Deborah Anne Meredith v Anthony John Campbell

[2007] NSWSC 682

CITATION:	Deborah Anne Meredith v Anthony John Campbell [2007] NSWSC 682
HEARING DATE(S):	22 February 2007
JUDGMENT DATE :	29 June 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	1. I order that the summons be dismissed ; 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis ; 3. The exhibits may be returned
CATCHWORDS:	Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Only asset of Deceased was her interest as joint tenant with Defendant in their residence. Competing claim of Defendant, who was sole object of testamentary beneficence of Deceased. Contributions by Defendant towards purchase of and repairs and renovations to house property. Notional estate
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Deborah Anne Meredith Anthony John Campbell
FILE NUMBER(S):	SC 2504 OF 2005
COUNSEL:	Mr C. Locke (Plaintiff) Mr. L Ellison SC (Defendant)
SOLICITORS:	Helen Webber (Plaintiff) L Rundle & Co (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 29 June 2007

2504 of 2005 DEBORAH ANNE MEREDITH v ANTHONY JOHN CAMPBELL

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 19 April 2005 Deborah Anne Meredith claims substantively an order that provision be made for her maintenance, education and advancement in life out of the estate or out of the notional estate of her late mother Mary Campbell (to whom I shall refer as “the Deceased”).

3 The Deceased died on 10 July 2004, aged 79.

4 The Deceased left a will dated 4 April 2000. However, in the circumstances which I will shortly outline, no grant of administration has been obtained of that will.

5 By that will (which appears to have been prepared by the Deceased without the benefit of legal advice, and is written upon a printed will form) the Deceased appointed the Plaintiff to be executor. The will then continued,

I Give Devise and Bequeath
To my husband Anthony J Campbell after funeral expences [ sic ] my entire estate land buildings any money in banks or building societys [ sic ].

6 The Deceased had been married twice, firstly to Phillip Patrick Reilly (in about 1947), and subsequently, after the death of Mr Reilly on 12 February 1993, to Anthony John Campbell (who is the Defendant to the present proceedings) on 15 August 1999.

7 The Plaintiff is one of the six children born to the Deceased, of her first marriage. No children were born of the second marriage of the Deceased (who was aged 74 at the time of that marriage).

8 In the mid-1950s the Deceased and her first husband resided in a house property at 29 Collaery Road, Russell Vale (also referred to as Woonona), which they rented from the Housing Commission of New South Wales. In about 1977 they entered into an agreement with the Housing Commission for the purchase of that house property by instalments. Financial assistance was given to the Deceased and her first husband by one of their children, Jerry Reilly (a brother of the Plaintiff), to assist them in making those payments to the Housing Commission. Throughout her first marriage the Deceased was not in employment, but fulfilled the roles of wife and mother. Her husband was the breadwinner of the family, working as an accountant.

9 The Deceased continued to live in the Collaery Road property after the death of her first husband in 1993. Whilst her children had been living at home they had each contributed financially towards the household outgoings and expenses. However, those children had all moved away from home by the time of the death of their father in 1993. Thereafter, the Deceased received some financial assistance from her children towards the cost of repairs and maintenance of the house property and towards the cost of household outgoings.

10 After their marriage in August 1999 the Defendant moved into residence with the Deceased at the Collaery Road property.

11 On about 17 April 2000 the Defendant advanced to the Deceased an amount of about $22,000, with which she discharged the outstanding indebtedness to what had by then become the New South Wales Land and Housing Corporation. The title to the Collaery Road property was thereupon transferred to the Deceased.

12 On 1 November 2000 the Deceased transferred to the Defendant and herself as joint tenants, the title to the Collaery Road property, the consideration being stated therein to be $1. The Deceased and the Defendant continued to live in the Collaery Road property until the death of the Deceased on 10 July 2004.

13 Upon the death of the Deceased the Collaery Road property devolved by survivorship upon the Defendant. It would appear that the Deceased had no other assets at the time of her death apart from her interest as joint tenant in the Collaery Road property. The Plaintiff, as executor named in the last will of the Deceased, did not obtain a grant of probate of that will, since the Deceased’s interest in the Collaery Road property passed to the Defendant by survivorship. However, on 20 July 2006 the Plaintiff obtained a grant of letters of administration of the estate of the Deceased pursuant to section 41A of the Wills, Probate and Administration Act 1898, for the purpose only of enabling her to make an application under the Family Provision Act.

14 In May 2005 the Deceased sold the Collaery Road property for $369,000.

15 An amount of $174,162 (being about half of the net proceeds of sale of the Collaery Road property) has been retained in a controlled money account, pending the outcome of the present proceedings.

16 The Defendant, since the death of the Deceased, has no kinsfolk or other ties in the Wollongong area (in which the Collaery Road property is located). Upon the sale of the Collaery Road property the Defendant removed to Tamworth, a locality in which he had previously resided, and in the vicinity whereof his son and grandchildren presently reside.

17 The Plaintiff was born on 5 November 1965, and is presently aged 41. She lived with her parents on the Collaery Road property until she moved from home in 1983, at the age of 17. She has been married only once, to her present husband Todd Meredith. They have three children, Dylan (who was born on 19 January 1993, and is presently aged 14), Rhys (who was born on 12 February 1995, and is presently aged 12), and Liam (who was born on 27 August 1999, and is presently aged 7).

18 The Plaintiff is currently employed in a permanent part-time capacity as a member service officer by a health fund, Australian Health Management. She has been in that employment since November 2004. She had previously, until early 2004, been employed by Telstra for a period of ten years. It is at the Plaintiff’s choice that she works only 20 hours a week, since she is desirous of accommodating her work schedule to being available for her children before and after school. She expects later to work longer hours, as the children grow older.

19 The Plaintiff placed before the Court a schedule outlining details of the current financial circumstances of herself and her husband. The Plaintiff receives a net salary of $425 a week. Her husband receives wages and workers compensation payments totalling $850 net a week. In addition, the Plaintiff receives from Centrelink a family allowance in a net amount of $74 a week. The total net weekly income of the Plaintiff and her husband is $1349. According to that schedule, the weekly expenditure of the Plaintiff and her husband totals $1044. One of the significant items of that weekly expenditure is a mortgage repayment in an amount of $248.

20 The assets of the Plaintiff and her husband consist of a house property situate at and known as 2 William Street, Bulli, which they own as joint tenants, and to which they ascribe an estimated value of $450,000. The outstanding mortgage debt on that property is $150,000. They own motor vehicles having a total estimated value of $20,000. Their bank accounts have a total credit balance of $300. The only other assets disclosed by the Plaintiff in that schedule are the contents of their residence, various electrical items and shares (having a value of $400). However, that schedule of assets did not include the Plaintiff’s current superannuation entitlements totalling $110,000, or the superannuation entitlements of her husband, totalling $70,000.

21 The Plaintiff and her husband have liabilities, consisting of the outstanding housing loan, secured by mortgage, in a present amount of $150,000; a credit card indebtedness of $700; and a personal loan of $18,100.

22 The Plaintiff’s husband has been working in a permanent full-time capacity since July 2006. However, on account of a back injury which he sustained at work he is currently on restricted duties. Therefore, he is not enabled to work overtime, but he receives workers compensation by way of what is known as “make up pay”. The total amount which he currently receives is no less than the amount he was earning at the time when he was injured.

23 In addition to the various liabilities set forth in her affidavit evidence, it emerged from the Plaintiff’s oral evidence that she has a costs agreement with her solicitor in respect to the costs of the present proceedings. Those costs are estimated to be in the order of $30,000. It was estimated on behalf of the Defendant that his costs of the proceedings, for a one day hearing, total almost $37,000. Of that sum the Defendant has already paid $15,390. The foregoing total amount includes costs assessed at $1353 which are payable by the Plaintiff pursuant to an order of Macready AsJ of 16 June 2006.

24 The claim of the Plaintiff must be approached in the light of any competing claims upon the bounty of the Deceased.

25 The chief competing claim is that of the Defendant, who not only is the widower of the Deceased, but also is the sole object of the testamentary beneficence of the Deceased. The only other persons who might have competing claims upon the bounty of the Deceased are the other five children of the Deceased. (I observe that there does not appear to have been compliance with the provisions of paragraph 9 of Schedule J to the Supreme Court Rules 1970 requiring service of a notice of claim upon eligible persons.)

26 The Defendant was born on 24 August 1926, and is presently aged 80. He is active and is in good health for his years.

27 At the time of his marriage to the Deceased, the Defendant was a widower with two adult children. He was at that time a farmer, although he had previously worked as a trucking contractor. He had been residing in the Tamworth area since about 1990, where he and his son owned a farm at Attunga. From the sale of the farm property (for a sale price of $610,000) the Defendant ultimately received $260,000. It was from that sum (together with the amount of $12,500 from the proceeds of a clearing sale) that the Defendant paid the amount of $22,000 owing in respect to purchase of the Collaery Road property, and made payments for the renovation and refurbishment of the house upon that property.

28 According to the Defendant, at the time of his marriage to the Deceased the house was in a very poor state of repair, the gutters leaked, there were broken roof tiles, the premises were unfenced and in a poorly maintained condition.

29 The Defendant gave detailed evidence of his expenditure upon the house property, by way of substantial repairs and improvements to the house, the development of a garden (the beauty whereof is manifest in various photographs annexed to his affidavit of 10 August 2005). That expenditure totalled almost $60,000. In addition, he purchased an engagement ring costing $6000 for the Deceased, and paid $7500 for an overseas trip for himself and the Deceased. He also purchased a new motor vehicle costing $22,000, which was used for the benefit of the Deceased as well as of himself. The Deceased did not drive, and the Defendant did all the driving for the two of them. After the death of the Deceased the Defendant paid the funeral expenses and the costs of a social occasion thereafter, in a total sum of $6000.

30 It was not disputed by the Plaintiff that the marriage of the Deceased and the Defendant had been a happy and successful one, and that a close and loving relationship obtained between them.

31 At the present time the Defendant is residing with his daughter at Drummoyne. However, it is his desire to acquire a small rural property in the Tamworth area near where his son and grandchildren reside. Since one half of the assets of the estate (representing the net proceeds of sale of the Collaery Road property) is held in a controlled money account, the Defendant has not been able to fulfil his wishes in that regard. Evidence was placed before the Court concerning the availability and price of various small rural properties of the nature which the Defendant is desirous of acquiring in the Tamworth area.

32 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

33 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

34 The Plaintiff, as a daughter of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such she has the standing to bring the present proceedings.

35 It will be appreciated that the Defendant also, as the widower of the Deceased, is an eligible person, being such within paragraph (a) of the foregoing definition.

36 In addition, each of the other five children of the Deceased is an eligible person in relation to the Deceased. However, none of those other children has made a claim upon the estate of the Deceased.

37 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 –210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance.

38 I have already recorded that the total income of the Plaintiff and her husband is $1349 a week. They have a mortgage debt on their house property of $150,000 (which they are paying at the rate of $248 a week), a credit card debt of $700 and indebtedness in respect to a personal loan of $18,100. The Plaintiff and her husband maintain two motor vehicles (to which they attribute an estimated value of $20,000). The Plaintiff stated that her two elder sons will require major orthodontic treatment in coming years, at a total cost of about $10,000, and she also referred to the fact that her second son is under care of a paediatrician for the treatment of Attention Deficit Hyperactivity Disorder, for which he has to take medication of some expense.

39 Much evidence was presented on behalf of the Plaintiff concerning her relationship with the Deceased, which she asserted to be a close and loving relationship, and her regular contact with and performance of services for the Deceased. The nature and extent of that contact was disputed by the Defendant. The Plaintiff placed considerable emphasis upon the fact that she considered that she had been treated unfairly by the testamentary disposition of the Deceased in giving the entirety of the Deceased’s estate to the Defendant and, more significantly, in transferring the title to the Collaery Road property to herself and the Defendant as joint tenants, in circumstances where, according to the Plaintiff, the Deceased had said on a number of occasions words indicating that her three daughters would share that house property equally.

40 It will be appreciated that it is for an applicant for provision to establish her claim upon its own merits. That claim cannot be enhanced by establishing that the chief chosen object of the testamentary beneficence of the testator, had that person been omitted from provision, might not have succeeded in a claim for provision out of the estate of the testator. Here, the only relevance of the financial and material circumstances of the Defendant, who is the sole object of the testamentary beneficence of the Deceased and who by survivorship received the entirety of her assets, is that his competing claim upon the bounty of the Deceased might have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. Yet a very large part of the evidence presented on behalf of the Plaintiff constituted an attempt to prove that the Defendant had no need to acquire a property of the nature which he wishes to purchase.

41 In this regard, it is appropriate that I should set forth the following salutary admonition of Windeyer J, in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case.

42 Further, consonant with the foregoing admonition of Windeyer J, it should be emphasised that an order for provision is not made as a reward for past services or good conduct on the part of an applicant. Neither is an order withheld as punishment for perceived bad conduct on the part of the applicant.

43 The Plaintiff and his wife are presently well able to meet their weekly outgoings. The Plaintiff has not identified with any particularity (or, indeed, at all) any needs upon which she bases her present claim for provision.

44 I am not satisfied that the Plaintiff has established an entitlement to an order for provision for her maintenance out of the estate of the Deceased. That conclusion is of itself sufficient to determine her present claim.

45 However, even if (contrary to the foregoing conclusion) the Plaintiff were otherwise to have established an entitlement to an order for provision out of the estate of the Deceased, that entitlement must be viewed in the light of the competing claim of the Defendant, who is the sole chosen object of the testamentary beneficence of the Deceased.

46 The very significant and substantial financial and material contributions made by the Defendant not only to the physical and material welfare of the Deceased throughout the period of their marriage, but also to the condition of the Collaery Road property, resulting in the very substantial enhancement in the value of that property (her interest in which was the sole asset of the Deceased) were such, that I consider the competing claim of the Defendant would extinguish any provision to which the Plaintiff might otherwise be entitled. The Defendant was entitled to receive from the estate of the Deceased a benefit (recognised by the Deceased herself by the very terms of her will, and by her conduct in transferring the house property into the joint tenancy of herself and the Defendant) which would enable him to maintain an independent lifestyle in a residence owned by him. The competing claim of the Defendant would defeat any entitlement of the Plaintiff which she might otherwise establish for an order for provision out of the estate of the Deceased.

47 That conclusion in regard to the competing claim of the Defendant makes it unnecessary for me to embark upon a detailed consideration of whether or not the provisions of the Family Provision Act relating to notional estate are attracted in the circumstances of this case. Were it necessary for me to do so, however, I would not be disposed to make an order in respect to notional estate which would have the effect of depriving the Defendant of his entitlement to the proceeds of the sale of the Collaery Road property. He was largely responsible for the Deceased becoming the legal owner of that property and for the increase in the value of that property. Without the proceeds of sale the Defendant will not be enabled to spend his declining years in the state of reasonable security and comfort to which I consider him to be entitled.

48 Accordingly, I make the following orders:

1. I order that the summons be dismissed.

2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

3. The exhibits may be returned.

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