Dodge v Blissenden
[2009] TASSC 116
•18 December 2009
[2009] TASSC 116
COURT: SUPREME COURT OF TASMANIA
CITATION: Dodge v Blissenden [2009] TASSC 116
PARTIES: DODGE, Shane Michael
v
BLISSENDEN, Robert
DODGE, Bradley Allen
DODGE, Jenna Maree
DODGE, Scott (by his litigation guardian Brian Maxwell Dodge)
DODGE, Glenn (by his litigation guardian Brian Maxwell Dodge)
FILE NO/S: 647/2008
DELIVERED ON: 18 December 2009
DELIVERED AT: Hobart
HEARING DATE: 9 December 2009
JUDGMENT OF: Blow J
CATCHWORDS:
Succession – Family provision and maintenance – Failure by testator to make sufficient provision for applicant – Whether applicant left with insufficient provision – General principles – Onus of proof – Unreliable evidence – Applicant's full financial position not established.
Aust Dig Succession [309]
REPRESENTATION:
Counsel:
Applicant: K B Procter SC
First Respondent: J Bourke
Other Respondents: B R McTaggart
Solicitors:
Applicant: Murdoch Clarke
First Respondent: Blissenden Lawyers
Other Respondents: Ogilvie Jennings
Judgment Number: [2009] TASSC 116
Number of paragraphs: 32
Serial No 116/2009
File No 647/2008
SHANE MICHAEL DODGE v ROBERT BLISSENDEN,
BRADLEY ALLEN DODGE, JENNA MAREE DODGE,
SCOTT DODGE (by his litigation guardian Brian Maxwell Dodge)
and GLENN DODGE (by his litigation guardian Brian Maxwell Dodge)
REASONS FOR JUDGMENT BLOW J
18 December 2009
This is an application under the Testator's Family Maintenance Act 1912 ("the TFM Act") by a man whose father made a will and left him nothing. The testator, Gordon Allen Dodge, died on 8 May 2008. His last will was dated 22 January 2008. By cl 6 of that will, he explained why he had made no provision for the applicant. That clause reads as follows:
"I have made no provision in this my Will for my son shane michael dodge as I have only re-established contact with him in December 2007 after no contact from him for over eight (8) years and he has advised me that he owns his own business and is financially secure."
At the time of his death, the testator's assets comprised an unencumbered house in Moonah, its contents, a 1997 motor vehicle, and a bank account with $8,379.91 in it. Apart from the funeral bill, the only liabilities were unpaid telephone and electricity accounts totalling $239.75.
By his last will, the testator directed his trustee, the first respondent, to distribute his estate as follows:
· The contents of his home were to go to a nephew.
· The proceeds of sale of his principal place of residence were to be distributed equally among such of his grandchildren Bradley Allen Dodge, Jenna Maree Dodge, Scott Dodge and Glenn Dodge who survived him and attained the age of 18 years.
· The residue was to go to his son David Allen Dodge if he survived him, which he did.
The burden of the testator's debts, and the funeral, testamentary and administrative expenses falls on the residuary estate: Administration and Probate Act 1935, SchII, PtII, Item 2. There will be little or nothing left of the residuary estate after the debts and those expenses are paid.
The testator had three sons and no daughters. All of his sons survived him. Two of the grandchildren named in the will are the children of his son David, the residuary beneficiary. The other two grandchildren named in the will are the children of his son Brian, to whom he left nothing. The applicant does not have any children.
The applicant does not seek to disturb the gift of household contents to the nephew, nor does he seek any provision out of the residuary estate. He contends that he should receive one third of the proceeds of the sale of the Moonah property, with one third going to the children of his brother David, and the other third going to the children of his brother Brian. That is to say, he contends that each of the grandchildren named in the will should receive one sixth of the proceeds of sale of the Moonah property, rather than one quarter.
The four grandchildren, who have been joined as respondents to the application, were represented by counsel at the trial. Their counsel submitted that the applicant should receive nothing from the estate. It was submitted that the applicant's long estrangement from his father had extinguished or substantially reduced any moral claim; that the applicant was in no need of provision from the estate, or at least had not proved that he was in such need; and that the testator's wishes should be respected.
Estrangement
The testator lived in Hobart at all material times. The applicant lived in Hobart until September 2000, when he moved to Queensland. He has lived in Queensland ever since. After moving to Queensland, he did not see or speak to his father until December 2007. In one of his affidavits, he blamed his father for their estrangement. He said that his mother was diagnosed with cancer; that his father withdrew into himself and started drinking more alcohol; that his father would often leave his mother at home alone; and that he spent a lot of time with his mother before she died. I have no evidence as to when she died. The applicant said that he visited Tasmania in December 2004 for Christmas, and went out to see his father, but that his father was not home. He said he tried to phone his father in early 2007, discovered that the number had been changed, asked his brother David for the new number, and did not get it. He said he wrote to his father in December 2007, as a result of which his father telephoned him and gave him his new phone number. They spoke on the phone on occasions after that. There is unchallenged evidence that the applicant travelled to Tasmania and stayed with his father at the end of February 2008, and that he made arrangements for his father to visit Queensland and stay with him later in 2008. That did not occur because his father died.
The applicant's financial position
The applicant works for Bunnings as an independent contractor, doing cleaning, lawn mowing and gardening work at two of their stores to the south of Brisbane. According to his evidence, he lost a contract in early 2009, and his gross receipts dropped from $1,500 per week to $755 per week. He is cohabiting with a female partner. She followed him to Brisbane shortly after he left Tasmania, and they have been together ever since. They share rented accommodation with her brother.
The applicant gave evidence that he does not now have any real estate or shares. According to his evidence, his only significant asset is the proceeds of a payment of $45,369 that he received in October 2009 as a result of a distribution in his mother's estate. His maternal grandfather owned a house when he died. He left half of that house to the applicant's mother, subject to a life tenancy in favour of the applicant's maternal grandmother. The applicant's mother predeceased his maternal grandmother. Following the death of his maternal grandmother, the house was sold. The payment of $45,369 that he received represented his share of his mother's half interest in that house. He also gave evidence that he had a Toyota Hi-lux motor vehicle and some business equipment.
Counsel for the applicant sought to lead oral evidence from him at the trial as to his bank balances. This being an application heard in chambers, the Supreme Court Rules 2000, r458(c), requires the evidence to be given by affidavit, subject to any order to the contrary or any agreement between the parties. There was no agreement between the parties as to the admission of that evidence. I received the evidence provisionally, heard submissions from counsel, and decided not to make an order admitting it.
The applicant gave evidence that he has about $70,000 in a superannuation fund.
The applicant gave some evidence, but not much, about his partner's financial position, as follows. Their relationship commenced in about 1998, about 1½ years after his wife died. The woman was divorced. She had a house at Cremorne in Tasmania. She remained in Tasmania until she had completed 15 years' work for her then employer. She then came up to Queensland at the end of 2000. They have lived together ever since. She works 30 hours per week for Bunnings, and earns about $480 per week after tax. Her only asset is a car.
If the applicant's evidence is true, his financial position has declined remarkably over the last 11 years. His wife died in May 1996. She owned their matrimonial home, which was in Lindisfarne. Her estate also included money in bank and building society accounts, which together with annual leave and long service leave entitlements amounted to over $90,000. She made a will leaving all her estate to her parents, subject to them paying the applicant $10,000. However the applicant received a superannuation payment of $182,506 as a result of her death. The applicant applied to this Court for provision out of his wife's estate under the TFM Act. A settlement was agreed to, and a consent order was made on 2 February 1999. As a result of that settlement, the applicant received the matrimonial home, most of its contents, and $8,173.62 plus interest, but had to pay $40,000 to his wife's parents. The matrimonial home was unencumbered.
In his second affidavit, the applicant said, "On finalisation of my wife's estate including her death benefit the amount I received was approximately $210,000.00." The applicant gave evidence that he sold the matrimonial home for $180,000 about a year after he moved to Queensland. Having regard to the superannuation payment and the terms of the settlement, and making allowance for the applicant's costs of the TFM proceedings, I suspect that he received significantly more than $210,000 altogether. In any event, according to his affidavit, he parted with every cent of the money he received, as follows:
"(i)I purchased a Pajero motor vehicle for the sum of $40,000.00.
(ii)I purchased a boat for $30,000.00.
(iii)I paid my mother back $10,000.00 that she had lent me after my wife died when I was struggling to survive.
(iv)I paid $8,500.00 to purchase shares in horses.
(v)I paid for my mother and my sister-in-law and myself to have a holiday in Queensland for six week [sic] which cost $10,000.00.
(vi)Holidays over the years including time in the year 2000 when I had time off work and travelled up the East Coast of Australia. Also trips to see horses race over the years, more than $40,000.00.
(vii)Horse fees $10,000.00.
(viii)Moneys borrowed by brothers and friends $5,000.00.
(ix)Removal costs from Tasmania to Queensland $5,000.00.
(x)Shared costs for a mare training and agistment for two years $20,000.00.
(xi)The balance [$31,500] was spent on day to day living expenses over the years."
Copies of the applicant's income tax returns for the years 2001 to 2006 inclusive were tendered. His declared annual taxable income over those years varied from $23,484 in 2001 to $27,971 in 2005. He gave evidence that his records in relation to the 2007 tax year had been lost as the result of a flood, and that he had not yet lodged returns for 2008 and 2009. His counsel tendered a memorandum from his accountants which shows that, on the information provided to them, his taxable income was $35,687 for the year ending 30 June 2008, and $31,508 for the year ending 30 June 2009. The accountants also provided brief summaries of the receipts and expenditure of his business for those years. Their figures are consistent with him having lost a contract that provided about half the income of his business in early 2009.
Counsel for the grandchildren made a submission to the effect that the applicant's evidence, to the extent that it was not corroborated, was unreliable and untrustworthy. There are a number of aspects of his evidence that reflect very badly on his credibility:
· In his first affidavit, he said a number of things about the financial consequences of his wife's death that were not true. He said that her parents "contested her estate". The truth was that he contested her will by making an application under the TFM Act. He said, "The house we lived in had to be sold as I could not service the mortgage." That was not true. There was no mortgage. Under cross-examination he admitted that the house was not sold until about a year after he moved to Queensland. In the next sentence of the affidavit he said, "By the time the bills were paid there was no net equity." That was not true. His late wife's debts, funeral, testamentary and administrative expenses were paid from parts of her estate that did not pass to him. He had to pay her parents $40,000, and had to pay his own legal costs, but he received over $190,000 as well as the unencumbered property. He must have known that all these things were untrue. He revealed that by saying, in his second affidavit, that he had received approximately $210,000 from his wife's estate and from her superannuation.
· When cross-examined by counsel for the grandchildren about the sale of his former matrimonial home, the applicant said that he sold it for $180,000, but that $90,000 went to pay off a mortgage to the Commonwealth Bank, and that the amount he received was $85,000. This was the first and only evidence of a mortgage to the Commonwealth Bank. In the TFM proceedings concerning his wife's estate, the applicant swore an affidavit annexing the inventory of assets and liabilities prepared by her executors, two solicitors. That document shows that the property was unencumbered. There was no need for the applicant to mortgage it because he had received a lot of money. He was unable to explain why he mortgaged it. There is every reason to suspect that his evidence about a mortgage to the Commonwealth Bank was not true, and that he knew it was not true.
· The applicant gave evidence that the former matrimonial home was rented for about a year after he moved to Queensland, before he sold it. I have no reason to disbelieve that. In his income tax returns for the years ending 30 June 2001 and 30 June 2002, he did not declare any rental income. This suggests that he was dishonestly understating his taxable income. If there had been a mortgage to the Commonwealth Bank, one would have expected those tax returns to reveal rental income and mortgage interest payments, but they provide no corroboration of his assertion that there was a mortgage.
· In his second affidavit, the applicant said that the amount he received from his wife's estate, including the superannuation, was $210,000. That is inconsistent with the established facts, namely that he received over $190,000 plus the house, and had to pay his wife's parents $40,000. Even if it were true that he received only $85,000 from the proceeds of the sale of the house, that would still have left him with over $235,000.
· When cross-examined about the proceeds of the sale of the house, the applicant asserted, for the first time, that from those proceeds he had had to pay his partner $50,000 that he owed her. If that were true, I think he would have included that payment in the itemised list of payments that he gave in his second affidavit when explaining where the alleged fund of $210,000 had gone. It seems most likely that there was no such payment, and that the applicant dishonestly invented that piece of evidence during his cross-examination in the hope of talking his way out of a difficult situation.
· In item (v) of his itemised list of payments, the applicant asserted, "I paid for my mother and my sister-in-law and myself to have a holiday in Queensland for six week [sic] which cost $10,000.00." That was misleading. The applicant conceded under cross-examination that his mother and sister-in-law participated in the holiday for only 10 days, whereas he participated in it for six weeks.
· The applicant said in his first affidavit that, after re-establishing contact with his father in December 2007, they thereafter spoke two or three times per week. That is inconsistent with some instructions given by his father to his solicitors at the time of making his last will. Those instructions were recorded in notes which form part of the firm's business records and were annexed to an affidavit of the executor. The relevant note reads:
"Shane phoned his dad (Mr Dodge) 1 week before Xmas & on Christmas Day. He also phoned 21/1/08."
Those instructions were taken on 22 January 2008.
· The applicant gave evidence of his weekly income and expenditure in his first affidavit, but omitted to mention that he was living with a partner who was working, and who contributed to rent and household expenditure. He said in that affidavit that he was paying $200 per week for rent, but at the trial his counsel led evidence from him correcting that. He gave evidence that he, his partner and her brother each contribute $200 per week to cover rent and other shared expenses.
· He did not mention in his affidavits that, under the will of his late mother, he would be entitled to one sixth of the proceeds of the sale of his grandmother's home following her death.
· Under cross-examination, the applicant denied that he had said anything to his father, between the re-establishment of contact with him and the making of his will, to the effect that he was financially secure. That is inconsistent with the testator's assertion at the end of cl 6 of the will when he said, "… he has advised me that he owns his own business and is financially secure."
In view of all those matters, and in view of the impression that I formed of the applicant when he was in the witness box, I regard him as an untrustworthy and unreliable witness. I am not prepared to accept his evidence in relation to any controversial matter without independent corroboration. His evidence as to his income seems plausible, but I am not satisfied that his asset position is as poor as he claims it to be, and am not able to make any findings as to what the true position is. It may well be that he has not disposed of assets to the extent that he claims he has. At worst, he has a modest income, rented accommodation, a partner who can and should contribute to the rent and domestic expenses, $45,369 from the sale of his grandmother's home, at least $70,000 in a superannuation fund, a Toyota Hi-lux motor vehicle, and a little business equipment. He is 49 years old and in good health. If he has no other assets, it is because he wasted a very large amount of money that came into his hands following his wife's death, the settlement of the TFM application relating to her estate, and the sale of the former matrimonial home.
The law and its application to the facts
The power to make an order under the TFM Act is conferred by s3(1), which reads as follows:
"(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
This subsection requires the Court to approach a case of this nature in two stages. It is first necessary to consider whether the deceased left the applicant "without adequate provision" for his or her "proper maintenance and support". If so, the Court should then go on to consider what provision should be made from the estate for the applicant. See Singer v Berghouse (1994) 181 CLR 201 at 209 – 210. The Court may then properly make the provision "which a just and wise father would have thought it his moral duty to make … had he been fully aware of all the relevant circumstances": In re Allen (Deceased), Allen v Manchester [1922] NZLR 218 at 220 – 221; Bosch v Perpetual Trustee Co [1938] AC 463 at 479.
The conduct of an applicant can warrant the refusal of an application under the TFM Act, s8(1), which reads as follows:
"(1) The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act."
The question in this case is whether the applicant's estrangement from his father amounts to conduct which extinguishes or substantially reduces his moral claim to provision from the estate.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, the appellant was the son of the testator. The testator had permanently left his wife and the appellant when the appellant was 4 years old. The appellant was 50 years old when the testator died, and had not seen him during the intervening 46 years. His application failed at first instance. The High Court, by majority, dismissed his appeal. However, it appears from the judgment of Dixon CJ — the principal judgment in the case — at 9, that the appeal was dismissed because the appellant was "not in need".
The significance of a long estrangement was considered by McLelland J in Leek v Friedman (Supreme Court of New South Wales, 16 October 1992, Butterworth's Unreported Judgments BC9201547). Speaking of the two applicants in that case, McLelland J said (BC9201547 at 9):
"I do not consider that in either case the entitlement otherwise arising should be regarded as having been totally extinguished by their neglect of the deceased over the last 11 years of her life although the measure of entitlement should certainly be treated as having been reduced by that circumstance."
In Browne v Macaulay [1999] WASC 208, Murray J said, at par19:
"… an estrangement, particularly in later years, of the plaintiff from the deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely."
In Re Buckland, deceased [1966] VR 404 at 413, Adam J said:
"It is now well recognized that in determining the strength of the moral claim of an adult child upon its parent, and correspondingly the measure of proper maintenance to be provided by a testator in all the circumstances, it is proper to take into account the conduct of the claimant towards the testator and their mutual association and the closeness of the bond existing between them."
In Vigolo v Bostin (2004) 221 CLR 191, the majority took the view that it was appropriate to evaluate an applicant's claim by reference to the strength of his or her "moral claim": Gleeson CJ at par25; Callinan and Heydon JJ at par121.
There was a little contact between the applicant and the testator during the last five months of the testator's life. Previously there had been no contact between them for about eight years. Either of them could have initiated contact during that time. Neither of them did. The applicant's efforts to initiate contact were minimal, and were not seriously pursued until December 2007. In those circumstances I do not think I should treat the estrangement as having been caused by excessive drinking on the part of the testator. It was a state of affairs to which both men contributed. The testator was 76 years old when he died. The period of total estrangement began when he was in his late 60s. If I were satisfied that the applicant were very needy, I would regard the estrangement as reducing, but not extinguishing the applicant's moral claim. But I am not satisfied that the applicant is very needy. I therefore regard the estrangement as a factor that weighs significantly against the applicant.
Under the TFM Act, s8A(1), I am entitled to "have regard to the deceased person's reasons, so far as they are ascertainable … for not making any provision" for the applicant, and to accept such evidence of those reasons as I consider sufficient. I accept that, as he said in his will, the testator made no provision for the applicant because he had only re-established contact with him the previous month, after a period of about eight years without any contact, and believed him to be financially secure.
Counsel referred me to a number of cases concerning the principles to be applied when an adult son seeks relief under the TFM Act: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 133 CLR 134; Hunter v Hunter (1987) 8 NSWLR 537; Anderson v Teboneras [1990] VR 527; O'Connor v Tasmanian Trustees Ltd [1995] TASSC 100 at par23; Langford v Cleary (1998) 8 Tas R 52 at 56 – 58; Morse v Morse [2003] TASSC 103. I do not think I need to undertake an analysis of all those authorities. The applicant's age, state of health, lack of special needs, and ability to support himself are all relevant, as are the size of his income, his financial position generally, the size of the estate, and the strength of competing claims. There is no rule that a self-supporting adult with no special needs or disabilities is unable to succeed in TFM proceedings. In this case, there is no evidence to suggest that any of the four grandchildren named in the will have any significant needs or moral claims.
However, because I am unable to make findings as to what the applicant's true financial position is, I am unable to be satisfied that it was so poor that a just and wise father, aware of all the relevant circumstances, would have thought it his moral duty to make any provision for the applicant in his will. The applicant has simply not satisfied me on the balance of probabilities that facts exist warranting a conclusion that the testator left him without adequate provision for his proper maintenance and support.
I therefore dismiss the application.
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