Colebatch v Colebatch

[2007] NSWSC 30

CITATION:	Colebatch v Colebatch [2007] NSWSC 30
HEARING DATE(S):	18, 19 and 20 October 2006
JUDGMENT DATE :	19 February 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraph 55
CATCHWORDS:	Family Provision Act application. Claim by adult son. Legacy awarded. No mattter of principle.
PARTIES:	James Gordon Colebatch v Eva Sophia Colebatch - Estate of Hal John Hester Colebatch
FILE NUMBER(S):	SC 1843/2005
COUNSEL:	Mr P Hallen SC and Miss S Christie for plaintiff Mr L Ellison SC for defendant
SOLICITORS:	Beilby Poulden Costello for plaintiff Tress Cox Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 19 February 2007

1843/2005 JAMES GORDON COLEBATCH v EVE SOPHIA COLEBATCH (Estate of Hal John Hester Colebatch)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Hal John Hester Colebatch who died on 9 September 2004 aged 75 years. His wife from whom he was divorced had predeceased him. He was survived by his two children, James Gordon Colebatch, the plaintiff, and Eve Sophia Colebatch, the defendant.

Last will of the deceased

2 The deceased made his last will on 16 June 2005 with a codicil dated 13 July 2004. Under his will he gave a legacy of $100,000 to his sister Mary Maude Winter. He gave his jewellery and personalty to his daughter, Eve. The residue of his estate was divided as to $1,000 to his son, James, and the balance to his daughter absolutely. Under the codicil the deceased reduced the legacy in favour of his sister from $100,000 to $20,000. His daughter, Eve, was appointed executor under the will. The deceased executed a statutory declaration at the time of his will explaining why he had only left James $1,000. I will return to the detail of the statutory declaration later when considering the relationship between the deceased and his children.

Assets in the estate

3 In the application for probate the personalty and shares owned by the deceased were listed at $1,256,125. The deceased owned a unit jointly with his daughter, Eve, situated at 297 Malabar Road, Maroubra. His half share was estimated at $325,000 and was subject to a mortgage which at the date of death was approximately $250,000.

4 After the grant of probate Eve sold some shares and discharged the mortgage over the unit held jointly with the deceased. She arranged for a notice of death to be filed and the unit was transferred into her name. In addition she distributed the estate’s shares to herself and paid the sum of $1,000 and $20,000 under the will. At the time she distributed the assets she knew that her brother intended to bring an application under the Family Provision Act.

5 At the date of hearing there is no estate and if an order is made it will be necessary to designate some assets which are held by Eve as notional estate.

6 It is also apparent that the estimate of the size of the estate was not accurate in the application for probate. In the hearing much time was taken up to try and identify what was the estate which was distributed by Eve to herself. It appears that the value of the estate shares which have been retained by the daughter at the date of hearing is $1,237,909. In addition Eve sold estate shares which produced proceeds of $369,058. She also received from the estate various bank accounts and items of furniture totalling $41,139.17.

7 At the hearing the value of the unit was reduced to $600,000 with the deceased’s share valued at $300,000. As well as the capital items to which I have referred since the date of death Eve also received dividends from the estate shares in an amount of $131,591.

8 So far as liabilities are concerned the mortgage on the unit was paid out in the sum of $254,660.44. Including this amount the total amount of the debts which have been paid appear to be $302,953.61.

9 In addition there are costs. Eve Colebatch’s costs up to the conclusion of the hearing are estimated at $155,958. She has already paid a large part of these costs. James Colebatch’s costs amount to $85,508.

Family history

10 The deceased was born on 30 November 1928 and in April 1953 he contracted poliomyelitis. His son, James, was born on 8 June 1955 and his daughter, Eve, on 13 August 1958. The deceased and his wife separated in 1971 when the deceased moved out of the matrimonial home and rented a property at Darling Point. The children remained in the family home with their mother. The deceased and his wife divorced on 9 June 1976. Between 1973 and 1978 James attended the University of New South Wales studying medicine as did his father. The deceased was a well-known specialist. In the period between 1978 and 1981 Eve lived in Canberra where she worked in the Department of Foreign Affairs and Trade. She frequently returned to Sydney to stay with the deceased during this period.

11 James Colebatch married his wife, Pnina, in London in November 1978 and he graduated in 1979 and was awarded the University Medal with First Class Honours.

12 In 1981 Eve Colebatch left Canberra and returned to Sydney. In 1981 the deceased made a will in which both his children shared his estate equally. In 1983 Eve moved to Melbourne and then Canberra where she commenced employment with the Department of Foreign Affairs and Trade. In 1985 the deceased was appointed Head of the Department of Respiratory Medicine at Prince Henry Hospital.

13 In 1987 James went to London where he worked until 1990.

14 In 1987 Eve was posted to Vietnam in connection with her employment and she did not return until October 1992. At this time deceased stopped full time work. In 1992 Eve returned to Australia and lived one month with the deceased before returning to Canberra.

15 In March 1993 the deceased made a will which gave one-third of his estate to James and two-thirds to Eve.

16 On 25 March 1993 he made another will in which he gave $20,000 to each of his two grandchildren, one-third of residue to James, two-thirds to Eve.

17 In March 1993 the deceased’s wife, Elvita, had breast surgery for cancer which recurred in 1995. She made her will in 1996 in which she gave Eve $200,000 and James $200,000. Later in that year she reduced Eve’s legacy to $50,000 and increased James’ legacy to $500,000. James became one of two executors under her will. On 21 December 1996 Elvita Clough died leaving a net estate approximately $2.035million which went mainly to charities. In June 1997 Eve brought a Family Provision Act summons against her mother’s estate. This caused an enduring bitterness between James and Eve which was made worse by the provisions of the deceased’s will.

18 In November 1996 the deceased moved to Perth to live with his sister but he returned in 1997 where he lived for a time at the Southern Cross Homes Retirement Village.

19 In 1998 the deceased broke a femur in a fall and Eve took long leave from Department of Foreign Affairs & Trade to come to Sydney to look after her father.

20 In 1990 Eve settled her Family Provision Act claim for an additional $40,000 plus a superannuation benefit. She and James both received $311,606 from superannuation.

21 In 1998 James and his wife bought a property at 9 March Street, Bellevue Hill for $1,425,000.

22 Eve was appointed enduring guardian of the deceased in 2000. In 2002 the deceased reduced the share going James to one-quarter and gave three-quarters of his estate to Eve. In 2002 James who had previously been an Associate Professor was made Head of Department at Prince of Wales Hospital.

23 At this stage the deceased suffered from chronic depression from which he had suffered earlier in life. In 2003 Eve moved permanently to Sydney to look after her father. She resigned her position with Commonwealth Public Service and lived in the deceased’s unit although she had her own unit across the road which she had bought with funds released from her move from Canberra.

24 In September2003 the deceased made another will in which he gave $20,000 to sister Mary Maude Winter, 10% of the estate to James and90% to Eve.

25 As I have said the deceased made his last will on 16 June 2004. The deceased died on 9 September 2004. These proceedings were commenced within time.

Eligibility

26 James Colebatch is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

“The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors”.

Dr Colebatch’s situation in life

27 James Colebatch is 51 years of age and is married with two sons, Michael, aged 20 years and, Andrew aged 23 years. They attend university and reside at home and are still dependent on him. He is a Senior Staff Specialist Neurologist at the Prince of Wales Hospital. He is Head of the Department of Neurology and holds a conjoint appointment as a Professor in the Faculty of Medicine at the University of New South Wales. In his position he has right of private practice. For the year ended 30 June 2005 his taxable income from both sources totalled $186,277. His income for the current year will be higher as there has been a 14% increase in his staff salary and the cap on the private income which he can receive pursuant to the terms of his employment. His evidence demonstrates that in the year ended 30 June 2004 the whole of his income was used to meet his living expenses. There is no reason to think that the same situation would not be the case at the present time.

28 James Colebatch and his wife own their residence at 9 March Street, Bellevue Hill which is valued at $2,950,000. They have two motor vehicles valued at $16,000 and $15,000. They estimate the value of their furniture at $50,000 and they have money in the bank of some $23,000. Dr Colebatch has superannuation which provides for him to receive $774,112 on retirement at the age of 58 or $1,127,759 on retirement at the age of 70. In the event that he retires before the age of 58 or 70 he will receive substantially less than these amounts.

29 James Colebatch and his wife have debts in respect of the home loans of $295,967 and other debts including a liability for costs in these proceedings of $87,290.

30 Mrs Pnina Colebatch works for her husband managing his private practice and in this regard she is paid a small annual wage. Apart from this activity which occupies probably one day a week she cares for the family and has not worked in her occupation as a beautician for many years.

Eve Colebatch’s situation in life

31 Eve Colebatch is 48 years of age. She has never married and has no children. As I have mentioned she was employed by the Department of Foreign Affairs and Trade from 1983 until March 2004. She was a middle ranking policy officer specialising in East Asian policy issues. She was seconded to the Department of the Environment and Heritage in March 2001 until 30 June 2003 when she applied for and obtained carer’s leave from the department and subsequently redundancy. After caring for the deceased until his death in 2004 she has looked for employment but as yet she has not been successful. I think it likely that she will eventually obtain employment given her extensive skills and she estimates that her salary would be in the range of $50,000 and $65,000 per annum.

32 Eve Colebatch owns the unit where she lives which is unencumbered and is valued at $600,000. She has a car worth $39,000, furniture of $30,000, cash at the bank of $143,000 and a share portfolio of $1,455,886. She also has superannuation of some $166,796. Her liabilities include tax and unpaid legal fees in respect of these proceedings totalling $81,938. Currently based on the income which she receives from her investment portfolio after paying tax and all her living expenses she has a surplus income over and above her expenditure of $41,201 per annum.

33 Miss Colebatch has some medical problems such as kidney and bladder ailments and osteoarthritis which require on-going treatment. She has a relationship with a friend, Stephen, who lives in Canberra. They see each other on a monthly basis. She does not think that the relationship will progress further than it is at present.

Relationship between James Colebatch and his father

34 The deceased who was a medical practitioner contracted poliomyelitis in April 1953 while working in the infectious diseases section of the Royal Perth Hospital. He had severe effects from the poliomyelitis and ultimately after recovering he always required crutches to walk. He returned to work as physician specialising in respiratory medicine. Over the years his condition deteriorated and in the several years prior to his death he was completely housebound. He had to use a wheelchair and had to be lifted out of the wheelchair into his bed.

35 James gave some fairly detailed evidence of his relationship with his father. He claimed that in the early years they had a good relationship and after the deceased moved out of the family home in 1971 he saw his father regularly and often had dinner with him. James and his father had a continuing interest as James also did medicine at the University of New South Wales between 1973 and 1978. During this period they often spent holidays together. James did well at his medical studies and graduated in 1979 with the University Medal and First Class Honours. Plainly the deceased was proud of his son’s achievements.

36 James and his family would spend time with the deceased at Christmas and birthdays other than the time when the deceased was in Perth either to visit his mother or to live with his sister. At the time the deceased became head of the Department of Respiratory Medicine at Prince Henry Hospital at Little Bay in 1985 James wrote a substantial amount of computer software for him to assist in his work. Ultimately the deceased stopped full time work in 1992 because of increasing weakness due to post polio syndrome and he relied upon a motor scooter for mobility at that stage.

37 James and his family lived in London from 1987 to 1990 to further his work. In May 1988 the deceased and Eve came to London to visit James. As I have mentioned in 1996 the deceased then moved to live next to his sister in Perth. At this time there was some difficulty with his relationship with his former wife. In due course she died and a claim was made by Eve on her estate. In May 1997 the deceased decided to return to Sydney and both his children assisted in finding him accommodation.

38 The deceased made some statutory declarations from time to time when he made his wills. For example in his May 2002 will where he left a quarter share to his son, James and in a statutory declaration he referred at length to the help he had been given by his daughter. He said in respect of James:

“In the case of my son, he rarely visits me although his appointment at the Prince of Wales Hospital is not at all far from where I live. I have not had the support from him that I would expect from my only son.”

39 In respect of deceased’s last will made on 8 May 2002 paragraphs 7 and 8 of his statutory declaration were in the following terms:

“7. In making my decision, I have considered the support provided to me in my condition as a severely handicapped person. I am compelled to move in a wheelchair and am not able to walk at all. My days are spent in bed or in my wheelchair. Eve found and set up for me the unit which I have occupied since May 1997. She has provided essential care and support on the occasions when I have suffered injury and increased muscular weakness, particularly after I fractured my femur in February 1998, when she was with me for 5 weeks, and at Easter 2002, when I injured my left knee and she helped me for 9 days. My daughter's support made it possible for me to maintain reasonable autonomy in spite of severe paralysis. The time Eve has given me has been at the expense of her own work and career. In the case of James, he rarely visits me although his appointment at the Prince of Wales Hospital is not at all far from where I live. I have not had the support from him that I would expect from my only son.
8. At the time of signing my Will contemporaneously with signing the Statutory Declaration, I am a patient at the Prince of Wales Hospital at Randwick and although James is the Chief Neurologist at the Hospital he is too busy to see me for more than a few minutes or so. James has shown only indifference to my problems and need and has offered no companionship to me.”

40 As far as the evidence is concerned it is plain that after the deceased returned to Sydney permanently James continued to assist him and he was available whenever the deceased had difficulties such as when he broke his leg in 2000.

41 It is also apparent from James’ evidence that at this latter stage of his life with his new appointments and responsibilities at the hospital and in his private practice that he was under greater pressure as far as time was concerned. There were instances when the deceased would want him to come and he could not help. It is also apparent that as he got older the deceased himself was becoming more critical and difficult to manage in hospital. The deceased somewhat selfishly thought that his son should concentrate on research into matters concerning the deceased’s illness rather than those areas where James’ skills had led his research.

42 The evidence discloses that the deceased did not come to visit James and his family in their last two homes. The first house had extensive stairs which would have prevented the deceased from entering the house. There was an occasion in 1999 when the deceased arrived at the last house unannounced having been driven there by Eve. He had not been invited and it was inappropriate as at the time James and Eve were opposing parties in litigation over their mother’s estate which had recently been completed. James asked his sister to leave which meant that the deceased did not enter the house. According to James, and I accept his evidence on this aspect, he did extend an invitation to his father to visit but because of the difficulties with access he did not come to James’ house.

43 In my view, having regard to the whole of the evidence I think James was a dutiful son to his father. He had less opportunity in the later years to see his father because of his extensive medical commitments. The strain in the relationship probably resulted from the deceased’s insistence on having more time with James than his son could provide. In my view there is nothing in the evidence which would suggest that James’ claim should in any way be diminished as a result of his relationship with his father.

Relationship between Eve Colebatch and her father

44 Eve Colebatch seemed to have a good relationship with her father although there was the stress from the litigation over the estate of the deceased’s former wife. At times Eve helped the deceased when she returned from overseas and in 2003 she gave up her work in Canberra to come to Sydney to look after her father full time. Although the deceased had carers in the last years of his life there was substantial help and assistance from his daughter. They purchased a unit together which they held jointly and each contributed to the deposit equally and repaid the joint mortgage in part prior to the death of the deceased. It was suggested that the deceased may have provided $80,000 as a mortgage repayment for Eve but on the documentary evidence this is not the case. Such repayment was made by Eve.

Discussion

45 It is necessary to see how James Colebatch says he has been left without adequate and proper provision for his maintenance, education and advancement in life. James felt that he had been unjustly left out of the will of the deceased and this was one of the matters which led him to commence proceedings. However, it is only if James has been left without adequate and proper provision that the Court can make an award. The Court is not able to exercise its jurisdiction to resolve hurt feelings or to make what might be described as a “fair” will.

46 James called evidence on the cost of renovations and repairs to his jointly owned home. The evidence contained two parts. The repairs described as necessary and those described as desirable. He also sought a sum to provide a fund for the exigencies of life and a sum to reduce his mortgage.

47 James called evidence from an architect, Joshua Mulders. The evidence of the cost of necessary repairs varied from a low of $142,800 to a high of $222,800. It is plain from the description of the walls that the repairs were necessary and Eve’s expert, Robert Whelan, a building consultant, did not dispute this.

48 The desirable repairs included some security matters involving fencing, the rectification of the lack of storage space, restoring a skylight in the hall and kitchen area, work on the laundry and a final item creating an upper floor addition. The upper floor addition was to accommodate an extra bedroom, study and storage area. The cost of the latter item was between $145,000 and $200,000 and the total range of the desirable items was between $192,000 and $283,000.

49 Although the property had a number of defects when it was purchased James used the funds available to him on purchase to renovate the back garden and repair broken fences. It seems to me that the failure to address some of the current problems could not necessarily have been foreseen and his then actions were not inappropriate.

50 The works described as necessary repairs I think are ones with which James needs assistance in order to carry out the repairs. The desirable ones are simply that and I would not describe them as something which was immediately appropriate to be undertaken.

51 When considering James’ claim it is to be borne in mind that he and his wife own a very substantial and valuable residence. The residence is valued at $2,950,000 subject to a mortgage of $295,967.

52 James receives a reasonable salary as a medical practitioner and he is well provided for in respect of superannuation. However, he does not have substantial cash.

53 Plainly the plaintiff’s claim has to be seen in the context of the size of the estate which is substantial and which has passed to Eve. Eve is single with no dependants and although she is not working it is likely that she will obtain employment in the future. Her net assets, including the distributed estate, are $2,348,061. From that large amount of assets she has a substantial income by way of investment and she has surplus of income over expenditure of some $41,201 per annum.

54 Some modest provision in favour of James would not substantially interfere with Eve’s asset situation. It seems to me that some funds for the provision for the necessary repairs and some buffer would be appropriate. In my view an appropriate legacy is $300,000.

55 The orders which I make are as follows:

1. That the legacy provided for the plaintiff under the will of the deceased is increased to $300,000.
2. The plaintiff’s costs on an ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
3. Interest shall be payable at the rate provided for under the Wills Probate and Administration Act 1898 if the legacy if not paid within one month from today's date.
4. Reserve liberty to apply in respect of the designation of notional estate in the event that the legacy is not paid by the defendant.

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