Dallimore v Peter Robin Dallimore as executor of the will of David De Clifford Dallimore - [2018] WASC 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DALLIMORE -v- PETER ROBIN DALLIMORE as executor of the will of DAVID DE CLIFFORD DALLIMORE [2018] WASC 184
CORAM:   MASTER SANDERSON
HEARD:   12-13 MARCH 2018
DELIVERED          :   21 JUNE 2018
FILE NO/S:   CIV 2319 of 2016
BETWEEN:   MARK DAVID DALLIMORE
First Plaintiff

GLEN MATTHEW DALLIMORE
Second Plaintiff

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 Defendants

PETER ROBIN DALLIMORE
Second Defendant

RICHARD BRECHMAN DE CLIFFORD DALLIMORE
Third Defendant

Catchwords:

Family Provision Act - Claim by adult grandson of deceased - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr R J Nash
Second Plaintiff	:	Mr R J Nash
First Defendants	:	Mr N D Billington
Second Defendant	:	Mr A P Hershowitz
Third Defendant	:	Mr A P Hershowitz

Solicitors:

First Plaintiff	:	Robertson Hayles Lawyers
Second Plaintiff	:	Robertson Hayles Lawyers
First Defendants	:	Gibson Lyons
Second Defendant	:	Lynn Hudson Barrister & Solicitor
Third Defendant	:	Lynn Hudson Barrister & Solicitor

Case(s) referred to in decision(s):

Allen v Manchester [1921] GLR 613
Dean v Collins [No 2] [2015] WASCA 151
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235

MASTER SANDERSON:

The first and second plaintiffs are the paternal grandsons of the late David de Clifford Dallimore (deceased). The plaintiffs have both brought claims pursuant to s 6 of the Family Provision Act 1972 (the Act) for further provision out of the estate of the deceased. They have standing to make a claim because their father Royston Dallimore, who was a child of the deceased, predeceased the deceased. At the outset of the trial, the first plaintiff sought leave to discontinue his claim. The defendants had no objection to that course of action but suggested, because it required an order of the court, that be done at the time judgment was entered. That was a sensible suggestion and it is the course I have adopted.
The deceased and his late wife Ethel had three children - the second defendant (Peter), Royston who died on 11 April 1979 and the third defendant (Richard). At the time of his death, Royston was married to Kaye and they had two children. The first plaintiff (Mark) who was 11 years old and the second plaintiff (Glen) who was seven years old. After Royston died Kaye was left a single mother who maintained full‑time employment and, together with the assistance of a small military pension, was the sole financial provider for Mark and Glen.
The deceased's wife Ethel died on 28 April 1998 leaving the deceased a widower. The deceased's last will was a handwritten will made on a standard will form. It was made on 12 June 1999. The deceased died on 13 October 2011. By his will the deceased appointed his surviving sons Peter and Richard as executors. Probate of the will was granted on 9 February 2016.
Under the will, the deceased left Mark and Glen a cash payment of 'up to $10,000' each. This was to be paid from the deceased's account held with the Anglican Deposit Society of the Anglican Church of Western Australia. The rest and residue of the estate was left in equal shares to Richard and Peter with a request that they try to preserve and maintain the property at 49 Kathleen Avenue, Maylands, for as long as possible, subject to their individual circumstances.
The executors' solicitor advised by letter dated 2 November 2015 that it was unclear whether Mark or Glen had any entitlement under the will because of the discretionary nature of the disposition in their favour. Given the expenses which have accrued to the estate, it seems unlikely that either Mark or Glen will receive anything. I put this to counsel for Peter and Richard during the course of the hearing and he agreed it was appropriate to proceed on that basis.
It was agreed between the parties that as at the date of death of the deceased, the value of the Maylands property was approximately $1.2 million.[1] Discussion during the luncheon adjournment at the first day of trial led to the parties agreeing that as at the date of the trial the value of the property was $1.35 million.[2]
[1] ts 21.
[2] ts 70, 80.
A Statement of Assets and Liabilities as at 31 October 2016 attached to the affidavit of the second defendant sworn 7 December 2016,[3] shows the only assets of the estate were the Maylands property and cash on deposit in two bank accounts of approximately $59,000. The cash has been used to make payment of expenses and, for practical purposes, the value of the estate as at the date of trial was the value of the Maylands property.
[3] Exhibit 8.
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. He is now 45 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[4] 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.
[4] Exhibit 6.
At the time of the deceased's death, Glen was working on a full‑time basis earning a gross pre‑tax income of approximately $84,800 per annum. He was married to Angela Dallimore and they had two young infant children - Ryan who was born 5 May 2010 and Reilly who was born 4 April 2008. Glen and Angela's combined net asset position at the date of death of the deceased was $246,500 (inclusive of superannuation). Their annual expenses were approximately $89,363 (including tax); they had a mortgage liability of $198,000 over the family home worth $370,000.
Glen worked as a pipe fitter in Adelaide and was employed by the Australian Shipbuilding Corporation. He was the sole financial provider for his family. The work by its nature was physically arduous and as at the date of death of the deceased, there was doubt as to Glen's capacity to continue in that occupation. He had undergone a hernia repair operation, suffered several knee and back injuries and suffered a permanently damaged vertebrae below his skull. Angela was a full‑time mother caring for the two boys.
It was submitted by counsel for Glen that his client's financial circumstances at the date of death of the deceased were modest. Their spending exceeded their income by $4,500 per annum. They had two very young children to provide for. Glen's future in his employment was uncertain, although it must be accepted that 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.
Regrettably, since the death of the deceased, Glen and Angela have separated. On 22 August 2017, they finalised a property settlement in the Family Court. Reilly and Ryan are now respectively aged 10 years and eight years. Angela remains the primary carer of the children. Reilly has bladder control issues and also psychological issues for which he has been receiving counselling and support from a child psychologist. Glen is now paying his wife $100 per week in child support and meets all the childrens school fees and educational expenses.
Glen's present financial circumstances are set out in his affidavit sworn 21 September 2017.[5] After taking into account the property settlement, Glen owns a residential property valued at $410,000 which has a mortgage of just under $290,000. He has nominal amounts in bank accounts and an aging car which also has nominal value. He has superannuation of just under $50,000. He has a small credit card debt. That gives him a net asset position of $169,959. He has income of $74,000 per year and puts his living expenses at $89,500 per year. The shortfall between expenses and income is made up in part by contributions from his mother.
[5] Exhibit 5.
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,[6] 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.
[6] Exhibit B.
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,[7] 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.
[7] Exhibit C.
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.
The assessment of claims under s 6 was conveniently summarised by Chaney J in Dean v Collins [No 2] [2015] WASCA 151 [24]. His Honour said:
As the passage from Maas v O'Neill cited by the Master notes, in assessing claims under s 6 of the Family Provision Act the court is required to undertake a two‑stage process: see Bondelmonte v Blanckensee [1989] WAR 305, 307 (Malcolm CJ); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 212 - 213 [56] (Gummow & Hayne JJ); Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 - 209 (Mason CJ, Deane & McHugh JJ). The first stage requires the court to determine whether the applicant has been left without adequate provision for his or her proper maintenance, support, education or advancement in life. If the court resolves that issue affirmatively, its discretion to make an order under s 6 of the Family Provision Act is enlivened. The first stage of the process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, support, education or advancement 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: Singer v Berghouse (209 ‑ 210).
Properly considered, this is a case where Glen says the will of the deceased did not make adequate provision for his advancement in life. There is no question of his being maintained or supported by the deceased nor is there any suggestion that he will undertake further education. To determine whether or not the deceased did fail to make adequate provision for Glen's advancement in life, four matters have to be considered. First, Glen's financial position. Second, the size and nature of the deceased's estate. Third, the totality of the relationship between Glen and the deceased. Finally, the relationship between the deceased and other persons who have legitimate claims on his bounty.
A frequently cited statement of basic principle underlying the legislation is that of Salmond J in Allen v Manchester [1921] GLR 613. His Honour said:
The provision which the Court is authorised to make under the Family Protection Act, 1908, Part II., is not limited to a merely eleemosynary provision sufficient to meet the bare necessities of the claimants. The Act is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making adequate provision after his death for the support of his wife and children, having regard to his means and to the means and deserts of the·several claimants and to the relative urgency of the various moral claims on his bounty. The provision which the Court may properly make in default of testamentary provision is that which a wise and just father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. If he has failed to perform this duty, it is the duty of the Court to perform it· for him by making such alterations in his testamentary dispositions as may be adequate, but no more than adequate for that purpose.
…
Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it-in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims. No question arises in such a case as to the general scope and limits of the duty of the testator to make provision for the maintenance of his widow and children, for his duty in the circumstances is merely to do the best that he can and to distribute his available resources with justice between his dependants in proportion to their deserts and necessities. Thus in Allardice v Allardice (12 G.L.R. 753: 29 N.Z.L.R. 959), although the testator's estate was worth about £20,000, he left a widow, six young children, three adult married daughters in poor circumstances, and two adult sons working for their own living. He left the whole of his estate to the widow and her young children. The Court of Appeal ordered £60 a year to be given to one of the adult daughters and £40 a year to each of the others, and made no provision in favour of the adult sons. This, however, is not a decision that the moral duty of a testator towards an adult daughter is limited to the provision of an annuity of £60 or £40 a year. Nor is it a decision that a testator owes no moral duty to an adult son capable of earning his own living. It is merely a decision as to the just and proper method of distributing between the various claimants an income not adequate to meet in full the moral claims of all of them.
The financial circumstances, level of need and moral claim of each of the other beneficiaries is relevant to the assessment and exercise of the court's discretion: see Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235 Pullin JA [24].
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.
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.

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.
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.
Having reached that conclusion, it is unnecessary for me to determine what provision I would have made for Glen had the jurisdictional question been answered in his favour. Nonetheless, for the sake of completeness I will deal briefly with what provision I would have made.
It seems clear if provision had been made for Glen out of the estate, the Maylands property would have to be sold. The deceased in his will expressed the hope that the Maylands property would be retained by Peter and Richard and, based upon their evidence, it was their intention to honour their father's wishes. That provision in the will can have no bearing on the outcome of these proceedings. Clearly the deceased anticipated circumstances where the property would need to be sold. The jurisdiction of the court cannot be limited by statements of intent found in the will.
The issue is what amount would have to be provided for Glen which would be in all the circumstances 'adequate'. In his written submissions, counsel for Glen suggested that as Richard's financial position was significantly better than Peter's position, any provision in favour of Glen would be weighed towards Richard's share of the estate. With respect, that seems to me to be a difficult submission to maintain. What is to be determined is what amount Glen should receive from the estate which is adequate. Adjusting the interests of other parties as between themselves does not seem to me to be appropriate. On that basis I have confined my consideration of Glen's claim to what is adequate in all the circumstances for him.
By affidavit sworn 21 September 2017[8] Glen submitted the mortgage is $289,291 which means that his repayments are approximately $17,000 per annum. His expenses exceed his income by $15,500 per annum. It follows if Glen were awarded an amount of $300,000 from the estate, he could if he wished, extinguish his mortgage and then his expenses and income would roughly align. It is true that does not provide him with any additional funds to top up his superannuation or otherwise improve his position in life. Consideration must be given to the overall value of the estate. Counsel for the executor did make some submissions about the impact of capital gains tax on the estate. Beyond acknowledging there may be a capital gains tax debt if the property is sold which would, of course, reduce the overall value of the estate, it seems to me this issue can be put to one side. It would certainly have the effect of reducing the net value of the estate but to what extent is unclear. Nonetheless, making provision from the estate of more than $300,000 would in my view ignore the entitlement of Peter and Richard to benefit from the deceased's estate.
[8] Exhibit 5.
Glen's claim will be dismissed. I will hear the parties as to the form of orders and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO MASTER SANDERSON
22 JUNE 2018