Donaldson v Lawless
[2013] NSWSC 861
•28 June 2013
Supreme Court
New South Wales
Medium Neutral Citation: Donaldson v Lawless [2013] NSWSC 861 Hearing dates: 17 and 18 June 2013 Decision date: 28 June 2013 Before: Ball J Decision: Summons dismissed
Catchwords: FAMILY PROVISION - claim by adult son by his tutor - applicant suffering from numerous psychological and medical conditions - extension of time pursuant to Succession Act 2006 (NSW) s 58(2) - no issue of principle Legislation Cited: Family Provision Act 1982 (NSW)
Local Government Act 1993 (NSW)
Retirement Villages Act 1999 (NSW)
Succession Act 2006 (NSW)Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Cooper v Dungan (1976) 50 ALJR 539
Gorton v Parks (1989) 17 NSWLR 1
Harrisson v Skinner [2013] NSWSC 736
Oldereid v Chan [2013] NSWSC 434
Re Leonard [1985] 2 NZLR 88 at 92
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191Category: Principal judgment Parties: Alan John Donaldson (Plaintiff)
Lynette Anne Lawless (Defendant)Representation: A L Hill (Plaintiff)
J A Trebeck (Defendant)
Armstrongs Solicitors (Plaintiff)
MRM Lawyers (Defendant)
File Number(s): 2012/113956 Publication restriction: Nil
Judgment
By a summons filed on 11 April 2012 the plaintiff, who I will refer to as Alan, by his tutor, the NSW Trustee and Guardian, seeks a family provision order under s 59 of the Succession Act 2006 (NSW) (the Act) in respect of the estate of his mother, Lorna June Donaldson (the deceased). Alan also seeks an extension of time in which to bring this proceeding under s 58(2) of the Act.
Background facts
By her last will made on 15 October 2003, the deceased appointed Alan and the defendant, her daughter, who I will refer to as Lynette, as her executors. The deceased left her two granddaughters (Alan's children) legacies of $5,000 each and her son-in-law, Mr Lawless (Lynette's husband), $3,000. She left the balance of her estate, which consisted principally of the family home at Fishing Point, to be divided equally between Alan and Lynette.
Alan was born in February 1946. He is 67 years old. Prior to 1992, he worked for the Electricity Commission. He accepted a voluntary redundancy at that time and it appears that he has not worked since. He divorced his wife in 1994, at which time their matrimonial home was sold.
Lynette was born in February 1949. She is 64 years old. For the 32 years prior to September 2007 she worked for the University of Newcastle. She retired in September 2007. Lynette had a very good relationship with her mother. She assisted her mother in various ways. Her father had a major heart attack just before his 60th birthday. He spent 6 months at Westmead hospital, where the deceased had a country visitor's room. During that time, Lynette stayed with her mother in the visitor's room on Friday and Saturday nights to visit her father and to give her mother a break.
The deceased's husband died in November 1987. At about the same time, Lynette separated from her partner of 18 years. From that time, she and her mother began to socialise more. Lynette met her current husband, who I will refer to as Ron, in 1990. The deceased was also close to Ron and she went on a number of holidays with Lynette and him. She stayed with Lynette during the week, while Ron worked in Sydney, and went back home to Fishing Point over the weekends.
Although it appears that the deceased had some misgivings about it, she agreed in 1997 to permit Alan to move back into the family home at Fishing Point. The deceased started staying with Lynette permanently in 1998, after Lynette had undergone heart surgery. Lynette and her mother enjoyed a very close relationship during that time.
In about 2000 or 2001 the deceased was diagnosed with diabetes. In about 2003 or 2004, she was diagnosed with the early stages of dementia. In January 2005, Lynette became concerned that it was no longer practical for her mother to continue to live with her. Lynette and Ron were both still working and at that time they lived in a two storey house. Consequently, Lynette arranged with Alan for the deceased to return to her home at Fishing Point and for Alan to look after her. That arrangement did not work out. As a result, Lynette arranged for the deceased to move into the Anglican Care Village at Booragul, initially in respite care and then at the hostel. In December 2006, the deceased was transferred to Carey Bay Nursing Home, where she remained until her death. During this time, Lynette continued to visit her mother frequently. While she was working, Lynette use to visit her mother every weekend. She bought her clothes, makeup and other personal effects and helped her with her midday meal and, on occasions, took her out. When Lynette retired, she visited her mother on average at least 5 days a week. It is unclear what, if any, contact Alan had with his mother over this period.
The deceased died on 9 June 2010 at the age of 86. Probate of her will was originally granted to Lynette and Alan. However, Alan would not take any steps to move out of the Fishing Point property or arrange for it to be sold. Eventually, Lynette made an application to have the grant of probate to her and Alan revoked and for probate to be granted to her alone. Following a contested hearing, those orders were made by White J on 21 May 2012. On 15 June 2012, White J gave judgment for possession of the property in favour of Lynette and gave her leave to issue a writ of possession after 10 August 2012. His Honour also ordered that Lynette's costs of the proceedings be paid by Alan on an indemnity basis out of his share of the estate.
Alan is currently on the aged pension, which is approximately $766 per fortnight. He has no significant assets of his own, although as at September 2012 he had shares worth approximately $4,100 and an amount of approximately $8,200 deposited with the Newcastle Permanent Building Society.
Alan suffers from a number of medical conditions. In a report dated 28 May 2013, Dr Connors, Alan's general practitioner, describes Alan's conditions as including the following:
Depression, sleep disorder, personality disorder, obsessive compulsive disorder, anxiety, diabetes, hypertension, hyperlipidaemia, bilateral knee degenerative conditions with probable right meniscal tear, lumbar degenerative disease, bilateral ankle degenerative disease and episcleritis which is an eye condition. He is a massive hoarder and I feel his obsessive compulsive disorder contributes largely to this.
The sleep disorder means that Alan sleeps for a large part of the day, rises mid-afternoon and is awake during the night. His personality disorder and anxiety is manifested in agoraphobia, which makes it difficult for him to deal with the outside world. Commenting on his hoarding, Dr Connors expressed the following opinion:
As far as his psychological state is concerned he has been a hoarder all his life and at this stage it would be impossible to change this aspect of his psychological makeup. It would entail intensive psychotherapy and cognitive behaviour therapy, all of which Alan would be incapable of exercising.
In an earlier report dated 28 May 2012, Dr Connors expressed the following opinion concerning Alan's physical illnesses:
I feel that his poor control of his diabetes along with his hypertension and past smoking history makes him extremely high risk for cardiovascular events as well as cerebrovascular events. In other words he is a very high risk for heart attack or stroke.
There is an issue concerning the seriousness of Alan's obsessive compulsive disorder, which, for reasons that will become apparent, took on some significance in the case. Mr Trebeck, who appeared for Lynette, submitted that the evidence did not support the conclusion that it was a major problem confronting Alan. He pointed out that earlier reports of Dr Connors had only made passing reference to it, that references to it in Dr Connors' report dated 28 May 2013 had been prompted by leading questions asked of him by Alan's solicitors and that the evidence was that Alan's hoarding had not started until after his mother's death.
There is some force in Mr Trebeck's criticism of the instructions that were given to Dr Connors which led to his report dated 28 May 2013 and the report itself incorrectly states that Alan has been a hoarder all his life. However, in my opinion, it is clear from the state of the Fishing Point property at the time that Lynette obtained possession of it that, whatever the position was earlier, Alan now suffers from a serious hoarding problem. Lynette took photographs of the property at the time she obtained possession. Those photographs demonstrate that the property was in a very poor state. The garden was over grown and littered with rubbish. The interior of the house was a mess. It was full of piles of things that Alan had collected, including a large number of boxes and containers, which made it difficult to move about. Lynette gives evidence of the extensive efforts and considerable expense that she and Ron had to go to to remove Alan's possessions and make the property ready for sale. Following a complaint from neighbours, the local council served on 1 May 2012 a notice of intention to serve a notice under s 124 of the Local Government Act 1993 (NSW) requiring grass and weeds to be slashed and mowed and debris to be removed. There is no reason to think that this or Alan's other mental disorders could be treated easily. Dr Connors expresses the opposite opinion.
During the course of the revocation proceedings before White J, Mr Churches, the solicitor who had been acting for Alan, formed the view that Alan was no longer capable of providing him with instructions and lacked the capacity to do so. The evidence suggests that Alan was simply incapable of grappling with the fact that he would have to move out of the Fishing Point property. Consequently, on 5 June 2012, Mr Churches made an application to the Guardianship Tribunal in respect of Alan. On 1 August 2012, the Guardianship Tribunal made a financial management order. The New South Wales Trustee & Guardian was appointed Alan's financial manager and the Public Guardian was appointed his guardian for 12 months.
Following the appointment of the Public Guardian as Alan's guardian, attempts were made to find Alan suitable accommodation. Ms Helen Earlam, a principal guardian employed by the Office of the Public Guardian, gave evidence that Alan was offered occupancy of a Department of Housing one bedroom unit at Speers Point which targets senior living. However, Alan refused that accommodation. The reasons he gave were that the internal space was too small for his queen size bed and side table, there was no room for a large refrigerator, the unit was too far from the carpark and there was considerable walking about the complex to access the unit. No alternative accommodation has been found for Alan and, as a result, he currently lives in a caravan park and leases storage space to store the possessions he has hoarded. It appears that he will need to move from his existing site to another less desirable one in the caravan park. Dr Connors expresses the opinion that Alan's current lodgings "would be a depressing place to live for him" and says "I don't think this is helping his depression at all".
As I have said, Lynette retired in September 2007. Ron retired in October 2010 at the age of 67.
Lynette's and Ron's assets are as follows:
| House at Bolton Point | $410,000 |
| Amount in bank accounts | $5,600 |
| Holden Astra | $4,000 |
| Ford Cougar | $5,000 |
| Ron's superannuation | $39,400 |
They have a mortgage with Citibank which is currently approximately $99,000. It has been necessary to increase the amount of the mortgage to pay for costs associated with the estate. The Ford Cougar is currently off the road because it requires repairs which Lynette cannot afford to make.
Lynette and her husband's fortnightly income is approximately $1,500. It consists of a state superannuation pension of approximately $1,000 per fortnight to which Lynette is entitled and a Centrelink part pension of approximately $500 per fortnight to which Ron is entitled. Lynette estimates their monthly expenses as $3,656.18, including mortgage repayments of $1,100 per month.
Lynette's and Ron's health appears to be reasonable, although Lynette has type 2 diabetes which requires daily insulin injections and Ron suffers from a number of complaints including rheumatoid arthritis, diabetes and persistent atrial fibrillation.
The net distributable estate is estimated to be as follows:
Proceeds of sale of Fishing Pont property
$550,098.40
Less
Legacies
$13,000.00
Payments by executor on behalf of the estate
$15,944.80
Estimated costs of this proceeding
$37,307.60
Administration costs
$1,705.00
$67,957.40
$482,141.00
On that basis, each of Lynette and Alan would receive $241,070. However, as I have said, on 15 June 2012, White J ordered that Alan should pay the costs of the proceeding commenced to remove him as an executor. Those costs total $44,615.40. It is estimated that Alan's legal costs of this proceeding on a party/party basis are $32,041.75.
Relevant legal principles
Section 59 of the Act relevantly provides:
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) ... , and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Section 60 provides:
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person -the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
As a result of the Court of Appeal's decision in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, there is a question now whether in applying s 59 the court should follow the two stage process adopted by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-9 and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [5] per Gleeson CJ; at [56] per Gummow and Hayne JJ; and at [112] per Callinan and Heydon JJ in relation to the analogous provisions of the Family Provision Act 1982 (NSW), the predecessor of Chapter 3 of the Act. The first stage involved the court determining whether it could make an order for provision for the maintenance, education or advancement in life of a particular applicant. If the court was so satisfied, the second stage involved a determination of what provision, if any, should be made. In Andrew v Andrew Basten JA (with whom Allsopp P agreed) expressed the view that ss 59 and 60 no longer involved a two-stage process. Rather, they required the court to consider the single question whether to make a family provision order and the nature of any such order having regard to the factors set out in s 60. The issue has been most recently discussed in detail by Hallen J in Harrisson v Skinner [2013] NSWSC 736 at [62]-[79]. His Honour concluded that it was appropriate to continue to apply a two-stage process. It is not necessary to add to the debate in this case. As I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. The answer to those questions in this case is not going to turn on the precise way the issue is approached.
Section 58(2) of the Act provides:
An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.
The principles to be applied by the court in determining whether to grant an extension of time under s 58(2) were helpfully summarised by Hallen AsJ (as he then was) in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 in these terms:
[84] The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.
[85] The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.
[86] The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.
[87] The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig at [21].
[88] In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.
[89] As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.
[90] Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].
It is apparent from what Hallen AsJ said that there is an issue whether the applicant for an extension of time must establish that the applicant is entitled to substantive relief or merely that the applicant's claim for substantive relief is not bound to fail. Where the application for an extension and the application for substantive relief are heard at the same time, as is usual and as occurred in this case, there is no practical difference in the two approaches. Given the interrelationship between the two issues, it is convenient to consider the substantive question first.
Is Alan entitled to substantive relief?
There is no dispute that Alan is an eligible person.
It is submitted on Alan's behalf that he has been left without adequate provision for his proper maintenance and advancement in life because the legacy that has been left to him is not sufficient to enable him to buy a suitable house in which to live. It is said that he needs to be able to buy a suitable house because, having regard to his psychological or psychiatric conditions, he cannot be placed in accommodation offered by the Housing Commission or by other institutions. For example, Ms Denise Rickman, the retirement living coordinator for Anglican Care, gives evidence that Anglican Care has three villages in the Westlakes, Toronto area. However, she expresses the view that, because of the disabilities with which Alan suffers, and in particular his hoarding, she does not believe that he would be a suitable person to be offered accommodation in any independent living unit established pursuant to the Retirement Villages Act 1999 (NSW). The only alternative, then, if he is unable to acquire a house of his own is that he will be homeless, as is essentially the position now.
Evidence has been filed on Alan's behalf of the type of housing that is available in the area in which he lives. According to that evidence, the costs of a suitable house is in the range of $225,000 to $279,000. To those figures need to be added the costs of acquisition. On that basis, it is submitted that, in place of Alan's half share of the residual estate, provision should be made in favour of Alan to enable him to buy a house to the value of $300,000, to pay stamp duty and legal costs of approximately $11,500 and to pay his costs of the revocation proceeding of $44,614.40. Assuming those orders were made, Alan would also be entitled to recover his costs of this proceeding of approximately $32,000 with the result that approximately $94,000 would be available to Lynette.
Mr Hill, who appeared for Alan, recognised that Lynette had a strong competing claim. However, in his submission, if the court made the orders sought, there would still be sufficient money in the estate for Lynette to repay most of her mortgage of $99,000. Moreover, an order could be fashioned which gave Alan a life estate in the property that was acquired for him or, alternatively, gave Lynette the amount to which she was entitled absent an order if the property acquired for Alan is sold.
I do not accept these submissions. I say that for a number of reasons.
First, I am not satisfied that it is so important that Alan live in a house of his own that his needs should, in effect, take priority over those of Lynette's. I accept that it would be preferable for Alan to live in a house of his own, and that that would provide the best conditions under which to treat him. However, accepting that, it remains unclear just what that means in practical terms. It is not suggested that the psychological problems from which he suffers could be cured or even improved substantially if he lived in a house of his own. His obsessive compulsive behaviour is said by Dr Connors to be incurable given his age, circumstances and the treatment required. Dr Connors says that Alan's obsessive compulsive behaviour is the principal reason why Alan needs a house of his own. The idea appears to be that if he had a large storage shed he could store his existing possessions and those that he continues to collect there, and that would improve his state of mind. However, it is not suggested that that would improve his sleep pattern or agoraphobia, which appear to be the principal sources of his depression. Nor is it clear whether Alan could be prevented from accumulating possessions in the house as he did at the Fishing Point property, how that could be done and what effect it would have on his mental state if it could be done. It is obviously undesirable that anyone, and particularly anyone of Alan's age, should find themselves living in a caravan park. However, Alan was offered Housing Commission accommodation. He turned it down. It appears that, for whatever reason, he would prefer to live in the caravan park rather than the accommodation that was offered to him. That is unlikely to be a choice that most people would make. But it was the one he made. On the available evidence, the most that could be said is that, if Alan had his own house, that would provide some improvement in his mental state, but how significant that improvement would be remains unclear.
Second, I am not satisfied that the object that is sought to be achieved could be achieved by the provision that is sought on Alan's behalf. Dr Connors says in his report dated 28 May 2013:
I concur wholeheartedly that a small house with facilities for storing his gear or potential for such a building to be built is essential for the optimal control of his medical problems. We should put a caveat on the living arrangement that they be close to medical services and that he has enough funds to actually employ a house cleaner and a yard maintenance person. I think due to Alan's poor ability to organise himself if these facilities aren't allowed for, then his house and yard will become over run and this would not be desirable for his medical and psychological conditions.
No evidence has been given of what funds would be necessary to provide for a cleaner or yard maintenance person. Mr Hill suggested that, all that was needed was for someone to come in once every 6 months to clean the place up and that the costs of that could be paid for from Alan's pension. In my opinion, that is unrealistic. Dr Connors does not express a view on how often a house cleaner and yard maintenance person would be required. However, the likelihood is that a cleaner would be required at least weekly and a yard maintenance person fortnightly or monthly. Alan is not only incapable of doing any cleaning or tidying up himself, but his behaviour means that he creates mess. It is difficult to see how that could be controlled unless he is visited frequently. It seems unlikely that those costs could be paid out of his pension. Moreover, it seems likely that to ensure that a cleaner and yard maintenance person continued to clean the property it would be necessary for the orders made by the Guardianship Tribunal to continue indefinitely. Whether or not that will happen remains uncertain.
Third, in my opinion, even if a house were bought for Alan and even if arrangements could be made so that it was cleaned regularly and the yard maintained, that would only provide a temporary solution. Alan is 67. Dr Connors has expressed the opinion that he is highly likely to have a heart attack or a stroke. If he does, there is a substantial risk that another form of care will have to be provided for him in any event. Although this factor should not be over-emphasised, it does seem to me to be a relevant factor where Lynette has needs of her own.
Fourth, it is accepted that Lynette has a strong competing claim. She had a very close relationship with her mother and cared for her mother over a number of years while Alan lived in the house at Fishing Point rent free. Lynette and her husband have a modest income. Both are retired. They have a substantial mortgage, particularly for a couple of their age. Their house needs work, particularly the bathroom and kitchen, which have not been renovated since the house was built in about 1970. They also need at least one replacement car and, in my opinion, some amount of money to provide a buffer against contingencies. If an order is made in Alan's favour, there is unlikely to be sufficient money to repay the mortgage in full let alone meet any other needs Lynette has. It is not an adequate solution to give Alan a life estate in the property that is bought or to give Lynette an interest in the proceeds of sale of Alan's house if and when it is sold. A number of Lynette's needs are immediate. She should not have to bear the uncertainty of not knowing when she might receive further benefits from the deceased's estate.
There is one other point to be made about the circumstances of this case. The policy behind Chapter 3 of the Act and its predecessors is that a testator should be free to dispose of his or her estate except to the extent that the testator seeks to deal with his or her estate in a way which offends current community standards concerning the appropriate provision that should be made for those who might be thought to have a legitimate claim on the testator's bounty: Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at 204 - 205 per Gleeson CJ; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269] - [280]; Re Leonard [1985] 2 NZLR 88 at 92; see also Gorton v Parks (1989) 17 NSWLR 1 at 11. The community standard is expressed in the legislation in terms of whether the testator has made adequate provision for the proper maintenance, education or advancement in life for certain classes of person who have a close personal or family relationship with, or are dependant on, the testator. As s 60 makes clear, a broad range of considerations must be taken into account in determining whether that standard has been met. But the question remains whether the standard has been met, and, if it has not, what provision is appropriate. The question is not whether some other disposition of the testator's property would be better or fairer than the one provided for in the will: Gorton v Parks (1989) 17 NSWLR 1 at 6 per Bryson J; Cooper v Dungan (1976) 50 ALJR 539 at 542 per Stephen J.
In the present case, the deceased was faced with a difficult choice. The evidence is that she struggled so that she would have the house at Fishing Point to leave to her children. Even so, the house was not of sufficient value to achieve all that she might have wished. She had a son with psychological problems who needed somewhere to live. For that reason, the deceased reluctantly agreed that he could move back home in 1997, even though he was then 51 years old, and for that reason she was no doubt keen to make provision for him. On the other hand, she had a daughter to whom she was very close, with whom she had lived for a number of years, who had no doubt provided her with a great deal of assistance and emotional support and whose own financial position was not strong. Faced with these competing demands, the deceased chose to leave the bulk of her estate to be divided between them equally. Although that may not have been the only way she could have discharged the obligation she owed to each of her children, I cannot see how it could be said that she failed to meet current community standards of what would be expected of a testator in her position.
It follows that, in my opinion, the deceased did not fail to make adequate provision for the proper maintenance or advancement in life of Alan.
Should an extension of time be granted?
Having regard to the conclusions that I have reached, strictly speaking, it is not necessary to answer this question. However, I should express my views on it.
Assuming that Alan had established that he had not been left without adequate provision for his maintenance and support, I would have granted an extension of time in which to bring his claim.
The delay was a period of approximately 10 months. Lynette has not pointed to any real prejudice that she has suffered as a consequence of the delay. The only prejudice that she has suffered is that there has been a delay in distributing the estate.
Although neither Alan nor the Public Guardian filed an affidavit explaining the delay in commencing the proceedings, it appears that Alan did not consult a solicitor until February 2012, when he was served with the summons in the revocation proceeding. It can be inferred that he did nothing before then because of his psychological problems which ultimately caused Mr Churches, his solicitor, to make an application to the Guardianship Tribunal. There was not a significant delay between the time when Alan engaged Mr Churches and the time when this proceeding was commenced. In my opinion, Alan's psychological problems provide an adequate explanation for the delay in commencing the proceedings.
Orders
The summons should be dismissed.
If the parties can reach agreement in relation to costs, I will make orders in chambers to reflect that agreement. If not, I stand the matter over until a date to be fixed with Associate for any argument in relation to costs.
**********
Decision last updated: 28 June 2013
5
9
4