Brooke v Public Trustee
[2001] NSWSC 715
•22 August 2001
Reported Decision:
[2001] NSWSC 715
[2001] ACL Rep 430 Nsw 14
New South Wales
Supreme Court
CITATION: Brooke v Public Trustee [2001] NSWSC 715 FILE NUMBER(S): SC 3146/99 HEARING DATE(S): 30, 31 July 2001 JUDGMENT DATE:
22 August 2001PARTIES :
Laurel Anne Brooke (Plaintiff)
Public Trustee (Defendant)JUDGMENT OF: Master McLaughlin
COUNSEL : P. Hallen SC (Plaintiff)
J.R. Wilson (Defendant)SOLICITORS: L. Rundle & Co (Plaintiff)
P.J. Whitehead (Defendant)CATCHWORDS: Trusts - Resulting trust - Constructive trust - Acquisition of company title home unit by deceased father of Plainitff - Purchase was in name of deceased - Deposit was paid by deceased, but stated to be a gift to the Plaintiff - Mortgage payments, outgoings, improvements, repairs were paid by Plaintiff - Statements made by deceased at time of purchase and subsequently - Family provision - Claim by adult daughter - Financial and material circumstances - Need for accommodation - Competing claims of grandchildren named in will as conditional beneficiaries as to residue. LEGISLATION CITED: Family Provision Act 1982
Wills, Probate and Administration Act 1898CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Jones v Lock (1865) 1 Ch. App. 25
Muschinski v Dodds (1985) 160 CLR 583DECISION: See paragraph 135
SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Wednesday, 22 August 2001
JUDGMENT
1 MASTER: These proceedings were instituted by summons filed on 12 July 1999. By that summons the Plaintiff Laurel Anne Marie Brooke claimed an order for provision for her maintenance, education and advancement in life pursuant to section 7 of the Family Provision Act 1982 out of the estate of her late father Sydney Robert White (to whom I shall refer as “the Deceased”). (It should be observed that on 6 August 1999 the Public Trustee filed a notice of appearance which, somewhat curiously, stated that he “appears and submits to the orders of the Court, save as to costs”. In fact, the Defendant consistently, actively, and steadfastly resisted the claims of the Plaintiff.)
2 Subsequently, on 12 June 2001 the Plaintiff filed an amended summons. In addition to replicating the relief sought in the summons, the Plaintiff by prayer 1 of the amended summons also claimed relief in the following terms,
- Declaration that the Defendant holds 2,400 shares in The Rand Flats Pty Ltd, entitling the shareholder to occupation of Flat 7/29 Marine Parade, St. Kilda on trust for the Plaintiff absolutely.
3 In light of the claim for the foregoing relief by way of a declaration of trust, an order was made on 30 July 2001 by Justice Palmer, as the Duty Judge in the Equity Division, committing the hearing of the entirety of the proceedings to a Master.
4 The Deceased died on 26 June 1998, aged 72. He left a will dated 7 April 1997, probate whereof was on 28 October 1998 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).
5 By that will the Deceased purported to give his interest in the property situate at and known as 8/2 Woodford Road, North Haven to his de facto wife Constance Joan Hall, to whom he also gave his household goods and personal effects (each of those phrases being defined in the will). He gave a legacy of $2,000 to each of seven persons (each of whom was described as “my friend”, although two of those persons were, in fact, grandchildren of the Deceased). The residue of his estate, after payment of estate liabilities, was given to three named grandchildren of the Deceased, upon the condition that those persons (a) survive the Deceased and (b) reach the age of twenty-five years. Although all three of those persons survived the Deceased, none has yet reached the age of twenty-five years, and one, the Deceased’s grandson Joseph Campbell, is still an infant, being aged only nine years.
6 The assets of the estate as disclosed in the inventory of property consist essentially of moneys in banks or financial institutions ($98,109), shares in companies ($29,786), other monetary entitlements ($3,991), together with shares in The Rand Flats Pty Limited (which are the subject of the relief sought in prayer 1 of the amended summons). Those shares, 2,400 in number, entitle the owner thereof to exclusive occupancy of Unit 7, 29 Marine Parade, St. Kilda in the State of Victoria. (I shall refer to that home unit as “the St. Kilda unit”.) At the date of the death of the Deceased it was estimated that the value of that unit (and, in consequence, of those shares) was $260,000.
7 Since the death of the Deceased six of the seven pecuniary legacies have been distributed (the remaining legatee is still an infant). The Defendant presently holds funds totalling $99,006 and shares having a value of $29,786, as well as the shares in respect to the St. Kilda unit. The Defendant is entitled to commission in respect to those assets in an amount of $8,820. In consequence, the present distributable estate of the Deceased consists of the St. Kilda unit, together with other assets having a value of $119,996.
8 It will be appreciated that in approaching the value of the estate available for distribution the costs of the present proceedings must be taken into account. In the event that she be successful in her claim (either for a declaration of trust, or for an order under the Family Provision Act, or both), the Plaintiff will be entitled to her costs out of the estate. Irrespective of the outcome of the proceedings, the Defendant will be entitled to its costs out of the estate, since the Defendant has a duty to uphold the terms of the will and to resist the claims of the Plaintiff. It is estimated that the costs of the plaintiff of the present proceedings will total somewhat in excess of $48,500, and that the costs of the Defendant will total in excess of $22,000.
9 The present value of the St. Kilda unit is $350,000.
10 I have referred to the provision of the will by which the Deceased purported to give to his de facto spouse, Mrs Hall, his interest in what had been their matrimonial home at North Haven. Since that property was held by the Deceased and Mrs Hall as joint tenants, the Deceased’s interest therein passes to Mrs Hall by survivorship, and not by virtue of the provisions of his will. It is for that reason that I spoke of the Deceased as having purported to give to Mrs Hall his interest in that house property. The provision of his will by which he purported to do so has no effect.
11 It will be observed that the chief asset in the estate of the Deceased consists of the home unit which is located at St. Kilda in the State of Victoria, and the shares representing the ownership of that unit. Neither party raised any problem about this Court dealing with that asset which is located in the State of Victoria, outside the geographical jurisdiction of the Supreme Court of New South Wales.
12 Not only was the Deceased resident (and also, apparently, domiciled) in New South Wales at the time of his death, but all his assets, other than the shares relating to the St. Kilda unit, were located in New South Wales. That being so, the Supreme Court of New South Wales had jurisdiction to grant probate of the will of the Deceased, pursuant to section 40 of the Wills, Probate and Administration Act 1898.
13 The power of the Court to make an order for provision pursuant to the Family Provision Act in respect to property located outside New South Wales is implicit in section 14 of the Act (subsection 1(a) whereof provides that such an order for provision “shall...take effect as if the provision had been made - (a) where the deceased person died leaving a will - in a codicil to the will”). Such power is explicit in section 11 of the Act (subsection (1)(b) whereof provides that an order for provision out of the estate or notional estate of a deceased person may “be in respect of property which is situated in or outside New South Wales at the time of, or at any time after, the making of the order, whether or not the deceased person was, at the time of death, domiciled in New South Wales”). Further, it has not been suggested by any party that the Defendant, not only in his capacity as executor, but also in his capacity as trustee of the will of the Deceased (clause 7.00), lacks the power to deal with the totality of the assets of the estate of the Deceased, or that this Court does not have jurisdiction to grant the relief by way of declaration of trust which is sought in prayer 1 of the amended summons. In this latter regard it will appreciated that the Court in granting such relief acts in personam, and that the Defendant is within the jurisdiction of the Court.
14 In approaching the claim of the Plaintiff, both in respect to the declaration of trust and in respect to the application for an order for provision for her maintenance, education and advancement in life under the Family Provision Act, it is appropriate that I should set forth relevant facts concerning the Deceased, his various spouses (both ceremonial and de facto) and his various children, and then set forth details of the circumstances in which the St. Kilda unit was acquired.
15 The Deceased (who had been born in 1926) married his first wife, Marjorie on 23 October 1946. Of that marriage were born (on 8 November 1947) twin daughters, being Laurel (the Plaintiff) and Lynsay. The daughter Lynsay was killed in a road accident in early 1952, when she was aged only four. Subsequently another daughter, Esther, was born on 16 April 1954.
16 The Deceased had served in the Royal Australian Navy during World War II. He subsequently matriculated and attended both the University of Sydney and the University of Melbourne (graduating, at least in Commerce; it is somewhat unclear from the evidence whether he also graduated in Economics). After completing his university course (or courses) the Deceased entered the Royal Australian Air Force, apparently in the early 1950s. He was very successful in his Air Force career, achieving the rank of Air Vice-Marshal, and holding as his final appointment the position of Chief of Supply for Defence from 1975 to 1980.
17 The Deceased and Marjorie separated in 1955, and they were divorced on 21 August 1961. Both at the time of their separation and at the time of their divorce Marjorie and her two surviving daughters were residing in a residential property at Black Rock, a suburb of Melbourne. That property had originally been purchased as a seaside retreat by Marjorie’s father, but had subsequently been transferred by him into the name of the Deceased, who, with the assistance of finance from a building society, had caused a dwelling house to be erected upon that property.
18 At the time of the divorce in 1961 Marjorie received custody of both her children, and it was ordered that the Deceased should pay maintenance of 3 pounds a week for Marjorie and 4 pounds a week for each child. The house at Black Rock was ordered to be transferred to Marjorie, subject to the existing mortgage thereon.
19 After his separation from Marjorie, but before their divorce, the Deceased in 1957 fathered another child, Margaret (known as Maggie), the mother of whom was Constance Joan (née Terry) (who thirty years later, as Mrs Hall, became the de facto spouse of the Deceased). However, it would appear that the Deceased and Constance did not at that time enter into a de facto relationship.
20 Indeed, in December 1961, about four months after his divorce from Marjorie, the Deceased married his second wife, Loma (with whom it would appear that he had for some time been in a relationship).
21 For several years the Deceased was living and working in the United States of America (in the position, as I understand it, of Air Attaché at the Australian Embassy in Washington).
22 In the meantime the Plaintiff had attended the Black Rock primary school, and later attended a school conducted by the Sisters of the Good Shepherd. She completed her schooling when in Year 9 (when I gather she would have been aged fifteen). In 1964 at the age of sixteen the Plaintiff married her first husband. Of that marriage were born two children, Brian John Brooke (born in 1964) and Carolyn Jane Brooke (born in 1966). Laurel and her husband separated shortly after the birth of their younger child. (I would here interpolate that Brian and Carolyn are two of the legatees named in clause 3.00 of the will, each being described in that clause as “my friend”.) The Plaintiff essentially brought up her two children as a single mother, although their father paid occasional maintenance. In order to support herself and her children the Plaintiff worked in such occupations as housekeeper, bar attendant and telephonist.
23 After the Deceased returned from America and while he was living and working in Canberra, the Plaintiff, who had continued to reside in Melbourne, maintained contact with him, and from time to time visited him in Canberra. The Plaintiff formed a close friendship with the Deceased’s then wife Loma.
24 The Deceased retired from the Royal Australian Air Force in 1980.
25 In that same year (it is somewhat unclear from the evidence whether it was before or after the retirement of the Deceased) the Plaintiff found that she was unable to pay the increased rent of the house in Melbourne in which she had been residing as a tenant for the preceding eight years. She had a conversation with her father in which she sought financial assistance in respect to moving into some other rented property. According to the evidence of the Plaintiff the Deceased said that he would talk the matter over with Loma and that he would then come and visit the Plaintiff. This he did, staying with the Plaintiff at her Melbourne residence for about a week.
26 The Plaintiff gave evidence concerning a conversation to the effect that the Deceased during that visit suggested that the Plaintiff should buy a house or a unit, and that, when the Plaintiff responded that she would not be able to pay even the deposit for such a purchase, the Deceased said that he would give to her the deposit. The Plaintiff and the Deceased after that conversation then visited many real estate agents together, and inspected a considerable number of flats and houses. During the course of those inspections the Deceased, according to the Plaintiff, advised her concerning problems relating to the structure of the various premises they were inspecting, such as rising damp, wiring, roofing, guttering, cracks and the like.
27 Eventually they located the home unit situate at and known as 7/29 Marine Parade, St. Kilda. That is the home unit which was ultimately purchased, and which is essentially the subject of the present proceedings. The Plaintiff has lived in that home unit (firstly with her children, and subsequently on her own) since early 1981, and remains in residence therein to the present time.
28 I shall, later in this judgment, refer in greater detail to the circumstances surrounding the purchase of the St. Kilda unit, and to the evidence concerning the various conversations said to have taken place, involving both or either of the Deceased and the Plaintiff, concerning that purchase.
29 For the present, however, suffice it to say that the purchase was effected in the name of the Deceased for a purchase price of $37,000. The deposit, together with associated expenses for legal costs and stamp duty, totalled about $15,000. That deposit was paid by the Deceased from his bank account with the Bank of New South Wales (now Westpac Banking Corporation). and the balance of the purchase price was borrowed by the Deceased from that bank, secured by mortgage.
30 The Plaintiff since the acquisition of the unit in February 1981 has made all mortgage repayments ($300 a month), and has paid all outgoings in respect to the property, as well as the cost of capital improvements, repairs and maintenance. The mortgage was discharged in 1993. The Plaintiff has also actively participated in the corporate structure of The Rand Flats Pty Limited, having been a director of that company, and having attended all annual general meetings of that company. For the foregoing purposes the Plaintiff regularly received from and exercised the proxy of the Deceased as a shareholder in that company.
31 I have already referred to the birth of a daughter Margaret (known as Maggie) to the Deceased in 1957. It was soon after Maggie’s birth (on 6 November 1957) that the Deceased was transferred to America. Shortly after that transfer the Deceased appears to have entered into a relationship with Loma, who subsequently became his second wife.
32 From shortly after her birth until she was aged twenty-two, apart from two isolated instances (one when she was about three years old), Maggie had no contact with the Deceased. Maggie did not meet the Plaintiff until 1980. According to Maggie, she and the Plaintiff thereafter had a “close sisterly relationship”, which continued until shortly after the death of the Deceased. On 22 July 1981 there was born to Maggie a son, James Rongen-Hall, who is one of the three persons conditionally entitled to the remainder of the estate of the Deceased. He is now twenty years of age.
33 The Deceased’s second wife, Mrs Loma White, died in September 1987. Shortly thereafter the Deceased entered into cohabitation with Mrs Constance Joan Hall (who, it will be recalled, was the mother of Maggie), and they lived in a de facto relationship from then until the death of the Deceased almost eleven years later. In 1992 the Deceased and Mrs Hall removed their residence from Sydney to North Haven.
34 At about the time when the Deceased entered into his de facto relationship with Mrs Hall, he made a will dated 2 November 1987. By that will he appointed the Public Trustee for the Australian Capital Territory as executor, and, inter alia, gave his “right, title and interest” in the St. Kilda property to the Plaintiff. (The Deceased by that will gave the remainder of his estate equally between the Plaintiff, his daughter Maggie and his granddaughter Kate, the daughter of his deceased daughter Esther.)
35 I have already observed that the Deceased, by his first wife, Mrs Marjorie White, was the father of three daughters (one of whom died at the age of four). His younger surviving daughter, Esther (Mrs Gronert), died suddenly on 16 October 1989, aged thirty-five. She left a daughter, Kate (then aged twelve), who is one of the conditional residuary beneficiaries named in the will of the Deceased.
36 Maggie married her present husband, Fergus Paterson Campbell, in 1991 (they had been living together for the preceding five years). Of that marriage were born two children, Joseph (born on 1 December 1991), who is aged nine, and Eleanor Joan (born 15 February 1998), who is aged three. Maggie’s son James Rongen-Hall (now aged twenty) has resided with Maggie and her husband on a full-time basis since 1994. It will be appreciated that Joseph, an infant, is the third of the three beneficiaries conditionally entitled to the residue of the estate of the Deceased.
37 The Plaintiff, as a child 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, she has the standing to bring her present claim for an order for provision under that Act.
38 The other eligible persons in relation to the Deceased are Mrs Hall, as his de facto widow (who is an eligible person within paragraph (a) of that definition); Mrs Marjorie White, the former spouse of the Deceased (who is an eligible person within paragraph (c) of that definition); Maggie Campbell, daughter of the Deceased (who is an eligible person within paragraph (b) of that definition); and Linda Anne White and Curtis White, step-children of the Deceased (being the two children of the late Mrs Loma White), who were members of the same household as the Deceased and their mother and who were partly dependent upon the Deceased (who are eligible persons within paragraph (d) of that definition).
39 It will be appreciated that none of the three conditional beneficiaries entitled to the residue of the estate is an eligible person. Although each of those beneficiaries is a grandchild of the Deceased, it would appear that none of them was wholly or partly dependent upon the Deceased.
40 Notice of Claim has been given to each of the foregoing eligible persons and to each of the three conditional beneficiaries entitled to residue, as well as to each of the specific legatees named in the will of the Deceased. No eligible person apart from the Plaintiff has made any claim against the estate of the Deceased.
41 I have had the benefit of receiving from Counsel for the respective parties a written outline of the submissions of that Counsel. Those written submissions will be retained in the Court file.
42 It will be appreciated that if the Plaintiff is successful in establishing a trust of the nature asserted in prayer 1 of the summons that fact will have a considerable bearing upon the claim by the Plaintiff for an order for provision for her maintenance out of the estate of the Deceased. For, in those circumstances, the Plaintiff will have a secure residence with a value of $350,000.
43 If, however, the Plaintiff is not successful in her claim for such a declaration of trust, she will, in consequence, have no residence, and her assertion of need, upon which her claim under the Family Provision Act is grounded, will include a need for accomodation.
44 Accordingly, the practical consequences of a decision upon the Plaintiff’s first claim for relief will have a significant bearing upon the outcome of the Plaintiff’s claim for an order for provision under the Family Provision Act. It is appropriate, therefore, in my view that I should firstly proceed to a consideration of the Plaintiff’s claim for a declaration of trust in respect to the St. Kilda unit.
45 I have already indicated that I would, in due course, set forth in greater detail the evidence concerning the circumstances surrounding the acquisition of the St. Kilda unit by the Deceased. It is appropriate that I should do so at this point in my reasons for judgment.
46 In the case for the Plaintiff, evidence relating to those circumstances was given by the Plaintiff herself; her mother Marjorie White; Imelda May Demetrios, the vendor of the St. Kilda unit; Anton van Doornik, a director of The Rand Flats Pty Limited; Steven George Bayliss; Kevin Joseph Mulhall; Stephen Gerard Jones; Linda Anne White, stepdaughter of the Deceased (being the daughter of the late Mrs Loma White). Each of those witnesses gave evidence on affidavit, and each (except Mr Mulhall) was cross-examined. On behalf of the Defendant, evidence relevant to the acquisition of the home unit was also given by Constance Joan Hall, the de facto widow of the Deceased; and Maggie Campbell, daughter of the Deceased and Mrs Hall. Each of those witnesses gave evidence on affidavit, and each was cross-examined. In addition, affidavit evidence was given by Jacqueline Giselle Turner, manager of the Port Macquarie Office of the Defendant, who, however, was not cross-examined.
47 I have already referred to some of the evidence of the Plaintiff concerning the original discussion between herself and the Deceased relating to the possibility that the Deceased would assist her in the acquisition of a residence.
48 The evidence of the Plaintiff in her affidavit of 30 November 1999 was that, following the original request by her for financial assistance for moving costs and rental bond for another rental property and the response which I have already recorded earlier in this judgment, there was a conversation between herself and the Deceased in Melbourne, when he stayed for about a week at her home, to the following effect (paragraph 14):
Deceased: You should buy a house or unit on terms or a bank loan so that for the same as rent you will be building up an asset.
Plaintiff: I can’t do that. I wouldn’t even be able to get the deposit.
Deceased: I will give you the deposit. I want you to be safe so that you can shut your own door, lick your wounds and come out fighting again.
49 Later in that affidavit the Plaintiff said that the unit cost $37,000; she had an interview with Westpac Banking Corporation at St. Kilda, but was unable to arrange finance in her name; the unit was bought in the Deceased’s name, with a fifteen year Westpac mortgage, which was arranged by the Deceased through the Canberra branch of that bank; the Deceased paid $15,000 towards the purchase price, legal fees and stamp duty. The Deceased said to the Plaintiff words to the effect, “The deposit etc is a gift to you. I have not given you much in your life. This will make up”.
50 In her oral evidence the Plaintiff amplified some of her affidavit evidence concerning, for example, the interview with the bank manager at St. Kilda. The Plaintiff said that the manager, in refusing her a loan, gave the following reasons: the Plaintiff was a single mother; she did not have high income; she had no other assets; the property was company title, represented by shares, and it was very difficult to obtain a loan for such a purpose.
51 Further, in respect to her conversation with the Deceased about borrowing the purchase price, it was the oral evidence of the Plaintiff that in that conversation she said that she thought that she could pay an amount of $70 a week off the bank loan.
52 The Plaintiff also in her oral evidence said that the Deceased referred to the unit as the Plaintiff’s property. She also said that the conversation with Maggie on the day after the death of the Deceased was the first occasion on which Maggie had ever asserted that the unit did not belong to the Plaintiff.
53 There was in evidence (Exhibit D) a letter from the Bank of New South Wales (as the Westpac Banking Corporation was then known), St. Kilda South branch, addressed to the Deceased (who at that time was residing at 16 Eady Street, Dickson, in the Australian Capital Territory), dated 16 February 1981. That letter (which commenced “Dear Bob”, and was signed by the manager, J. G. Hocking, who concluded with “Kind regards”) advised that settlement of the St. Kilda unit was effected on 11 February 1981, and that the bank paid over an amount of $33,325.86; and that a further $222 was forwarded to the Deceased’s solicitors to cover stamp duty on the transfer of shares. The letter set forth details of further costs and fees incurred by the bank, and then set forth details of the manner in which the loan repayments should be made. The final sentence in the letter is, “Hoping Mrs Brooke settles into her new home.”
54 According to the Plaintiff (paragraph 18 of her affidavit of 30 November 1999), the Deceased often said to her words to the effect, “I’ll transfer the shares to you.” However, that was never done, apparently on account of illness of the Deceased. The Plaintiff said that she replied to such statements of the Deceased by words to the effect, “I am not worried. You have told me that the transfer is covered in your will”.
55 After the death of the Plaintiff’s sister Esther on 16 October 1989 the Deceased stayed with the Plaintiff in the St. Kilda apartment. On the day after Esther’s funeral the Deceased, according to the Plaintiff (paragraph 25), said words to the effect, “I discussed your flat with Stephen [by which the Plaintiff understood the Deceased to mean Stephen Jones, solicitor]. The costs of converting from company to strata would be too much for you to manage.
56 The Plaintiff also said (paragraph 36) that her father had assured her in words to the effect, “I will transfer the shares to you. If I don’t do it for any reason the shares will automatically be transferred to you on my death. Don’t worry.”
57 The evidence of Mrs Demetrios given in her affidavit was that, in consequence of an appointment by an intending purchaser, the Plaintiff and the Deceased inspected the St. Kilda unit. After the first inspection they made one or more subsequent inspections, apparently to negotiate the price. After the price had been agreed upon the Deceased at one of the inspections said to Mrs Demetrios words to the effect, “The bank loan will not be a problem. I am making Laurel a gift of the deposit or whatever is necessary to get the bank loan. You have no need to be concerned.” Mrs Demetrios replied to the effect, “Mr White, how nice that is - what a nice thing you are doing. That is exactly what my father did for me for my first house. He gave me the starting money.”.
58 Mr Anton van Doornik was at material times a director of The Rand Flats Pty Limited. In that capacity in 1980 he interviewed the Plaintiff, together with the Deceased, before the Plaintiff took possession of the St. Kilda unit. It was his evidence that during the interview the Plaintiff in the presence of the Deceased said to Mr van Doornik words to the effect, “I will be the owner. My father is giving me the deposit as a gift. I will be paying the bank off for the rest.”
59 The evidence of the other witnesses who attributed to the Deceased statements concerning the St. Kilda unit related to statements made after the acquisition of that property, some made a considerable time after that acquisition.
60 Mrs Marjorie White, mother of the Plaintiff and former wife of the Deceased, gave evidence concerning an incident which would have occurred in about 1981. According to her evidence, Mrs White was invited by the Plaintiff to see her “new” flat at St. Kilda. To her surprise, the Deceased was also present during her visit. In the presence of the Deceased the Plaintiff said words to the effect, “Dad helped me get the flat”. The Plaintiff, with her arms interlinked with those of the Deceased, led Mrs White from room to room, saying, “And it’s mine Mum, it’s mine.” According to Mrs White, the Plaintiff later (I gather during the course of the same visit) said words to the effect, “Dad paid the deposit. I am to pay off the rest including rates, body corporate fees, maintenance etc. My name could not be used on the shares as I could not get a loan in my name due to my circumstances, so Dad arranged the business with his Canberra bank.”
61 Mr Steven Bayliss had formerly been in a de facto relationship with the Plaintiff and had resided with her in the St. Kilda unit from 1988 to 1996. He currently resides in Queensland. Mr Bayliss first met the Deceased in 1988. It was his evidence that whilst they were attending a football match the Deceased said to him words to the effect, “I will look after Laurel’s interests. No one else will be able to touch her property.”
62 Further, that on the day of the funeral of the Plaintiff’s sister Esther (which was in October 1989), the Deceased said to Mr Bayliss words to the effect, “This will never happen to Laurel. I have control over her property. No man will be able to take it. I helped Laurel with the deposit for the flat and organised a loan for her. The shares are in my name because at the time it was difficult for Laurel to get a loan and banks were reluctant to lend on company title shares.”
63 Further, that at the wedding of the Deceased’s daughter Maggie to her present husband Fergus Campbell the Deceased said to Mr Bayliss words to the effect, “I will have to keep an eye on Laurel’s affairs. I have left the flat to her in my will as I don’t want to sign the shares over to her.”
64 Mr Stephen Jones, a solicitor practising in Melbourne, who was well acquainted with the Plaintiff and members of her family, said that in about late October 1989 the Deceased and his former wife, Mrs Marjorie White, consulted Mr Jones in his professional capacity concerning the estate of their late daughter, Esther Gronert. In the course of that consultation the Deceased said words to the effect, “I gave Laurel money for the deposit to buy herself a flat in Marine Parade, St. Kilda. She is making all the payments on a loan obtained in my name as nominee for her.”
65 Mr Kevin Mulhall has been acquainted with the Plaintiff since about 1980, and he also met the Deceased at about that time. It was his evidence that during a conversation at the St. Kilda flat with the Plaintiff and the Deceased, the suggestion was made that the Deceased purchase a tennis racquet for the Plaintiff. To that suggestion the Deceased replied in words to the effect, “I have no intention of buying her a new racquet or anything else. I have already given her $15,000 so she could buy herself this apartment. She knows damn well she has to pay herself for whatever she thinks she needs.”
66 In her affidavit evidence Maggie Campbell recounted various statements made by the Deceased relevant to the purchase of the St. Kilda unit. They included the Deceased saying on several occasions during the 1980s and 1990s words to the effect, “This unit is a good investment for me. Laurel can live in the unit and her rent will pay off the mortgage. I have put down a substantial deposit which I have calculated on the basis the rent which Laurel can afford to pay” (paragraph 7, affidavit of 4 July 2000).
67 Further, that the Deceased said to Mrs Campbell on a number of occasions over the last fifteen years or so, words to the effect, “I do not know why Laurel thinks I owe her something. She and Esther were left in the best situation out of all my children” (paragraph 8).
68 Mrs Campbell stayed in the St. Kilda unit on two occasions whilst the Deceased was also staying there. During one visit, in or about 1987, after the Plaintiff had showed the Deceased some small improvement she had made to the flat, the Plaintiff, according to Mrs Campbell, said words to the effect, “Look at all the money I am spending on your property.” The Deceased replied to the effect, “It is good to see you are improving my investment for me. This place was a very good buy and it needs to be maintained properly. You are very lucky to be able to live here at such low rent.”
69 In about 1985 Mrs Campbell was having problems concerning her own accommodation. She said to the Deceased, “Will you help me buy a flat like you have done for Laurel?”. The Deceased replied to the effect, “I have not bought that property for Laurel. It is my investment and she is living in it. Her rent pays off my mortgage.”
70 According to Mrs Campbell (paragraphs 21 and 22 of her affidavit of 4 July 2000), the Deceased in conversation with Mrs Campbell referred to the St. Kilda flat as “that’s your inheritance”.
71 Various statements were attributed to the Deceased by Mrs Constance Joan Hall. According to her affidavit of 14 July 2000 the Deceased in the period from 1987 to his death (during which period Mrs Hall and the Deceased were living together) often said to her words to the effect, “The unit at St. Kilda is mine. Laurel pays the mortgage instalments instead of rent.” Further, on a number of occasions in the late 1980s and early 1990s the Deceased stayed at the St. Kilda unit, saying to Mrs Hall words to the effect, “I am staying at the flat at St. Kilda because it’s mine” (paragraph 3).
72 According to Mrs Hall, in about 1994 the Deceased, after a telephone conversation with Mr Bayliss, said to her words to the effect, “Bayliss said the flat was “ours”, meaning his and Laurel’s. I soon corrected him on that. I’m not going to have anything to do with Laurel after this.”
73 Miss Jacqueline Turner, manager of the Port Macquarie Office of the Defendant, gave evidence of an interview which she conducted with the Deceased on 3 April 1997 (at which she obtained instructions for the will which the Deceased executed on 7 April 1997). During the course of that interview the Deceased said to her words to the effect, “My assets include a company title unit at 7/29 Marine Parade, St. Kilda, Victoria. I own 2,400 shares in a company called The Rand Flats Pty Limited and the ownership of the shares gives me the right to possession of the unit”.
74 During the course of the interview the Deceased also said to Mrs Turner words to the effect, “I have a daughter named Anne Brooke who, at birth, was named Laurel White. She lives in my unit as 7/29 Marine Parade, St. Kilda, Victoria. I have not included her in my will as I do not believe Anne is my daughter. I have contested this allegation for years. In addition, I have had no communication with her for over a year.”
75 I would here interpolate that the assertion made by the Deceased during the foregoing interview concerning the paternity of the Plaintiff is totally inconsistent with all other statements attributed to the Deceased (in all of which he referred to and acknowledged the Plaintiff as being his daughter), and is inconsistent with the terms of his 1987 will (in which he includes the Plaintiff within the description “my daughters”). It is also inconsistent with the belief of his de facto spouse, Mrs Hall, who as the informant of the death of the Deceased gave to the Registry of Births, Deaths and Marriages information concerning the children of the Deceased, and included the Plaintiff in the list of those children. In the present proceedings the Defendant did not assert that the Plaintiff was not a daughter of the Deceased.
76 It would appear that there was little contact between the Plaintiff and the Deceased from the time of the foregoing telephone conversation between the Deceased and Mr Bayliss in 1994 until her father’s death about four years later. The last time that the Plaintiff saw her father face to face was in 1996. Although she had subsequent telephonic contact with him, the last time that she spoke to the Deceased by telephone was in early 1997.
77 Various reasons for this limited contact between the Plaintiff and the Deceased during the last four years of his life (during which period it will be appreciated that the Plaintiff was resident in Melbourne and the Deceased was resident at North Haven in New South Wales) were asserted, and denied, by, on the one hand, the Plaintiff, and, on the other hand, Mrs Hall and Mrs White. It will be appreciated that it was during this period of limited contact that the Deceased made his last will, on 7 April 1997. Until then he had a will made some ten years earlier, on 2 November 1987, by which he gave to the Plaintiff his right, title and interest in the St. Kilda unit.
78 The evidence of Mrs Hall and Mrs White was to the effect that the Deceased in the last four years of his life resented the proprietorial attitude which he perceived to be manifested at least by Mr Bayliss, his daughter’s partner, towards the unit. The comments attributed by Mr Bayliss himself to the Deceased on the day of the funeral of the Plaintiff’s sister Esther reveal a protective attitude on the part of the Deceased towards his daughters and their property.
79 However, in deciding the claim of the Plaintiff to a declaration of trust in respect to the St. Kilda unit, it must be appreciated that the facts and circumstances surrounding the acquisition of that property and the statements made by the Deceased at the time of its acquisition are far more significant and are of far greater importance than statements made by or attributed to the Deceased some years later (especially statements attributed to him during the period after contact between the Plaintiff and the Deceased diminished during the last few years of his life, and after he had revoked the 1987 will (the terms of which were totally consistent with such statements attributed to him by the Plaintiff as “...the shares will automatically be transferred to you on my death”)).
80 Much of the evidence given by the Plaintiff and witnesses called in her case was in conflict with the evidence of Mrs Hall and Mrs Campbell.
81 Accordingly, it is appropriate that I express my views concerning the credibility of the witnesses who were cross-examined. In doing so it should be borne in mind that most of the witnesses were giving evidence of events that occurred many (in some instances more than twenty) years ago, and that they cannot be expected to remember them in full detail and with complete accuracy.
82 I regarded Mrs Demetrios, the vendor of the St. Kilda unit, as a totally reliable and conscientious witness. She frankly conceded that she could not remember whether the Plaintiff and the Deceased had inspected the subject property once, or on more than one occasion. However, she had a clear recollection of what the Deceased said. That recollection was fully consistent with the account of events given by the Plaintiff.
83 Mr van Doornik was also an independent witness, who had no reason to offer an untruthful or fabricated version of events which occurred twenty years ago. His recollection was also consistent with the version of events given by the Plaintiff.
84 Similarly, Mr Jones, a member of the legal profession, was an independent witness, who had not seen the Plaintiff herself for many years. His evidence concerning the only occasion when he had contact with the Deceased was clear and precise.
85 The evidence of each of those three totally independent witnesses should, in my view, be accepted in its entirety. The evidence of each of those witnesses concerning events surrounding the acquisition of the home unit is fully consistent with the version of those events set forth in the evidence of the Plaintiff.
86 Mr Bayliss was the former de facto partner of the Plaintiff. Although his relationship with the Plaintiff had come to an end in 1996 and although he had not spoken to her since October 1998 he was prepared to give evidence on behalf of his former de facto partner. Indeed, he travelled from Queensland, where he now resides, for the purpose of giving that evidence. The evidence of a de facto spouse might on occasion be treated with caution. However, there is no reason why a former de facto spouse, whose contact with the Plaintiff has been non-existent for almost the past two years, should necessarily be so treated.
87 It will, however, be appreciated that Mr Bayliss did not become acquainted with the Deceased until 1988, almost eight years after the acquisition of the home unit. Any statements which the Deceased might have made from 1988 to the time of his death concerning the circumstances surrounding that acquisition cannot in any way be determinative of the existence of a trust (be it a resulting trust or a constructive trust) over that property in favour of the Plaintiff. A determination in that regard must depend upon the objective facts and circumstances surrounding the acquisition of the property in late 1980 and early 1981.
88 Mrs White, as the mother of the Plaintiff, might not be regarded as a completely independent witness. However, the version of events given by her was consistent with that given by each of the other witnesses called on behalf of the Plaintiff.
89 Mrs Linda White, although a friend of the Plaintiff, is not a blood relation. She should be regarded as an independent witness, whose version of events again accords with that of other witnesses called for the Plaintiff.
90 Mr Mulhall was not cross-examined. However, his evidence was completely consistent with the evidence given by the Plaintiff and the other witnesses called in her case.
91 I regarded the Plaintiff as a reliable witness, whose evidence was not only corroborated by that of all of the foregoing independent witnesses, but was also consistent with such contemporaneous evidence as the letter of 16 February 1981 from the Bank of New South Wales (Exhibit D), the 1987 will of the Deceased (part of Exhibit A), and the endorsement “Hooray last payment” appearing on the deposit butt of 4 August 1993 (part of Exhibit F), being for the final payment made by the Plaintiff in respect to the mortgage loan. The subsequent conduct of the Plaintiff after the acquisition of the St. Kilda unit was totally consistent with what she stated was the arrangement between herself and the Deceased, in respect to her obligation to repay the entirety of the amount borrowed by the Deceased.
92 The Plaintiff gave her evidence frankly, freely admitting that her father was frequently angry with her, and stating that they had many arguments and disagreements, especially over the Plaintiff’s relationship with Mr Bayliss.
93 The Plaintiff’s financial and material circumstances and her state of health were not the subject of any serious cross-examination.
94 Mrs Campbell is the mother of two of the three conditional residual beneficiaries. It is natural that she would desire to protect the interests of her two children, James Rongen-Hall and Joseph Campbell (especially since the latter is an infant of tender years). Mrs Campbell is a solicitor by profession, although since the birth of her daughter in February 1998 she has not practised as such. She is currently pursuing a higher degree in Law.
95 I was not favourably impressed by the evidence of Mrs Campbell or by her manner and demeanour in giving that evidence. Her affidavit of 27 July 2001, which purports to set forth full details of the financial and material circumstances of herself and her husband (since those circumstances are of relevance and significance in relation to each of her sons James and Joseph), omitted any reference to a very significant amount of money held in a joint account in the name of herself and her husband. The attempted explanation by Mrs Campbell for that omission was unimpressive.
96 At various stages in her cross-examination I regarded Mrs Campbell as being evasive, and manifesting a considerable degree of reluctance to answer direct questions.
97 In her affidavit of 4 July 2000 Mrs Campbell set forth (in paragraph 10) a conversation which she had with the Deceased in which she said, “Will you help me to buy a flat like you have done for Laurel?” When questioned about that conversation Mrs Campbell said that she understood that the Deceased may have bought the St. Kilda unit for the Plaintiff. That response was quite inconsistent with what Mrs Campbell had said in her affidavit evidence or, indeed, in her earlier oral evidence under cross-examination. That response also supports the Plaintiff’s version of what took place between the Plaintiff and the Deceased. However, very shortly after giving the foregoing response Mrs Campbell during the course of her cross-examination then appeared to deny that she had given such an answer.
98 I regarded Mrs Campbell as an unreliable witness. Where her evidence was in conflict with that of the Plaintiff herself or with any of the other witnesses called on behalf of the Plaintiff I preferred the evidence of the Plaintiff and of those other witnesses to the evidence of Mrs Campbell.
99 During the course of her cross-examination Mrs Campbell admitted telling the Plaintiff that Mrs Campbell “would have to protect the interests of her children”. As I have already observed, that, otherwise laudable, attitude on the part of a mother, does not necessarily create a degree of confidence in the Court accepting the evidence of Mrs Campbell.
100 Mrs Hall is the grandmother of two of the three conditional residuary beneficiaries. Further, it is not unfair to say of Mrs Hall that she had problems with her memory at the present time. Those memory problems caused her evidence to be unreliable. Indeed, she appeared to have no memory of any matter of significance upon which she was cross-examined. Mrs Hall even denied all knowledge of a letter dated 13 December 1997 that was quite obviously signed by her, and appeared to be in her handwriting (Exhibit J). The admitted problems which Mrs Hall has with her memory at the present time made her a witness who could not be confidently relied upon by the Court where her evidence was in conflict with that of the Plaintiff or the evidence given by the other witnesses in the case for the Plaintiff.
101 It was submitted on behalf of the Plaintiff that there had arisen in respect to the St. Kilda unit a resulting trust, or, in the alternative, a constructive trust, in favour of the Plaintiff. (As to the distinction between these two categories of trusts, see Jacobs, Law of Trusts in Australia, 6 ed. (1997), Chapters 12 and 13, especially page 306, paragraph [1301].)
102 If the Plaintiff’s evidence is accepted, and if it be established that the Deceased made a gift to her of the initial amount of $15,000 towards the deposit on the purchase price, and if the Plaintiff has repaid the whole of the balance of the amount borrowed, then there is a resulting trust in favour of the Plaintiff in respect to the St. Kilda unit.
103 In this regard the submissions on behalf of the Defendant placed considerable weight on the fact that the initial payment for a deposit and associated expenses, totalling about $15,000, was made directly from the bank account of the Deceased. It was submitted that, in consequence, the Plaintiff herself had not paid that amount, although she had paid the balance of the amount owing under the mortgage. Further, that that balance represented the equivalent of rent or occupation fee payable by the Plaintiff in return for the Deceased allowing her to occupy the St. Kilda unit.
104 The Defendant in this regard placed reliance upon the decision of Lord Cranworth LC in Jones v Lock (1865) 1 Ch. App. 25. That was, however, a case of an incomplete gift, the decision in which depended upon its own facts. (His Lordship considered that “it would be of very dangerous example if loose conversations of this sort, in important transactions of this kind, should have the effect of declarations of trust”.) That decision does not preclude me from arriving at the conclusion, in the instant case, that the Deceased held the St. Kilda unit upon a resulting trust for the Plaintiff.
105 The foregoing submission of the Defendant, grounded upon the fact that the Deceased paid directly out of his own bank account the preliminary amounts totalling $15,000, whilst saying both to the Plaintiff and to other persons (such as Mrs Demetrios and the bank manager) that he was making a gift to the Plaintiff of that amount, seems to me to emphasise form at the expense of substance. As I understand it, if the Deceased had given to her a cheque in favour of the Plaintiff for $15,000 and the Plaintiff had then written a cheque in the same amount in favour of the Bank of New South Wales, the Defendant would accept that there had been a payment of the original amount by the Plaintiff towards the purchase. But because the $15,000, although stated by the Deceased to be a gift from him to the Plaintiff, was paid directly from his own bank account to the Bank of New South Wales, the Defendant submits that that payment cannot be regarded or treated as a payment by the Plaintiff of the $15,000.
106 As a matter of practicality and business efficiency one would hardly expect that the Deceased, intending to make a gift to his daughter of the amount of the deposit and associated preliminary expenses for the purchase of a home unit which was being financed by a mortgage loan granted by the Bank of New South Wales (with which bank the Deceased himself conducted an account), would write a cheque in favour of his daughter for the appropriate amount, and then require her contemporaneously to write a cheque for the identical amount in favour of the Bank. As I have said, the foregoing submission sacrifices substance to form. I reject that submission.
107 I am entirely satisfied that the arrangements between the Deceased, his bank and the Plaintiff were that all three regarded the Deceased as making a gift to the Plaintiff of the foregoing sum of $15,000. That arrangement is totally consistent with the letter of 16 February 1981 from the bank to the Deceased.
108 The Deceased himself may well at later times have denied such an arrangement, and may have asserted that he was the beneficial owner of the St. Kilda unit, and that the Plaintiff in making the mortgage repayments was merely, in effect, paying an occupation fee in return for being allowed to reside in her father’s unit. Nevertheless, the occasion when Mrs Marjorie White visited the unit at the same time as the Deceased also visited it, and the Plaintiff, whilst interlinking her arms with those of her father, led the three of them through the apartment, saying “And it’s mine Mum, it’s mine”, without any rejection by the Deceased as to the accuracy of the Plaintiff’s assertion, is strong evidence supporting a recognition by the Deceased himself that the beneficial ownership of the unit was in the Plaintiff.
109 Further, I regard as revealing the evidence of Mrs Campbell (to which I have already made reference) concerning her conversation with the Deceased in about 1985, when she said, “Will you help me to buy a flat like you have done for Laurel?”. That question (irrespective of the response attributed by Mrs Campbell to the Deceased) indicates a belief by Mrs Campbell at that time that the Deceased had, in fact, purchased a residence for the Plaintiff.
110 I am satisfied that the payment of the totality of the purchase price by the Plaintiff (funded by the original gift of $15,000 from her father, and the subsequent mortgage payments by herself over the succeeding twelve years) constitutes a resulting trust in favour of the Plaintiff over the St. Kilda unit.
111 Further, even if (contrary to the conclusion which I have just expressed) the Court were not to accept that a resulting trust came into existence, the circumstances of the instant case are a classic occasion for the imposition of a constructive trust (of the nature recognised by the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137).
112 Accordingly, I am satisfied that, even if (contrary to my foregoing conclusion) there has not arisen a resulting trust in favour of the Plaintiff over the St. Kilda unit, there has arisen a constructive trust in her favour in respect to that property.
113 The consequence of my foregoing conclusions is that the Deceased during his lifetime held, and the Public Trustee (as trustee appointed under his will) after his death holds, the St. Kilda unit, and the shares representing the legal ownership of that unit, on trust for the Plaintiff absolutely. Accordingly, a declaration of the nature sought in prayer 1 of the amended summons will be made.
114 A consequence of the foregoing conclusion in respect to a trust in favour of the Plaintiff over the St. Kilda unit is that the Plaintiff will be secure in her accommodation. It follows, therefore, that the contemplated significant need of the Plaintiff, upon which her claim under the Family Provision Act was essentially based, being a need for secure accommodation, will not arise.
115 However, it is still necessary to consider the financial and material circumstances of the Plaintiff in respect to her claim for an order for provision under the Family Provision Act.
116 The Plaintiff is presently fifty-four years of age. She is not in good health. Medical and hospital reports are contained in Exhibit E. The Plaintiff suffered a fall at work in 1991, injuring her back, which was aggravated by a further injury in 1993. She has not been able to work since that time. The Plaintiff continues to suffer severe chronic back pain, multiple sclerosis, hypertension and depression. The prognosis for her back is poor, as also is that for the multiple sclerosis. She has been hospitalised for varying periods, and has undergone a number of surgical procedures. Those procedures have necessitated her using crutches and using a spinal brace at various times.
117 From 1994 to 1998 the Plaintiff received WorkCover payments, in amounts which were less than her usual earnings. She subsequently received lump sum compensation as a result of her injuries in an amount of $260,000. Apart from what remains of that lump sum (presently an amount of $245,000), the Plaintiff’s only other assets are a 1992 Daihatsu sedan motor car and household furniture and contents.
118 Since 1993 the Plaintiff has been in hospital on numerous occasions (including one period of six weeks and another period of nine weeks). She has been informed by her treating doctors that she is likely to require further hospitalisation for her back condition. The WorkCover authority will continue to pay reasonable medical and like expenses for the Plaintiff, including personal and domestic assistance. The Plaintiff suffers constant pain and takes prescribed medication. She is reliant on home care for shopping and for some domestic assistance, she also receives household assistance from her children. The Plaintiff lives alone in the St. Kilda Unit, and maintains a frugal lifestyle.
119 The Plaintiff holds a capital sum (presently in an amount of $245,000) representing the balance of the aforesaid compensation which she received in respect to the injuries which she sustained in her work related accident. In addition, her solicitor holds an amount of $16,000 on account of unpaid costs and disbursements in the present proceedings. The Plaintiff herself has already paid $13,500 on account of costs already incurred, as well as $4,000 for accommodation and travel expenses for herself and other witnesses who have travelled to Sydney to attend for cross-examination.
120 The Plaintiff has not worked since 1993. She is not eligible to receive any Social Security payments until, at the earliest, November 2004.
121 Had I not concluded that the Plaintiff was entitled to a declaration that the St. Kilda unit is held on trust for her, I would have had no hesitation in making an order for her provision under the Family Provision Act, by way of a gift to her of the shares representing the St. Kilda unit (its present value being $350,000), or by way of a legacy which would enable her to purchase those shares.
122 It will be appreciated that, apart from the St. Kilda unit, the assets in the estate have a present value of about $120,000. However, as I have already, earlier in this judgment, observed, the Court, in approaching the value of the estate available for distribution, must take into account the costs of the present proceedings. Those costs, for both the Plaintiff and the Defendant, total in excess of $70,000. In consequence, therefore, the distributable estate after the payment of the costs of the present proceedings will be in an amount of about $50,000.
123 I have already expressed the view that, in the event that there were not a trust in favour of the Plaintiff, she would be entitled to an order for provision out of the estate which would give to her the St. Kilda unit absolutely, or which would give to her a monetary amount sufficient to purchase that property from the estate. However, the Plaintiff seeks, in addition, the balance of the estate.
124 None of the three conditional residuary beneficiaries is an eligible person in relation to the Deceased. However, it must be recognised that each of those three persons was the chosen object of the testamentary beneficence of their grandfather.
125 Further, it has been submitted on behalf of the Defendant that there are competing claims upon the testamentary bounty of the Deceased which would have the effect of reducing, or even extinguishing any order for provision an entitlement to which the Plaintiff might otherwise have established.
126 Evidence has been placed before the Court concerning the financial and material circumstances of each of James Rongen-Hall and Joseph Campbell. James who is presently aged twenty (having been born on 22 July 1981) completed some training and part of his apprenticeship to become a chef. Since 1994 he has resided with his mother and his stepfather (except for a period of about six months from late 1999). He is currently pursuing his HSC as a full time student with TAFE. He has had some part-time jobs during that period.
127 It is no longer the desire of James to become a chef. He wishes to attend a course at the Film and Television School of the Charles Sturt University at Wagga Wagga. That will necessitate his leaving home and moving into rented accommodation in the vicinity of that university. James will also need to travel between Wagga Wagga and his parental home in Sydney, and desires that he have a motor vehicle for that purpose. He owns no motor vehicle at the present time, and holds no credit cards. He has a bank account containing a small balance, and his only asset is a personal computer worth about $1,000, which was a gift from his stepfather. If James attends the course at Wagga Wagga, he would incur accommodation and living expenses, as well as tuition fees of about $3,500 a year over the three year course. It is his understanding that the cost of accommodation over that period would total about $5,000.
128 Joseph Campbell, who is presently aged nine, resides with his parents in their residence at 7 Ronald Avenue, Greenwich. He is totally dependent upon them. The evidence discloses that they are in extremely comfortable, not to say affluent, circumstances. They are fully able to meet all expenses relating to Joseph’s education and upbringing for the foreseeable future.
129 The remaining conditional residuary beneficiary, Kate (who is an adult, now aged 24) expressly supports the claim of the Plaintiff, and has placed before the Court no evidence which would have the effect of reducing the Plaintiff’s entitlement to an order for provision out of the estate of the Deceased.
130 It will be appreciated that the Plaintiff, for at least the next three years (until she becomes entitled to Social Security benefits in 2004), must subsist upon her capital fund of $245,000, and the income earned thereon. That amount is presently invested in a Commonwealth Bank commercial bill, returning interest at the rate of 4.75% per annum. According to the Plaintiff, she receives about $190.20 a week from that investment. The Plaintiff now receives a low income card for medical prescriptions.
131 I have already referred to the submission on behalf of the Plaintiff that, even apart from her entitlement (be it in consequence of the existence of a trust, or be it as a result of an order under the Family Provision Act) to the St. Kilda unit, the Plaintiff should, in addition, receive the balance of the estate of the Deceased. I recognise, however, that of the three chosen objects of the testamentary beneficence of the Deceased, James is a young man of twenty who has his way to make in life. Although at present secure in his family circumstances, that security will probably come to an end when he leaves the residence of his mother and stepfather and, in order to qualify for his chosen career in film and television, has to live independently whilst pursuing his tertiary studies. He should not be deprived entirely of a benefit under the will of his grandfather.
132 Whilst Joseph, the infant beneficiary, is secure in the family of his parents, and supported by them in very comfortable circumstances, his father (although presently affluent) is, in fact, not presently employed (although he expects to obtain another position in the computer software industry). I consider that Joseph is entitled to have an independent benefit retained for him, from the estate of his grandfather, which, at an appropriate time, will assist in giving him a start in life.
133 It has already been recorded that the remaining conditional residual beneficiary, Kate, also a grandchild of the Deceased, supports the claim of the Plaintiff. In my conclusion the competing claims of James and Joseph are not such as should reduce, let alone extinguish, any order for provision an entitlement to which the Plaintiff has otherwise established,. However, neither James nor Joseph should be deprived entirely of a benefit under the will of the Deceased. In those circumstances, therefore, any additional benefit to which the Plaintiff might be entitled under the Family Provision Act should be such as would not reduce the entitlement of James or Joseph, but should be borne by the entitlement of Kate under the will of the Deceased.
134 In my conclusion, the Plaintiff is entitled, in addition to the declaration of trust sought in prayer 1 of the amended summons, to an order for provision that will assist her financially in the next three years, until she becomes eligible to receive Social Security benefits. I consider that she should receive out of the estate of the Deceased one third of the residue of that estate, that benefit to be borne by that part of the estate to which Kate is conditionally entitled.
135 I make the following orders:
(2). I order that the Plaintiff receive out of the estate of the late Sydney Robert White (“the Deceased”) one third of residue, that benefit to be borne by the part of residue to which under the terms of the will of the Deceased his grand-daughter Kate White is conditionally entitled.
(1). I make a declaration as in prayer 1 in the amended summons.
136 The exhibits may be returned.
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