Christie v Edward
[2012] WASC 265
•25 JULY 2012
CHRISTIE -v- EDWARD [2012] WASC 265
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 265 | |
| Case No: | CIV:1475/2010 | 27 JUNE 2012 | |
| Coram: | McKECHNIE J | 25/07/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Will varied to increase payment to the plaintiff | ||
| B | |||
| PDF Version |
| Parties: | JANELLE LEE CHRISTIE PATRICIA MAY EDWARD (as Executrix of the Estate of the late ROBYN LEE CHRISTIE (Dec)) ROCHELLE ANNE HARRISON DOROTHY MARGARET HAYDONWOOD MARJORIE BERYL CHRISTIE JANIE HUTTON VALMA ANNE BULMER MARJORIE BERYL MILLS |
Catchwords: | Inheritance Whether adequate provision made Whether disentitling conduct |
Legislation: | Inheritance (Family and Dependents Provision) Act 1972 (WA) |
Case References: | Hannaford v Hannaford [2010] NSWSC 911 Hastings v Hastings [2008] NSWSC 1310 Kleinig v Neal [No 2] (1981) 2 NSWLR 532 Mulhall v Permanent Trustee [2004] NSWSC 365 Palmer v Dolman [2005] NSWCA 361 Pizzino v Pizzino [2010] QSC 35 Walker v Walker (Unreported, SCNSW, BC 9602381, 17 May 1996) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PATRICIA MAY EDWARD (as Executrix of the Estate of the late ROBYN LEE CHRISTIE (Dec))
First Defendant
ROCHELLE ANNE HARRISON
Second Defendant
DOROTHY MARGARET HAYDONWOOD
Third Defendant
MARJORIE BERYL CHRISTIE
Fourth Defendant
JANIE HUTTON
Fifth Defendant
VALMA ANNE BULMER
Sixth Defendant
MARJORIE BERYL MILLS
Seventh Defendant
Catchwords:
Inheritance - Whether adequate provision made - Whether disentitling conduct
Legislation:
Inheritance (Family and Dependents Provision) Act 1972 (WA)
Result:
Will varied to increase payment to the plaintiff
Category: B
Representation:
Counsel:
Plaintiff : Dr J J Hockley
First Defendant : Mr S K Shepherd
Second Defendant : Mr S K Shepherd
Third Defendant : Mr S K Shepherd
Fourth Defendant : Mr S K Shepherd
Fifth Defendant : Mr S K Shepherd
Sixth Defendant : Mr S K Shepherd
Seventh Defendant : Mr S K Shepherd
Solicitors:
Plaintiff : Carlo Primerano & Associates
First Defendant : Verschuer Edward
Second Defendant : Verschuer Edward
Third Defendant : Verschuer Edward
Fourth Defendant : Verschuer Edward
Fifth Defendant : Verschuer Edward
Sixth Defendant : Verschuer Edward
Seventh Defendant : Verschuer Edward
(Page 3)
Case(s) referred to in judgment(s):
Hannaford v Hannaford [2010] NSWSC 911
Hastings v Hastings [2008] NSWSC 1310
Kleinig v Neal [No 2] (1981) 2 NSWLR 532
Mulhall v Permanent Trustee [2004] NSWSC 365
Palmer v Dolman [2005] NSWCA 361
Pizzino v Pizzino [2010] QSC 35
Walker v Walker (Unreported, SCNSW, BC 9602381, 17 May 1996)
(Page 4)
- McKECHNIE J:
How this case comes to court
1 Two days before she died of ovarian cancer, and with the assistance of a solicitor, Robyn Christie made her last will and testament. From her modest estate, which counsel now agree has a net worth about $200,000, she left her daughter, Janelle, $10,000. The balance of the estate (except for some jewellery which is not in issue) was given to her four sisters and her mother who is now 80 years old. Janelle had been estranged from her mother after an incident on 8 November 2005 for which Janelle has frankly accepted responsibility. Her mother obtained a violence restraining order and did not wish to see her daughter again.
2 Janelle now comes to this court seeking further provision be made out of the estate in her favour under the Inheritance (Family and Dependants Provisions) Act 1972 (WA). Her grandmother and aunts oppose her application.
The issues
Is there jurisdiction to make an order?
Yes.
Does Janelle's conduct disentitle her to an order in her favour?
No.
Should an order be made in Janelle's favour?
Yes.
The parties
The deceased - Robyn Lee Christie
3 Robyn was born on 13 March 1958 and Janelle is her only child. She raised Janelle. Even while Janelle was doing drugs and behaving badly she continued to support her until the incident in 2005. She refused to see Janelle after that. In 2003 Robyn was diagnosed with ovarian cancer and went to live with her friend Kaye in Ellenbrook. She made her will on 23 February 2009 and died two days later. Probate was granted to her executor, a solicitor Ms Edward, who is sued in that capacity as the first defendant.
(Page 5)
The plaintiff - Janelle Lee Christie
4 Janelle Lee Christie was born on 18 November 1976. She did not know her father because he and her mother separated when Janelle was very young.
5 Janelle swore four affidavits and gave oral evidence, chiefly by way of cross-examination. She was forthright and candid about the problems in her life and about various incidents which had occurred. She acknowledged the nature of the relationship she had with her mother, Robyn. It is not necessary for me to detail Janelle's life to date other than to say that from the age of 20 she began to use drugs and that her drug addiction has characterised much of her life from that time, although she has now undertaken a positive step aimed at dealing with and overcoming her addiction to drugs and alcohol. It is hardly surprising that her drug use and behaviour has put a strain on her relationships with her aunts, grandmother and more particularly her late mother. This culminated in the incident in 2005 for which she accepts responsibility. As a result of that incident she and her mother were estranged.
6 In her affidavits Janelle speaks of her present medical condition and the treatment she requires and is having. A psychologist gave evidence as to her current state and the cost of continuing counselling.
Marjorie Beryl Mills
7 Marjorie is Robyn's mother and was born on 19 February 1932 and is now 80. She has detailed her medical issues and expensive treatment though she lives on an aged pension. She was very close to Robyn and gave evidence of Robyn's intention and why she named her mother as beneficiary in her will (affidavit par 13).
Janie Hutton
8 Janie is Robyn's sister, Janelle's aunt and is 54 years old. In her affidavit she sets out her financial situation which is not good. She was close to Robyn.
Dorothy Margaret Haydon-Wood
9 Dorothy, aged 56, is a sister of Robyn. She describes her means as 'just comfortable but far from affluent' and when she reaches retirement age will have to seek the assistance of HomesWest.
(Page 6)
Valma Anne Bulmer
10 Valma is the youngest sister of Robyn and is somewhat better off than her other sisters.
Comment
11 A feature of the affidavits of Robyn's sisters and mother are their refutation of certain aspects of Janelle's affidavits (which have now by consent been struck out). What comes through clearly is their disapproval both of Janelle's drug taking, lifestyle and above all their perception of her treatment of her mother. Their attitude is human and understandable. However, it is worthwhile remembering, as Justice Kirby once remarked, that the focus of the Act is upon property, dollars and cents; not emotion and ethical desserts.
The jurisdictional issue
12 Janelle, as a child of the deceased, claims that the disposition of the deceased's estate effected by her will is not such as to make adequate provision from the estate for her proper maintenance, support, education or advancement in life: Inheritance (Family and Dependents Provision) Act s 6(1).
13 As at February 2009 Janelle had received a naltrexone implant to control her heroin addiction. She was, and is, infected with Hepatitis C. She had obtained a disability support pension and had commenced dealing with her psychological issues and mood disorders. Janelle and Robyn had a mother and daughter relationship which must have been very difficult for all concerned, due principally to Janelle's drug addiction. Nevertheless, they lived together until Janelle's teenage years and then from 1998 until the incident in November 2005. Robyn knew of, though disapproved of, Janelle's drug taking and lifestyle and, until their estrangement, had made efforts to assist Janelle.
14 In other words, during her life, until the incident, Robyn had assumed the moral duties of a mother to her daughter in assisting Janelle as best she could. Janelle's need for proper maintenance and support in February 2009 is obvious, having regard to her health issues and the efforts she was making to address them and make positive changes to leave her chaotic lifestyle. I am mindful of the defendants' written submissions, particularly par 16, and have taken into account the totality of the relationship. The matters enumerated are the physical manifestations and indicia of a mental condition of addiction.
(Page 7)
15 The notional wise and just, if not loving, testator would have recognised the need for ongoing support and maintenance, notwithstanding the estrangement of the past three and a half years.
16 Although the estate is modest and there are other claims on the testator's bounty which deserve recognition, nevertheless a bequest of $10,000 to Janelle in the circumstances set out in her affidavits is not such as to make adequate provision from the estate.
17 Jurisdiction to make an award is therefore triggered.
Disentitling conduct
18 Once she commenced her drug taking, Janelle's behaviour would have brought tears to a saint. The incident which caused Robyn to take out a violence restraining order occurred when Robyn was already ill with ovarian cancer. Janelle knew that she was Hepatitis C positive and that it is a blood transmitted disease. Nevertheless she behaved as she did.
19 There are examples of conduct which have been held to be or not to be disentitling conduct and they give some useful guidance.
20 Some of the authorities include Hannaford v Hannaford [2010] NSWSC 911, Kleinig v Neal [No 2] (1981) 2 NSWLR 532; Walker v Walker (Unreported, SCNSW, BC 9602381, 17 May 1996); Mulhall v Permanent Trustee [2004] NSWSC 365.
21 Two cases with some analogy to the present are Pizzino v Pizzino [2010] QSC 35 and Hastings v Hastings [2008] NSWSC 1310.
22 The estrangement between Robyn and Janelle following the incident cannot be described as 'mere' [compare Palmer v Dolman [2005] NSWCA 361]. Nevertheless, having regard to the whole of their history, though mindful of the fact that the difficulties between mother and daughter were principally due to the daughter's drug taking, I do not consider that Janelle's behaviour has disentitled her from provision for her maintenance and advancement. It does though have an effect on the amount she should receive. I will exercise my discretion to make an award in her favour but will take her conduct into account. I will also take account of other claims on the testator's bounty that have merit.
What award should be made
23 Janelle is a disability support pensioner. She would like to undergo treatment in relation to her Hepatitis C and has been advised that it would
(Page 8)
- respond well to Interferon treatment. She deposes that as at 12 June 2012 she has not used heroin or any other illicit drugs for approximately two years. She has significantly reduced her alcohol use. She has been seeing a psychologist regularly since March 2012, having resumed counselling after a period.
24 Her counsellor, Kaye Houghton, gave evidence of the progress that has been made and the cost of treatment after the Medicare rebate is exhausted. Ms Houghton provided a psychological report and gave evidence at the hearing. She noted that since her affidavit there had been nine further sessions. When Janelle re-engaged in March there was a difference in her presentation. She was more settled and able to partake in constructive conversations. She appears motivated to continue to address her substance abuse, particularly alcohol, and has spoken about her educational prospects including studying acting at WAAPA. Ms Houghton noted that there were no external signs of heroin and that the problem is mostly alcohol. She noted that a relapse prevention plan lasts forever and that counselling to set up a model of relapse prevention would need to take place over 12 months. Ms Houghton has been bulk billing under the current Mental Healthcare Plan which only allows for ten sessions with an extra six in extraordinary circumstances. The sessions otherwise are $150 each.
25 Janelle has recently attended an acting workshop and would like to do further in that field. Due to her past and her health issues she is precluded from many occupations.
26 Janelle says that she is agreeable to any money being held on trust or managed by an appropriate third party to be used towards the acquisition of a property to live in and is determined to move on from the lifestyle she had in the past.
27 A wise and just parent wishing to make adequate provision for Janelle would not vest money in Janelle without some form of protection against it being immediately squandered in drugs.
28 There are other matters to take into account. The estate itself is modest. Janelle's behaviour towards her mother over the years, and particularly in relation to the incident, while not disentitling her from claiming, is nevertheless a relevant factor to be taken into account in exercising a discretion as to the amount which should be allowed from a modest estate to a person who has demonstrated need. Another factor to be taken into account is the moral duty owed to the other beneficiaries. It
(Page 9)
- might be argued (as Janelle's counsel indeed does) that most siblings and parents do not expect to benefit from their sister's or daughter's estate. That may be generally true, but it does not resolve particular cases. Here, the relationship between the deceased and her sisters and her mother was loving, ongoing, especially through Robyn's ovarian cancer. Some of the sisters are not well off financially and in particular her mother has health and other needs as great as those of Janelle. In the circumstances, I have no hesitation in concluding that a moral duty arises to provide for Robyn's mother. The will should not be rewritten to a greater extent than necessary. Having regard to the closeness of the sisters to Robyn and the care shown by them to her, I am not prepared to frustrate Robyn's intentions to benefit them by leaving them out of account. The fact is that the modesty of the estate precludes anyone, including Janelle, from receiving much or indeed what may be necessary.
29 Based on the recollections of her mother, sisters and daughter, if Robyn had known of Janelle's continuing efforts to leave her drug addiction and its lifestyle behind her and rehabilitate herself and her present need for funding to help for accommodation and to properly maintain, support and advance her, then despite the estrangement and the reprehensible behaviour, she would have made a greater provision for Janelle in her will.
Conclusion
30 Taking all those matters into account and applying test of a wise and just, if not loving, testator, I would vary the will by altering the second clause marked '2' (really 3) by adding to the list of beneficiaries the name Janelle Lee Christie.
31 I will hear from counsel as to the appropriate orders so that the bequest may be protected in the event that Janelle relapses.
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