satisfied the plaintiff has satisfied the jurisdictional question and the will of the deceased did not make adequate provision for her proper maintenance, support and advancement in life. What is decisive in this case is the plaintiff's contribution to the deceased's estate. She was remarkably selfless. It is clear that this greatly benefited the deceased. In the absence of other competing claims, it was appropriate in my view, the deceased should have provided for her in his will. This is one of those cases where the deceased had a moral obligation to provide for his aging mother in his will.
23 It is then a question of determining what the proper distribution of the estate is. In her affidavit of 8 May 2012 the plaintiff sets out her present needs. She says she has been resident in her unit for 16 years. It is in need of painting inside and out and the carpets require replacing. She wishes to have her garden reticulated and to undertake general maintenance. She wishes to install front and side fences for security. She wishes to add to her carport to make it safer and more secure.
24 Her furniture is old and she wishes to replace both her lounge suite and her bedroom suite. Together, that is likely to cost around $5,000. She has a 21-year-old motor vehicle which she wishes to replace. She anticipates a replacement vehicle would cost around $25,000. The plaintiff's mobility is declining and she would like to acquire a Gopher and an electric bed. Taken together these would cost around $6,000.
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25 She also wishes to employ a gardener to assist with routine gardening tasks. She estimates that would cost around $60 per month. She also seeks assistance with household cleaning. That too would cost around $60 a month. Assistance in both of these areas seems reasonable.
26 The plaintiff appears to be in reasonable health, although she does have some chronic problems which are unlikely to resolve themselves into the future. Her mobility is diminishing. In her affidavit evidence she says nothing about whether she will remain in her present accommodation. She does not appear to anticipate a move in the near future.
27 As I mentioned earlier in these reasons, the costs of this application and the administration of the estate will significantly diminish the amount available for distribution. It is therefore difficult to award a lump sum. Moreover, the estate is small and any additional administrative burdens occasioned by a decision in this application should be avoided. In other words, the best option is in my view, the simplest option.
28 That being the case, I am satisfied the entire estate of the deceased ought to be awarded to the plaintiff. In the course of her submissions counsel for the plaintiff suggested a distribution of one half of the estate would be appropriate. It would seem, after payment of legal fees and expenses, not much more than that will be available for distribution.
29 That being so, it seems to me the best course is simply to award the whole of the estate to the plaintiff and let her deal with it as she will.
30 The plaintiff should bring in a minute of orders which reflect these reasons. As I have indicated, the costs of all parties should be paid out of the estate of the deceased.