Britton v Small

[2006] NSWSC 419

CITATION:	Britton v Small [2006] NSWSC 419
HEARING DATE(S):	4 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	05/04/2006
DECISION:	Plaintiff receives a legacy of $110,000 in lieu of the provision made for him under the will of the late Wilfred Franklin Adams.
CATCHWORDS:	SUCCESSION [309]- Family Provision Act- Whether plaintiff is an eligible person- Whether relationship with testator was landlord/boarder or carer/dependant- Whether plaintiff left with insufficient provision- Rebellious behaviour- Other beneficiaries include two of testator's foster daughters who have needs- Plaintiff suffers from past substance abuse- Protective Commissioner manages plaintiff's financial affairs- Will's provision found to be inadequate.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Jesse Britton by his Tutor The Protective Commissioner of New South Wales (P) Michael Owen Small (D)
FILE NUMBER(S):	SC 6418/04
COUNSEL:	L Ellison SC (P) E Cohen (D)
SOLICITORS:	E H Tebbutt & Sons (P) Neil J O'Connor & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 4 May 2006

6418/04 – BRITTON BY HIS TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v SMALL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 by a gentleman who resided with the testator, Wilfred Franklin Adams, for various periods between 1994 and 2003. The late Mr Adams died on 31 May 2003, having made his last will on 21 September 1999, probate of which was granted to the defendant, one of the executors named therein, the other having renounced his position on 13 August 2003.

2 Mr Adams has left an estate which appears to consist of his home at No 9 The Anchorage, Tweed Heads, valued at approximately $600,000 plus about $60,000 in cash. The will is unusual, partly because of the group of people that Mr Adams gathered around him. Those people included the plaintiff and two sisters, Alicia and Megan McKnight, and also a young man Cory Andrew Fisher.

3 I will come back to the relationships of those people with Mr Adams in due course, but for the moment I will focus on the will. Essentially the will gave two tranches of legacies to Alicia, Megan and Cory. The first tranche was $20,000 each when they attained 18, and the second when they attain 25. He also gave a legacy of $14,000 to the plaintiff which was not to be paid in full until the plaintiff attained 31. The plaintiff, having been born in March 1973, is now 33, so that that condition has been fulfilled. The legacies thus total $134,000. There is no fund to pay them, but as I understand it, it is now common ground that the house will need to be sold in order to pay the expenses and the will means that the legacies will be paid out of the proceeds.

4 The will gave the house to Alicia and Megan in equal shares and then provided that the residue would go three eighths each to Megan and Alicia, and two eighths to Cory. However, this is academic as there is no residue.

5 Accordingly, assuming that the will is construed in the way that is now common ground, and assuming that the house can be sold for $600,000, and assuming the costs of sale are no more than $10,000, there is a distributable estate of somewhere about $456,000, after the legacies and expenses have been paid. Adding back in the plaintiff's legacy of $14,000 produces a figure of $470,000 for the purposes of this case.

6 The plaintiff was living a dissolute life in the Pyrmont area when he was approached by Mr Adams and invited to live with Mr Adams at his Tweed Heads home. The plaintiff accepted that invitation, though the initial invitation was made in 1991 and he did not move to Tweed Heads until 1994. As I have said, the plaintiff lived in the Tweed Heads home with Mr Adams from then until 2003 but with very significant absences. The most significant absence is or for most of the period 2000 to 2002. However, the plaintiff suffers from diseases, including a bipolar disorder. He has a past history of substance abuse. The evidence, however, is that he appears to have overcome those problems and hopefully might be able to live a relatively normal life in future years.

7 In the year 2000 the Guardianship Tribunal sat at Tweed Heads and heard evidence from the plaintiff, Mr Adams, and a social worker, and as a result of that hearing, the Tribunal was satisfied that the plaintiff was not capable of managing his affairs and those affairs were committed to the Protective Commissioner. The case manager for the Northern Rivers Area Health Service gave evidence to the Tribunal that he had been the plaintiff's case manager for two years, that the plaintiff was on a disability support pension and that he was unable to adequately provide for his basic needs without the care and attention of his carer, Mr Wilfred Adams. He said that both Mr Adams and himself were concerned that the plaintiff was vulnerable to exploitation and that when the plaintiff went to the bank his "so called friends and drug users often ambush him". These views were accepted by the Tribunal.

8 In 2002 by telephone hook-up there was another hearing before the Guardianship Tribunal. Again Mr Adams gave evidence. He was described by the Tribunal as the foster father of the plaintiff and he gave evidence that he had collected the plaintiff when the plaintiff was discharged from hospital in 2002 and he was concerned that the plaintiff had a longstanding pattern of disappearing on the day he received his pension and returning with no money and that he might still be affected by drugs. He gave evidence that he was hopeful that the plaintiff might be employed doing garden maintenance work and that he had provided the plaintiff with a mobile phone and was responsible for the payment and that the plaintiff was paying him $24 a month. The Tribunal confirmed the financial management order.

9 Alicia McKnight gives evidence that her father was the foster child of Mr Adams and grew up with him. Her father died in 1987. Her mother went to gaol in 1991 and in 1992 Mr Adams took the McKnight sisters to live with him at Tweed Heads with the appropriate authority from the Department of Community Services and they have lived with him ever since, until he died. He treated them as his children and they had a very happy relationship. Mr Adams was like a father to them and cared for both the sisters and they felt like they were his family and there is no wonder why he made the provision for them that he did. Neither lady is in a particularly strong financial position. They would like to continue to live in the house at Tweed Heads but as I have said, everyone now realises that that is not possible. Cory is their half brother and he too was assisted by Mr Adams.

10 It is in this factual background that I must approach the question as to whether the plaintiff is entitled to any further provision out of Mr Adams' estate. Three questions are posed for the Court, which I will deal with in turn, namely (1) whether the plaintiff is an eligible person; (2) the first limb of Singer v Berghouse (1994) 181 CLR 201 (that is, whether the testator made adequate or proper provision for the plaintiff); and (3) whether, if question (2) is answered in favour of the plaintiff, what amount should have been provided for him.

11 Section 6(1) of the Family Provision Act 1982 defines eligible person in (a)(ii) as "a person with whom the deceased person was living in a domestic relationship at the time of the deceased person's death", and in (d) as:

“A person -
(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and
(ii) who ... was, at that particular time or at any other time, a member of a household of which the deceased person was a member."

12 Ms Cohen, who appeared for the executor, thought that when one looked at the evidence one must draw the conclusion that the plaintiff was no more than a boarder. She says that there are various factors in the evidence which demonstrate this, including:

(1) That the deceased took money for board from the plaintiff;
(2) That the Protective Commissioner was paying for the plaintiff to live with Mr Adams;
(3) That the plaintiff was an adult in 1994 (he was then 22) when he first came to live with the deceased;
(4) The plaintiff did not continuously live with Mr Adams, but was there on and off and in particular, he disappeared for a two year period.

13 Ms Cohen also points out that Mr Adams, when he was making his will in 1999, gave the house to the two McKnight sisters and although he recognised the plaintiff as a legatee, he did not provide him with a residence.

14 On the other hand, Mr Ellison SC, who appeared for the plaintiff, put that when one looked at the whole of the evidence, there was far more here than a mere boarder. The evidence showed that there was a caring relationship between Mr Adams and the plaintiff. Mr Adams had rescued the plaintiff from a dissolute life in Sydney, he had provided him with a residence, a residence to which even though he was away for periods, the plaintiff always returned to. The evidence given by Mr Adams before the Guardianship Tribunal showed that the relationship was far more than landlord and boarder. Mr Adams had a genuine concern for the plaintiff. Mr Adams was considered by the Tribunal to be his foster father. The plaintiff would participate in family life. He would have meals with the family, he would from time to time go shopping with Mr Adams and Mrs Fisher and would otherwise participate as a member of the family.

15 Mrs Fisher gave evidence that she went shopping with Mr Adams almost every Friday. I was initially given the impression that the plaintiff rarely accompanied them, but I think after hearing the cross-examination, the conclusion is that when the plaintiff was around, which might have been only once every six or seven weeks, he would go shopping with them.

16 In my view, on the balance of probabilities on the facts before the Court, the plaintiff was more than a boarder and has demonstrated that he falls within para (d) of the definition of "eligible person". Mr Ellison, as a backup, put that the plaintiff also fell within (a)(ii), but in my view it is unnecessary for me to look at (a)(ii).

17 I then have to turn my attention to s 9. Section 9(1) states that where an application is made by an eligible person who fits within paragraph (d) of the definition, the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case, there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

18 I suppose a lot of cases can be said to be unusual cases, but this is a particularly unusual case in that Mr Adams had no direct family of his own, as far as one can see, but kindly provided a residence for these needy young people. The way in which Mr Adams treated himself as the foster father and that he put up with conduct by the plaintiff which people of normal tolerance might not have put up with shows in my mind that we are getting very close to a family situation. The fact that Mr Adams recognised the plaintiff as entitled to a legacy under his will further reinforces this view. I am of the opinion that the plaintiff has overcome the hurdle in s 9. There are factors warranting the making of an application. The Family Provision Act is essentially to provide for members of the extended family of a testator and the plaintiff falls within that situation.

19 I accordingly proceed to the first stage of the two stage approach set out by the High Court in Singer v Berghouse. Ms Cohen submits that the whole scheme of the will was to continue to care for the two girls who had been in Mr Adams' custody since they were babies. They were the true family and Mr Adams wanted them to remain living in the home where they had grown up.

20 Now, there is a lot of truth in that, but the realities are that the house now has to be sold so that, as things have worked out, the McKnight sisters will have to find somewhere else to live. They will be assisted in that with the substantial provision that will flow through to them in any event. So then one has to look at the situation of an estate of approximately $456,000 net. There is no application by Cory Fisher. The question is then that if nothing is done the plaintiff will only receive $14,000 out of an estate of $470,000.

21 In view of the relationship between Mr Adams and the plaintiff, and in view of the plaintiff's special needs, being a person who is in the process of rehabilitation after a very poor start in life, would $14,000 be considered by the community and by the Court to be an adequate or proper provision out of an estate of $470,000? In my view the answer to that question is "no".

22 As I have said, neither of the McKnight sisters are wealthy. Alicia gave evidence in the witness box which seemed to indicate that although she has not been able to work recently, once the stress of these proceedings are over she will be able to work, and both of them are fit enough to be able to earn an income, even though they are unskilled and they are still very young women. On the other hand, the plaintiff is a person whose ability to earn income is very severely restricted, though at present he has part-time work on a tomato farm.

23 Accordingly, I pass to the third question, and that is what provision should have been made for the plaintiff. Mr Ellison suggests that a $125,000 legacy, including what has already been given by the will of $14,000, would be proper. It is really hard to assess what would be proper because there is not enough in the estate, in my view, considering the duties owed to the McKnight sisters, to provide the plaintiff with anything like the amount of money that he is going to need to acquire accommodation, but on the other hand he has very little by way of assets and income and he probably does need some sort of nest egg to move him along in life. His affairs are still being controlled by the Protective Commissioner so that there is no danger of him wasting any legacy that he is given.

24 It is an awkward situation but I think that in all the circumstances a legacy of $110,000 would be appropriate. That is in lieu of the $14,000 he has been left under the will. It is a little hard to work out exactly what will happen because one does not know the costs of sale of the property, and property in the Tweed Heads area is usually on a bit of a roller coaster, so one does not know exactly what price it is going to get. It would seem that there will be about $180,000 for each of the McKnight sisters and $110,000 for the plaintiff.

25 So the orders are that in lieu of the provision made for him under the will of the late Wilfred Franklin Adams, the plaintiff receive a legacy of $110,000. That legacy is not to carry interest until 30 June 2006 and thereafter at the rate prescribed for legacies under the Wills, Probate and Administration Act 1898. I order that the costs of the plaintiff and the costs of the defendant, the latter on the indemnity basis, be paid out of the estate. The exhibits may be returned.

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