Dallimore v Peter Robin Dallimore as executor of the will of David De Clifford Dallimore
[2019] WASCA 99
•11 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DALLIMORE -v- PETER ROBIN DALLIMORE as executor of the will of DAVID DE CLIFFORD DALLIMORE [2019] WASCA 99
CORAM: MURPHY JA
MITCHELL JA
PRITCHARD JA
HEARD: 20 MAY 2019
DELIVERED : 11 JULY 2019
FILE NO/S: CACV 69 of 2018
BETWEEN: GLEN MATTHEW DALLIMORE
Appellant
AND
PETER ROBIN DALLIMORE as executor of the will of DAVID DE CLIFFORD DALLIMORE
RICHARD BRECHMAN DE CLIFFORD DALLIMORE as executor of the will of DAVID DE CLIFFORD DALLIMORE
First Respondents
PETER ROBIN DALLIMORE
Second Respondent
RICHARD BRECHMAN DE CLIFFORD DALLIMORE
Third Respondent
MARK DAVID DALLIMORE
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: DALLIMORE -v- PETER ROBIN DALLIMORE as executor of the will of DAVID DE CLIFFORD DALLIMORE [2018] WASC 184
File Number : CIV 2319 of 2016
Catchwords:
Succession law - Application under Family Provision Act 1972 (WA) - Application by grandchild - Where principal beneficiaries of the estate were the testator's surviving children - Competing claims of children and grandchild - Whether master made express errors of law or express errors of mixed law and fact - Turns on its own facts
Legislation:
Family Provision Act 1972 (WA), s 6(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr R Nash |
| First Respondents | : | No appearance |
| Second Respondent | : | Mr A P Hershowitz |
| Third Respondent | : | Mr A P Hershowitz |
| Fourth Respondent | : | No appearance |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| First Respondents | : | No appearance |
| Second Respondent | : | Billington Legal |
| Third Respondent | : | Billington Legal |
| Fourth Respondent | : | No appearance |
Case(s) referred to in decision(s):
Butcher v Craig [2010] WASCA 92
Dallimore v Dallimore as executor of the will of David De Clifford Dallimore [2018] WASC 184
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993)
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kilkenny v Kilkenny [2018] WASCA 197
Kitson v Franks [2001] WASCA 134
Lemon v Mead [2017] WASCA 215
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
JUDGMENT OF THE COURT:
Introduction
This appeal is against the decision of Master Sanderson in Dallimore v Dallimore as executor of the will of David De Clifford Dallimore[1] (primary decision).
[1] Dallimore v Dallimore as executor of the will of David De Clifford Dallimore [2018] WASC 184.
Without intending any disrespect, it is convenient to refer to the parties by their first names.
By the primary decision, the learned master dismissed the appellant's, Glen's, claim for further provision pursuant to s 6(1) of the Family Provision Act 1972 (WA) (Act) from the estate of his late grandfather (the deceased).
Glen is a grandchild of the deceased. The principal beneficiaries of the estate are the second and third respondents (Peter and Richard, respectively) who are the surviving children of the deceased. Peter and Richard, in their personal capacity, are respondents to the appeal. They are not taking part in the appeal in their representative capacity as executors. The fourth respondent, Mark, is also not taking part in the appeal. Mark, who is Glen's brother and a grandchild of the deceased, had originally made a similar claim for provision against the estate, but Mark's claim was discontinued.
Whilst recognising that the matter was 'finely balanced',[2] the master dismissed Glen's claim on the basis that he had not established that adequate provision had not been made out of the deceased's estate for his proper maintenance, support, education and advancement in life.
[2] Primary decision [29].
In this appeal, Glen contends that the master's decision is infected by express errors. For the reasons which follow, the master did not make the express errors alleged, and the appeal should be dismissed.
Background[3]
[3] The background is taken from the master's primary decision, unless otherwise indicated.
The deceased and his late wife (Ethel) had a home in Maylands, Western Australia (the Maylands property). They had three children, Peter, Richard and Royston. Glen and Mark are the children of Royston.[4]
[4] Primary decision [1].
Royston joined the Royal Australian Air Force. His work took him and his family (his wife, Kaye, and his children, Glen and Mark) away from Western Australia. They lived in Queensland and Singapore.[5]
[5] Affidavit of Mark Dallimore dated 28 July 2016, par 22; GB 51.
On 11 April 1979, Royston died. Glen was then about 7 years old.[6] Kaye was left a single mother and the sole financial provider for Mark and Glen. Kaye maintained full-time employment and had a small military pension.[7]
[6] Primary decision [2].
[7] Primary decision [2].
After Royston's death, Kaye moved to South Australia. Kaye subsequently remarried in 1993.[8]
[8] Agreed amended chronology; WB 60.
Over the 10 or so years following Royston's death, up to 1987 ‑ 1988, Glen and Mark spent most Christmas summer school holidays with the deceased and Ethel at the Maylands property.
Although not living in Western Australia, Glen and Mark maintained contact with their grandparents as they got older. They would visit occasionally and speak regularly by phone. They exchanged cards and letters.[9]
[9] Primary decision [9].
In about 1994, the deceased made a statement to Mark to the effect that Mark and Glen were to receive Royston's one‑third share of his estate.[10] In 1995, the deceased made a similar statement to Glen (then aged about 23 years).[11]
[10] Agreed amended chronology; WB 60. See also the affidavit of Mark Dallimore dated 28 July 2016, par 33; GB 53.
[11] Agreed amended chronology; WB 60. See also the affidavit of Glen Dallimore dated 28 July 2016, par 29; GB 6.
In 1995, Peter was divorced. He moved into the Maylands property to live with the deceased and Ethel.[12]
[12] Agreed amended chronology; WB 60.
In 1995, the deceased and Ethel visited Adelaide. Ethel had a stroke.[13]
[13] Agreed amended chronology; WB 60.
On 28 April 1998, Ethel died, leaving the deceased a widower.[14]
[14] Primary decision [3].
On 12 June 1999, the deceased made his last will. It was handwritten and made on a standard will form.[15] Peter and Richard were appointed as executors. Under the will, the deceased left:[16]
1.To Mark and Glen, a cash payment of 'up to $10,000' each, to be paid from the deceased's account held with the Anglican Deposit Society of the Anglican Church of Western Australia.
2.To Peter and Richard, the rest and residue of the estate in equal shares, but with a request that they try to preserve and maintain the Maylands property, for as long as possible, subject to their individual circumstances.
[15] Primary decision [3].
[16] Primary decision [4].
In December 2000, Glen commenced a relationship with Angela,[17] and on 25 November 2005, Glen and Angela married.[18] They had two children, Reilly and Ryan.[19]
[17] Agreed amended chronology; WB 60.
[18] Agreed amended chronology; WB 60.
[19] Agreed amended chronology; WB 60.
The last time that Glen saw the deceased in person was in February 2009, when Glen attended the deceased's 90th birthday party.[20] After that, and up to 2011, Glen maintained telephone contact with the deceased.[21]
[20] Agreed amended chronology; WB 60; appellant's written submissions, par 23; WB 14.
[21] Agreed amended chronology; WB 60; appellant's written submissions, par 23; WB 14.
On 13 October 2011, the deceased died.[22] Glen and Mark flew to Perth to attend the deceased's funeral.[23]
[22] Primary decision [3].
[23] Appellant's written submissions, par 24; WB 14.
On 9 February 2016, probate of the will was granted to Peter and Richard.[24]
[24] Primary decision [3].
Glen's evidence as to his financial position
Given the significance which Glen seeks to attach to his evidence in relation to his financial position for the purposes of this appeal (as discussed later), it is convenient to set out the material parts of his evidence in that regard.
Glen swore five affidavits in support of his application. In his first affidavit dated 28 July 2016, he said that he was working full‑time, earning a gross income of $90,000 per annum, and that his estimated annual expenses were $92,460. His estimated expenses included entertainment/hobbies of $4,780, pet registration and vet fees of $2,000, and 'sundry/emergency expenses' of $3,000.
Glen also said in that affidavit:[25]
[25] Affidavit of Glen Dallimore dated 28 July 2016, pars 39 - 40, 46; GB 8 - 10.
39.At present, I am working for the Australian Shipbuilding Corporation. I will be made redundant in the next five months, once the frigate I am working on has been completed. I have been advised that further shipbuilding activities scheduled for Adelaide will not commence until 2020 at the very earliest. I am unsure if I will be able to find alternate employment in the meantime.
40.My work requires a great deal of heavy work, in what can be very arduous conditions, and my competency to continue with this work in the future is somewhat limited. To date I have had an operation to repair a hernia in my groin, suffered several injuries to my knees and back, with a permanently damaged vertebrae below my skull. I will have to assess my ability to continue in this trade as time goes on.
…
46… My claim against [the deceased's] estate is based on the following factors:
…
(f)I am going to be made redundant shortly. I have two dependent children to support.
(g)Given my age and the physical strains of my current trade, I am not sure how long I will be able to continue in this role. Given my age and limited qualifications, it will be difficult for me to retrain.
In a later affidavit, dated 21 October 2016, Glen said that as at the date of the deceased's death on 13 October 2011, his income was $84,800 per annum and his annual expenses (including providing for Angela, Ryan and Reilly) were estimated to have been $89,363. His estimated annual expenditure as at 13 October 2011 included the same figures for entertainment/hobbies, pet registration and vet fees, and 'sundry/emergency expenses' as those that had been given in respect of his financial position as at 28 July 2016 (see [23] above). He also said, in effect, that he had total net assets of $246,500 as at the date of the deceased's death.[26]
[26] Affidavit of Glen Dallimore dated 21 October 2016, pars 2, 5 - 6; GB 17 - 18.
In a further affidavit dated 15 March 2017, Glen deposed that (1) he was endorsed as an Australian Labor Party candidate for the seat of Mayo in the 2016 Federal election, (2) he voluntarily resigned from his position with the Australian Shipbuilding Corporation, (3) he was able to return to work with the Australian Shipbuilding Corporation following the 2016 election, as he did not get elected, and (4) he was paid $6,000 by the Australian Labor Party to assist with living expenses during the five weeks of the campaign.[27]
[27] Affidavit of Glen Dallimore dated 15 March 2017, par 5; GB 21 - 22.
In that affidavit of 15 March 2017, Glen also said that he was in the process of separating from Angela, and said that the 'agreed pool of matrimonial assets', for the purposes of the family law proceedings, showed that he had net assets of $206,673.50. He also said that he is still currently employed by the Australian Shipbuilding Corporation 'although the position remains uncertain and I have been advised by senior staff members that it is likely that I will be made redundant'. He also said that on 5 January 2017, the Australian Shipbuilding Corporation publicly announced that it would shed 45 trade positions and 85 contract workers by the end of February 2017, and that the chief executive officer of the corporation had advised the Senate Estimates Committee of a further 400 redundancies by the end of 2017.[28]
[28] Affidavit of Glen Dallimore dated 15 March 2017, pars 8 - 10; GB 22 - 23; 25.
In his final affidavit sworn 21 September 2017, Glen said that following orders made in the Family Court, his 'financial position is adjusted' so as to give him a net asset position of $172,015. He also referred to paying Angela $100 per week for child support, and to his payments to meet the children's school fees and their educational expenses.[29]
[29] Affidavit of Glen Dallimore dated 21 September 2017, pars 5, 9; GB 32 - 33.
In oral evidence on 12 March 2018, Glen said that he had not been made redundant. He said that he was on unpaid leave with the Australian Shipbuilding Corporation to contest, for the Australian Labor Party, a safe Liberal seat in the State parliament.[30] He also said that whilst he had been a pipe fitter in the shipbuilding industry until recently, he was now a mechanical fitter, and had previous experience in that regard when working for Holden.[31] He also accepted in cross‑examination, in effect, that he was a senior member of the union and had been involved in giving evidence to a Senate Estimates Committee into shipbuilding and economic issues.[32]
[30] ts 37 - 38.
[31] ts 37, 41.
[32] ts 70.
In oral evidence, he also said that his mother, Kaye, had funded the shortfall in his living expenses.[33]
[33] ts 65, 71 - 72.
The master's reasons
The master found that given the expenses which have accrued to the estate, it was unlikely that Mark or Glen would receive anything from the estate.[34]
[34] Primary decision [5].
The master said that properly considered, Glen's case was that the deceased's will did not make adequate provision for his advancement in life, and there was no question of his being maintained or supported by the deceased, nor any suggestion that he would undertake further education.[35]
[35] Primary decision [21].
In order to determine whether or not the deceased failed to make adequate provision for Glen's advancement in life, the master said that it was necessary to consider (1) Glen's financial position, (2) the size and nature of the deceased's estate, (3) the totality of the relationship between Glen and the deceased, and (4) the relationship between the deceased and other persons who have legitimate claims on his bounty.[36]
[36] Primary decision [21].
As to the first of those matters, the master found that at the time of the deceased's death, Glen was almost 40 years old; was married to Angela with two young infant children; was working full-time as a pipe fitter for the Australian Shipbuilding Corporation[37] earning a gross pre-tax income of about $84,800 per annum; had with Angela a combined net asset position of $246,500; had with Angela annual expenses of approximately $89,363 (including tax); and had with Angela a mortgage liability of $198,000 over the family home worth $370,000.[38]
[37] Appellant's written submissions, par 31; WB 15.
[38] Primary decision [11].
Glen's work as a pipe fitter was physically arduous. He had undergone a hernia repair operation, and had suffered several knee and back injuries, and a permanently damaged vertebrae below his skull. His future employment as a pipe fitter was uncertain. Nevertheless, he was working full‑time, and at 40 years of age was young enough to reasonably expect to maintain his position in the workforce for years to come.[39]
[39] Primary decision [12] - [13].
As to the second matter referred to in [33] above, the master found that apart from some cash of approximately $59,000, the principal asset was the Maylands property, valued at around $1.2 million at the deceased's date of death and at $1.35 million at trial.[40]
[40] Primary decision [6] - [7].
As to the third matter referred to in [33] above, the master described the position as follows:[41]
Glen was born on 28 October 1972 and at the date of the deceased's death on 13 October 2011, he was almost 40 years of age … It is clear Glen had a loving relationship with the deceased during his lifetime. Neither Glen nor Mark have ever lived in Western Australia - they have lived abroad or interstate. During their childhood, their grandparents would fly to visit the boys from time to time. After their father died, Kaye would make arrangements for them to visit their grandparents during school holidays.
Glen and Mark both maintained contact with their grandparents as they got older. They would visit occasionally and speak regularly by phone. They exchanged cards and letters. After Glen and Mark had families of their own and were working full time, it became more and more difficult to maintain the same level of contact as they had done previously. It is Glen's evidence that he maintained a close relationship with his grandparents both in his childhood and into adulthood. I accept this to be the case. Given that his grandparents lived in Western Australia and Glen lived in South Australia, the physical contact was necessarily limited but, geographical limitations aside, the relationship was undoubtedly close and warm on both sides.
Mark deposes in his affidavit dated 28 July 2016 that both his grandparents had at various times expressed their intention to leave Mark and Glen a 1/3 share of their estate because they had not been in a position to provide financial support to them after their father died. Glen confirms these promises. I will have more to say on the use to be made of this evidence later in these reasons.
[41] Primary decision [8] - [10].
As to the fourth matter referred to in [33] above, the master said:[42]
Turning then to the position of the beneficiaries under the will, Richard is 75 years of age and is a widower. He lives in Neutral Bay, New South Wales. His apartment has views of Sydney Harbour and the Harbour Bridge. As at 29 May 2017, he estimated the value at $700,000. There is no mortgage. He has superannuation of $165,660 and just over $11,000 in shares. He has a car of nominal value and savings of around $48,000.
When listing his liabilities, Richard estimated the cost of building renovations at $60,000 and the cost of refurbishing his unit at $80,000. During Richard's cross examination, there was some discussion about these figures. At present they are estimates and while there is no certainty Richard will have to incur these costs, it seems more likely than not. Of course were he to incur those costs, it could be inferred that his apartment would increase substantially in value. It was submitted on behalf of Glen that Richard was quite comfortably placed. I would accept that submission.
Peter is 65 years of age and is single. He has lived in the deceased's property at Maylands since 1995. He has had the benefit of sole residency of the property since the deceased's death in October 2011. He has not paid any rent to the estate and he has not been asked to do so. He therefore has the benefit of rent free accommodation now and it would seem into the future. According to his affidavit sworn on 6 April 2017, he has net income of $55,640. He puts his annual expenses at $27,133 meaning he lives within his means. He has superannuation of $62,774 and cash at bank of $239,348. His only liability is a nominal credit card debt meaning his net assets are approximately $301,352. As is the case with Richard, he is comfortably placed. Of course both brothers will have their asset position considerably enhanced if and when the Maylands property is sold and the proceeds are divided between them.
[42] Primary decision [16] - [18].
The master referred to the parties' respective contentions at trial. He said that Glen's position was as follows:[43]
It is Glen's position that as at the death of the deceased, he was struggling. He had two young children and a wife who was a full-time carer for those children and not contributing to the family income. His assets were modest and his future in employment uncertain. That can be contrasted with the position of Peter and Richard. While not wealthy men, both were comfortably placed. Peter had for many years enjoyed rent free accommodation which had presumably contributed to his financial position. Neither had needs which required that provision be made for them from the estate.
The evidence makes it plain there was a close and loving relationship between Peter and Richard and the deceased. Necessarily, it was a relationship different in nature to the relationship Glen enjoyed with his grandfather. Peter and Richard were sons of the deceased. Peter actually lived with him and provided care and attention but as I have indicated, there is nothing to suggest Glen did not enjoy a good relationship with his grandfather and certainly no suggestion was made there had been any disentitling conduct on his part.
Counsel for Glen submitted the evidence established that a just and wise testator taking into account the position of Glen, and contrasting that with the position of Peter and Richard, would have made some provision in his will beyond giving the executors discretion to pay $10,000 to his grandson. Of prime importance was the relatively precarious financial position Glen was in as at the date of death of the deceased. Counsel submitted this factor was decisive in the finding that greater provision ought be made out of the estate.
[43] Primary decision [24] - [26].
In relation to the position of Peter and Richard, the master said:[44]
The position of the defendants can be summarised in this way. They say Glen is an adult who has made his own way in the world. While he had a good relationship with his grandfather that does not in and of itself require the deceased to make provision for Glen in his estate. Rather, Glen has forged his own life; he has a family and he is making his own way. While he is to some extent, struggling, that is the position with many families. As to his employment, while it may be to some extent uncertain, it is by no means at odds with work practices in this day and age. He has a trade, he is experienced and it is reasonable to assume his employment prospects will always be sound.
[44] Primary decision [28].
The master also said of the statements of intent made by the deceased and Ethel in 1994 and 1995 to provide for Mark and Glen:[45]
Before determining this application there is one matter about which I should make comment, that is the indication from the deceased and his wife that provision would be made for Mark and Glen out of the estate. In my view, such a statement of intent, while it may be relevant in determining the nature of the relationship between the parties, is of no consequence in the eventual outcome of this application. The deceased made his will some 12 years before he died. At that time, Glen was 28 and was not seeing his grandfather on a regular basis. Statements made earlier about intention cannot reasonably have any impact given the passage of time.
[45] Primary decision [27].
The master concluded:[46]
The matter is finely balanced. In the end I am not satisfied that Glen's claim should succeed. Essentially, I have reached that conclusion for the reasons outlined by counsel for the defendants. Glen is an adult and he has forged his own way. There is nothing in the relationship between Glen and the deceased which gives rise to any moral obligation on the part of the deceased to provide for Glen. Put another way, community expectations would not see the deceased as having some obligation to provide for Glen.
[46] Primary decision [29].
The master accordingly dismissed Glen's claim, but went on to make a provisional assessment of adequate provision in the event that he were wrong on the 'jurisdictional' issue.[47]
[47] Primary decision [32] - [34].
Grounds of appeal and submissions
Glen relies upon four grounds of appeal.
Ground 1
Ground 1 alleges that the master erred in law in relation to the jurisdictional stage of s 6(1) of the Act in that he:
(a)failed to make adequately, if at all, an evaluation of whether the disposition of the deceased's estate was not such as to make adequate provision of the proper maintenance, etc, of Glen, in that he failed to evaluate what if any provision had been made for Glen on the one hand, and Glen's 'needs' that could not be met from his own resources, on the other;[48] and
(b)determined the jurisdictional question primarily by reference to his conclusion that nothing in the relationship between Glen and the deceased gave rise to any moral obligation to make provision, whereas that was just one factor to be considered.
Ground 1 - Glen's submissions
[48] See appellant's written submissions, par 53; WB 22.
In support of ground 1, Glen relies, in particular, on the observations of Buss JA (as his Honour then was) in Devereaux‑Warnes v Hall [No 3][49] concerning a claimant's 'needs':
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6 ‑ 11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47].
Often 'need', in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a 'moral claim', in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co‑exist. Sometimes there may be a strong 'moral claim' but no 'need'. Sometimes the 'moral claim' may be slight but the 'need' dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without 'adequate' provision for his or her 'proper' maintenance etc. See Re Sinnott [1948] VLR 279 per Fullagar J at 281.
[49] Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [84] ‑ [85].
Glen also refers, in his oral submissions,[50] to the observations of Buss P in Lemon v Mead[51] to the effect that in determining the question which arises at the jurisdictional stage, the court must look to what is necessary or appropriate prospectively from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen, and that advantage may be taken of hindsight if the subsequent occurrences are within the range of reasonable foresight.
[50] Appeal ts 21.
[51] Lemon v Mead [2017] WASCA 215 [55].
Glen contends, in effect, that in determining the jurisdictional question, the master at [29] of the primary decision 'has subjugated and devalued the primacy of the assessment of [Glen's] needs' (emphasis added). He submits that the master erred because:
1.He 'placed decisive emphasis' on his assessment of whether there was any moral obligation on the part of the deceased to make provision for Glen, and his 'unexplained view of what the community's expectations would be in this case'.[52]
2.His reference to the absence of a moral obligation was made in the context of his assessment of the totality of the relationship. An assessment of the totality of the relationship is 'just one of the factors to be considered in assessing what level of provision was required to make adequate provision from the deceased's estate for [Glen's] proper maintenance etc'.[53]
[52] Appellant's written submissions, pars 50 - 51; WB 21 - 22.
[53] Appellant's written submissions, par 52; WB 22.
Glen submits that the master ought to have had as his 'primary consideration' Glen's level of need, by evaluating what if any provision had been made for Glen by the deceased's will on one hand and Glen's 'needs' that could not be met from his own resources on the other.[54]
[54] Appellant's written submissions, par 53; WB 22.
Glen submits that the master apparently discounted or devalued the significance of the assessment of Glen's needs,[55] by his comment that 'while [Glen] is, to some extent, struggling, that is the position with many families'.[56]
[55] Appellant's written submissions, par 54; WB 22.
[56] Primary decision [28].
In this context, Glen submits that the master failed to give proper or adequate consideration to the following matters as at the date of the deceased's death, which, Glen contends, were findings of fact:[57]
1.Glen and his family were not able to live within their means (in that their expenses exceeded their income).
2.Glen was the sole breadwinner for his family.
3.Glen and Angela had two very young children for whom Angela was the full-time carer.
4.Glen's family's financial circumstances were modest.
5.Glen and Angela had a substantial mortgage debt over the family home.
6.Glen's security of employment in his vocation as a pipe fitter was in doubt given his injuries and the physically arduous nature of that work.
[57] Appellant's written submissions, par 55; WB 22 - 23.
In relation to his 'needs', Glen emphasised his evidence referred to in [25] above, and the master's findings at [34] above, which he said, in effect, showed that his estimated annual expenses exceeded his annual income as at the date of the deceased's death by approximately $4,500.
Glen also referred to the observations of Callinan and Heydon JJ in Vigolo v Bostin:[58]
[P]rovision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education. Significantly, and not inappropriately, one of the forms in which the appellant sought to put his case here was as a claim for advancement. That the idea of a 'moral claim' may have been introduced as an aid to judicial deliberation before it was enacted that claims could be made upon intestate estates, does not, in our opinion render it less relevant or useful now that such claims may be made. In principle, there is no reason why effect should not be given to a moral claim upon the estate of an intestate estate in the same way as it would have been, had the deceased left a duly attested will. (emphasis added)
Ground 2
[58] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [115].
Ground 2 alleges that the master erred in law in relation to the jurisdictional stage of s 6(1) of the Act in that he concluded that:
(a)the deceased did not have any moral obligation to Glen to make provision for him; and
(b)community expectations would not see the deceased to have an obligation to make provision for Glen,
when those conclusions were contrary to the master's findings of fact that:
(i)Glen, Mark and the deceased had a close and loving relationship following the death of Royston when Glen and Mark were still young;
(ii)Glen had continued to have a loving and caring relationship with the deceased up to the date of his death; and
(iii)at various times during their lifetimes, the deceased and Ethel had made statements to Glen and Mark of their intent to leave Glen and Mark a one third share of their estate, because they had not been able to provide financial support to them after Royston's death.
Ground 2 - Glen's submissions
Glen submits that the master overlooked facts relevant to the totality of the relationship between Glen and the deceased, in particular, the matters referred to in pars (i) ‑ (iii) of the preceding paragraph. Glen submits that although the strength of the moral obligation or moral claim is 'a matter of discretionary assessment', the master's finding that 'there was nothing about the relationship which gave rise to any moral obligation' at [29] of the primary decision reveals error because 'it suggests that the master considered those factors were altogether irrelevant to the assessment of the totality of the relationship'.[59]
[59] Appellant's written submissions, pars 57 - 58; WB 23 - 24.
In relation to community expectations, Glen submits that:
1.The master 'does not explain why the making of provision for a struggling adult grandchild … would not be in line with community expectations, especially where the grandchild's parent had predeceased the testator when the grandchild was still young and as a consequence had developed, from a young age, a particularly close and important bond with his paternal grandparents'.[60]
2.It 'seems very unlikely that had [Glen] been the child, rather than the grandchild, of the deceased, his claim would have been dismissed … on the basis that there was no moral obligation' because, in effect, 'there was clearly a close and loving relationship between [Glen and the deceased] and [Glen] had a level of need, which … was demonstrably greater than [Peter and Richard]'.[61]
3.It is 'quite common for testators to leave their estates equally between their children and, in the event of a child predeceasing the testator … then per stirpes to the children of that child'.[62] This view is reflected by s 14(2b) of the Administration Act 1903 (WA) and s 7(1)(d)(ii) of the Act.[63]
Ground 3
[60] Appellant's written submissions, par 59; WB 24 - 25.
[61] Appellant's written submissions, par 60; WB 25.
[62] Appellant's written submissions, par 61; WB 25.
[63] Appellant's written submissions, par 61; WB 25.
Ground 3 alleges that the master erred in mixed law and fact in relation to the jurisdictional stage of s 6(1) of the Act in that he concluded that because Glen had a trade and was experienced, it was reasonable to assume that his employment prospects would always be sound. It is alleged that the master's finding in that regard was inconsistent with the master's finding that there was significant doubt as to his capacity to continue in his physically arduous trade as a mechanical pipe fitter given:
(a)that Glen had undergone a hernia repair operation, had suffered several knee and back injuries, and had suffered a permanently damaged vertebrae below his skull; and
(b)Glen's age, injuries, and the physical strain of his trade.
Ground 3 - Glen's submissions
Glen submits that if the master had concluded that Glen's security of employment was in doubt by reason of the physically arduous nature of the work and his physical injuries, then 'it would have been extremely difficult to maintain a finding … that the deceased by his Will had made adequate provision for him'.[64]
[64] Appellant's written submissions, par 63; WB 25 - 26.
Glen also submits that the master's conclusion was inconsistent with (1) the evidence at trial, and (2) the master's primary finding of fact at [12] of the primary decision, that Glen was the sole financial provider for his family, working in the physically arduous occupation of pipe fitter, and there were doubts about his capacity to continue given that he had undergone a hernia repair operation, suffered several knee and back injuries and had a permanently damaged vertebrae below his skull.[65]
Ground 4
[65] Appellant's written submissions, par 64; WB 26 citing the affidavit of Glen Dallimore dated 28 July 2016, par 40; GB 8; ts 37.
Ground 4 alleges, in effect, that the master erred in law in relation to the jurisdictional stage of s 6(1) of the Act in that he disregarded the deceased's expressions of intent (referred to in [13] above) as being of no consequence. It is alleged that the master should have found that they were relevant to the assessment of the totality of the relationship, and consequently to the assessment of the strength of Glen's moral claim for provision.
Ground 4 - Glen's submissions
Glen submits that the master should have seen that the statements of intent:
1.Indicated the deceased's and Ethel's view 'as to the significance of their relationship and their regret at not being able to have done more for them when they were young after their father had died'.[66]
2.Reflected an acknowledgment by the deceased and Ethel that they 'felt they owed a moral duty to [Glen and Mark] to make up for the fact that they had not been able to provide more assistance to them … and felt the need to communicate that view to them'.[67]
3.Reflected a 'special view held by the deceased [and Ethel] as to their relationship with [Glen and Mark] which went beyond the usual grandparent-[grand]child relationship'.[68]
Peter's and Richard's submissions
[66] Appellant's written submissions, par 67; WB 27.
[67] Appellant's written submissions, par 68; WB 27.
[68] Appellant's written submissions, par 69; WB 27
It is unnecessary to set out in detail the submissions of Peter and Richard. They effectively contended that the master was correct for the reasons he gave. Peter and Richard also summarised their response to Glen's appeal as follows:
1.In finding that Glen did not satisfy the jurisdictional question, the master correctly had regard to Glen's financial position, his need and moral claim to provision from the estate, the need and moral claims of other persons who have a claim to the estate, and the size and nature of the estate at the date of death.[69]
2.This is not a case where the deceased had come to assume, for some significant time in Glen's life, a position more akin to that of a parent.[70]
3.Glen approached his claim on the basis that he should stand in the shoes of Royston, which approach has been rejected by this court in assessing claims by adult grandchildren.[71]
4.Glen is not a young grandchild left without means, but is an adult grandchild with good training and experience, full time employment, and a stable career. He owns his own home, has modest assets and modest liabilities and some superannuation.[72]
5.The master's assessment of Glen's ability to continue working and his employment prospects was consistent with the material facts that existed at the date of death, whether the deceased knew them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew of those facts.[73]
6.The deceased's statements of intent were not treated as being 'of no consequence', but rather as part of the master's 'exercise of a value judgment as being of no consequence in the final evaluation of the threshold question, having regard to all other relevant considerations'.[74]
[69] Respondent's written submissions, par 13(b); WB 43.
[70] Respondent's written submissions, par 13(c); WB 42 - 43.
[71] Respondent's written submissions, par 13(d); WB 43 citing Kitson v Franks [2001] WASCA 134 [66].
[72] Respondent's written submissions, par 13(e); WB 43.
[73] Respondent's written submissions, par 13(f); WB 43.
[74] Respondent's written submissions, par 13(g); WB 43 - 44.
Peter and Richard also submitted that the high water mark of the evidence of Glen's diminished work capacity is that 'I will have to assess my ability to continue in this trade as time goes on',[75] and there is no medical evidence to support a finding that the hernia repair operation or other injuries to the knees and back would preclude Glen from employment as a pipe fitter or in some other capacity.[76]
[75] Respondent's written submissions, par 46.6; WB 52 citing the affidavit of Glen Dallimore filed 28 July 2016, par 40; GB 8.
[76] Respondent's written submissions, par 46.7; WB 52.
As to Glen's capacity for work and employment prospects, Peter and Richard submitted that:[77]
1.Glen is an experienced mechanical fitter who has worked full‑time in the past six years in the shipbuilding industry and had worked as a Holden autoworker.[78]
2.Glen has worked full time since completing his training (other than for two short periods when he stood for the Federal election in 2016 and the State election in March 2018).[79]
3.Glen is a competent and highly regarded individual; he was nominated by the Australian Labor Party to stand in the Federal and State elections, is a member of his Union, and was chosen to give evidence at a Senate Estimates Committee hearing concerning the shipbuilding industry.[80]
4.Glen is ambitious and resourceful. When he ran in the Federal election, he took legal proceedings against his employer, the Australian Shipbuilding Corporation, and negotiated an arrangement which required his employer to re-employ him in the event that his election was unsuccessful.[81]
5.Despite Glen's evidence as at 28 July 2016 that he was to be made redundant within five months, Glen was still working at the Australian Shipbuilding Corporation at the date of trial and adduced no evidence that that would not continue.[82]
[77] Respondent's written submissions, par 46; WB 51 - 52.
[78] Respondent's written submissions, par 46.1; WB 51 citing ts 41.
[79] Respondent's written submissions, par 46.2; WB 51 citing ts 41, 51 - 57.
[80] Respondent's written submissions, par 46.3; WB 51 citing ts 54, 70.
[81] Respondent's written submissions, par 46.4; WB 52 citing ts 54.
[82] Respondent's written submissions, par 46.5; WB 52 citing the affidavit of Glen Dallimore filed 28 July 2016, par 39; GB 8; ts 55 - 56.
Section 6(1) of the Act and principles
Section 6(1) of the Act
Section 6(1) of the Act provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose. (emphasis added)
Principles
The general principles as to the operation and application of s 6 were summarised by Buss JA, with whom Pullin JA agreed, in Devereaux‑Warnes.[83] It is unnecessary to repeat that summary. It is also relevant to note the following observations of Parker J, with whom Kennedy J agreed, in Kitson v Franks,[84] in relation to claims by adult grandchildren:
1.There is no special principle that grandchildren should rank less favourably than the children of the deceased in determining claims under the Act. There is also no special principle that grandchildren should, in effect, 'stand in the shoes' of their parent, the child of the deceased, and rank equally with other children of the deceased. It is s 6 of the Act which determines whether an application should succeed. This section applies the same test to all applicants, including children and grandchildren.[85]
2.As a matter of fact in determining the jurisdictional issue, it may be a relevant factor that an applicant is a grandchild rather than a child of the deceased. Whether that is so, and if so, what that relevance will be, will depend more 'upon the particular circumstances than the actual relationship of grandchild or child'. For example, an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test, whereas an adult child established in a profession may not. On the other hand, an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild.[86]
3.It is not necessary for an adult grandchild to establish that they have a special need or special claim in order to succeed in an application under the Act. The personal circumstances of the applicant are material facts to be weighed in deciding whether an applicant has demonstrated that adequate provision had not been made for them in the will of the deceased.[87]
Appellate review
[83] Devereaux-Warnes [66] - [105].
[84] Kitson v Franks [2001] WASCA 134.
[85] Kitson [66].
[86] Kitson [67].
[87] Kitson [69].
An evaluative decision of the 'jurisdictional' kind[88] required by s 6(1) of the Act is, by its nature, one in respect of which minds may differ on the result. In Singer v Berghouse,[89] Mason CJ, Deane and McHugh JJ said that they agreed with the following comments of Kirby P (as his Honour then was) in Golosky v Golosky:[90]
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and sometimes at least, with a burden of costs upon the estate which should not be encouraged.
[88] Butcher v Craig [2010] WASCA 92 [4].
[89] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
[90] Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993), 13 ‑ 14.
Accordingly, the principles that govern appellate review of discretionary decisions apply to an appeal in which a party alleges error in relation to the jurisdictional question under s 6(1) of the Act.[91] In this context, the failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to undertake the statutory task required by the statute.[92]
[91] Singer (212); Kilkenny v Kilkenny [2018] WASCA 197 [48].
[92] Kilkenny [48].
Disposition
The deceased's will provided for Glen to receive a cash payment of 'up to $10,000' from a specific account. As noted above, the master found that it was unlikely that Glen would receive anything from the deceased's estate. The 'jurisdictional' question which arose before the master was whether, in all the circumstances, a will which made no effective provision for Glen would fail to make adequate provision for Glen's proper maintenance etc. The master, in effect, answered this question in the negative when he concluded that the deceased had no moral obligation to provide for Glen. Glen does not contend that this outcome is unreasonable or plainly unjust, so that error should be inferred from the result.[93] Rather, Glen relies on the express errors set out in his grounds of appeal.
Ground 1
[93] As to which see House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. See also appeal ts 22, 43.
When the primary decision is read fairly and as a whole, the master did not make the express error asserted in ground 1. The master accurately stated the relevant principles, made findings of fact, set out the parties' respective positions, and effectively concluded that Glen had not established that the deceased, by his will, had not made adequate provision from his estate for Glen's advancement in life. The master's reasons were no doubt brief after the recitation of those matters, but it cannot fairly be said that the master really failed to make the evaluative decision required of him under s 6(1) of the Act.[94] The submissions in support of ground 1, and in particular those referred to in [51] above, in substance do no more than raise matters of weighting.
[94] cf [67] - [68] above.
In particular, Glen's submissions about his 'needs' with reference to the observations of Buss JA referred to in [46] above do not disclose an error of law as alleged in ground 1. What is 'adequate' in the context of s 6(1) of the Act must be relative not only to the claimant's needs, but also to their own capacity and resources for meeting them.[95]
[95] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19; Devereaux‑Warnes [80].
It is not correct to say, as Glen, in effect, contended, that the evaluative exercise required of the master miscarried because as at the date of the deceased's death, Glen's 'needs' were unmet because his annual income exceeded his estimated annual expenditure for that year. An assessment of a claimant's needs is not to be approached in a mechanical way by simply focusing on the claimant's cash flow as at the date of the testator's death. While it is true that at the time of the deceased's death, Glen's estimated annual expenditure exceeded his annual income by approximately $4,500, that shortfall itself was not the statutory measure by which the master was required to assess Glen's claim that adequate provision had not been made by the deceased for his advancement in life.
Glen's annual expenditure needed to be viewed in the context of the totality of his financial position and his financial and other resources. The master's assessment was that Glen was an adult, with a trade, who had forged his own way in life. He was experienced, and his employment prospects were sound. He and Angela had about 46% equity in their family home (a mortgage of $198,000 on a home worth $370,000). Whilst he was, to some extent, 'struggling', that was the position of many families in the community. All these matters properly bore on the master's assessment of Glen's claim that the deceased had not made adequate provision for his advancement in life.
Similar observations apply to Glen's submissions as to the security of his employment. Glen's stated concern, in July 2016 (some five years after the deceased's death), that he would be made redundant within five months did not materialise. At the date of the deceased's death, Glen was then only 40 years of age. Even though there were doubts as to his longer term capacity to work as a pipe fitter, he was evidently recognised as having the skills to make a contribution to the broader industrial movement (in the political arena and in representing his union) beyond working in his trade on the factory floor.[96] No error has been shown in the master's assessment that Glen was an experienced individual and that his employment prospects were sound.
[96] See [26], [29] above.
Further, whilst it appears that Glen's financial position deteriorated following his marital separation with Angela, some years after the deceased's death, the master had regard to those matters.[97]
[97] Primary decision [14] - [15].
There is no merit in the contention that the master erred by referring to a 'moral obligation' to provide for Glen. As Buss JA noted in Devereaux‑Warnes,[98] differing views have been expressed as to the utility of the concepts of 'moral duty' or 'moral obligation' in explaining the statutory text. However, as his Honour notes in that discussion, the phrase 'moral duty' has been used:
[A]s a shorthand expression referring to a deceased's 'duty' to make adequate provision for the proper maintenance, etc, of persons within the statutory class, the nature and extent of that 'duty' in any case being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards.
[98] Devereaux-Warnes [86] - [89].
The master has evidently used the term 'moral obligation' in this sense, and did not err in doing so. The master is not referring to a particular factor which is to be taken into account in answering the jurisdictional question, in the manner suggested by ground 1(b). Rather, the master is expressing his overall evaluation of that question in terms of moral obligation.
In summary, Glen has not demonstrated a failure by the master to make a proper evaluation of whether the provision made by the deceased's will was not such as to make adequate provision for the maintenance, etc, of Glen.
Ground 1 should be dismissed.
Ground 2
The master's findings to the effect that Glen and his brother Mark had, in their younger years, a close and loving relationship with the deceased following Royston's death, and that Glen and the deceased thereafter continued to have a loving relationship, were not inconsistent with his finding that there was no demonstrated moral obligation to provide for Glen. Nor is it correct to contend that the master regarded the relationship as 'altogether irrelevant'. The nature of the relationship, on the master's reasons read as a whole, was a factor to be taken into account in the overall assessment of the jurisdictional question under s 6(1) of the Act.
Although the relationship was evidently a good and loving one, Glen had lived his adult life, and his earlier years (save for the Christmas school holidays) apart from the lives of his grandparents. There is no suggestion that his grandparents looked upon him as their own child after Royston's death, or that Glen regarded himself as responsible for caring for his grandparents in their later years.
Also, an assessment of any claim arising from the nature of the relationship fell to be considered in the context of the totality of the circumstances, including Glen's needs and his resources to meet them, as discussed under ground 1 above. It was open to the master to find that when viewed from the perspective of community expectations and moral obligation,[99] Glen had not established that the deceased had not made adequate provision for his advancement in life. Also, Glen's arguments referred to in [56] above are, in substance, complaints going to weight. The master took into account the totality of the relationship between Glen and the deceased, Glen's financial position, the relationship between the deceased and his children, their circumstances and their claims on his bounty, and the size of the estate. Glen has not established that the master's consideration of community expectations in the particular circumstances of this case, signifies an error of law.
[99] And Glen did not contend that these perspectives were irrelevant.
Insofar as ground 2 also relies on the master's treatment of the oral statements of intent in 1994/1995, for the reasons given in relation to ground 4 below, that point does not assist Glen.
Ground 2 should be dismissed.
Ground 3
For the reasons given in [74] above, ground 3 should be dismissed.
Ground 4
Ground 4 fails squarely to engage with the master's reasons. The master stated that the statements of intent may be relevant to an assessment of the nature of the relationship, but he considered that they were of no practical consequence to the outcome in this matter. There is no error in that. The statements were made many years prior to the deceased's death, when Glen was in his early adult years. The statements were made some years prior to the deceased making his will, by which he made specific, limited, provision for Glen and Mark. Glen did not suggest that the statements were promissory in nature or engendered an expectation reasonably held that provision would be made for his advancement in life.[100] Nor is there any suggestion that Glen based his life on the foundation, or that the deceased allowed him to base his life on the foundation, that there would be a substantial inheritance of the kind he claimed.[101] In all the circumstances of this case, the earlier statements provided no sound evidentiary foundation for the conclusion that Glen had established a moral claim for provision.
[100] cf Vigolo [115]; appellant's written submissions, par 69; WB 27.
[101] cf Vigolo [80] - [81].
No error of law as alleged has been established. Ground 4 should be dismissed.
Conclusion
The appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy11 JULY 2019
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