Edwards v Edwards

[2003] NSWSC 409

CITATION:	Edwards v Edwards [2003] NSWSC 409
HEARING DATE(S):	Tuesday, 15 April 2003
JUDGMENT DATE:	16 May 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that, in lieu of the benefit to which the Plaintiff is entitled upon the intestacy of the late Dennis Robert Edwards ("the Deceased"), the Plaintiff receive the entirety of the estate of the Deceased absolutely; (2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (3). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Intestacy - Claim by infant son (aged sixteen) - Financial and material circumstances of Plaintiff - Plaintiff suffers from muscular dystrophy - Special needs of Plaintiff - No other person entitled upon intestacy advances a competing claim to that of Plaintiff.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
PARTIES :	Mitchell Robert Edwards (Plaintiff) Paul Robert Edwards (Defendant)
FILE NUMBER(S):	SC 3419/01
COUNSEL:	M. Gorrick (Plaintiff) J. Kildea (Defendant)
SOLICITORS:	Wilkinson Throsby & Edwards, Solicitors (Plaintiff) Thompson Norrie, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 16 May 2003

3419 of 2001 MITCHELL ROBERT EDWARDS -v- PAUL ROBERT EDWARDS

JUDGMENT

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

2 By summons filed on 6 July 2001 the Plaintiff, Mitchell Robert Edwards, claims an order for provision for his maintenance, education and advancement in life out of the estate and/or notional estate of his late father, Dennis Robert Edwards (to whom I shall refer as “the Deceased”).

3 The Deceased died intestate on 26 January 2000. Letters of Administration of his intestate estate were granted on 26 November 2001 to Paul Robert Edwards, who is the Defendant to the present proceedings. (Earlier, on 2 May 2000 an order had been made in the nature of a limited grant of administration, to enable Mr Paul Edwards to carry on the business of water tank business owner which had been conducted by the Deceased at the time of his death.)

4 The inventory of property discloses that the Deceased at the time of his death had the following assets:

Real property at 191 Old North Road, Farley near Lochinvar


Industrial land at 25 Gardeners Road, Rutherford

Interest of Deceased as sole shareholder in Edward’s Concrete Tanks Australia Pty Limited (to which an estimated value of $100,000 was attributed)

Twenty head of cattle (to which an estimated value of $7,000 was attributed)

Miscellaneous farm equipment (to which an estimated value of $5,000 was attributed)

5 Subsequently the Defendant has sold the property at Farley for $330,000, and has applied those funds to meet the indebtedness of the Deceased to the National Australia Bank, which held mortgages over both of the pieces of real estate owned by the Deceased. The Defendant has also entered into an agreement to sell the land at Rutherford for $265,000. He has sold the company’s business assets (receiving $62,193) and the Deceased’s cattle (for which he received $17,310). The Defendant has also placed the Deceased’s four wheel “ag bike” for sale on consignment.

6 At the time of the hearing of the present proceedings the value of the net estate held by the Defendant was $415,748. However, allowance must be made for contingent tax liabilities (estimated at, but not likely to exceed, $50,000). In calculating the amount available for distribution account must be taken of the costs of the present proceedings. It is estimated that the costs of the Plaintiff will be about $34,500, whilst those of the Defendant will be about $8,650. Thus the distributable estate will be in the order of $322,000.

7 The Deceased was survived by his five children. If the possibility that at the time of his death the Deceased was living in a de facto relationship (a matter to which I shall make further reference later in this judgment) be disregarded, the estate of the Deceased on intestacy will be shared equally by those five children, each of whom will be entitled to receive an amount of about $64,500.

8 The Plaintiff is the youngest of the five children of the Deceased. He was born on 10 October 1986 to a union of the Deceased and Martina Leso (formerly Mrs Pirozzi). The Plaintiff has brought the present proceedings by his tutor, Gary James Barnsley.

9 The other four children of the Deceased were born to the marriage of the Deceased to Maureen Patricia Edwards, those children being Paul Robert, the Defendant (born in 1969), Jennifer Louise (born in 1972), Mark (born in 1978) and Sally Anne (born in 1980).

10 The Deceased and the Plaintiff’s mother lived together in a de facto relationship from 1984 until about April 1988, and it was during the period whilst they were living together that the Plaintiff was born.

11 In 1995, when the Plaintiff was aged about nine, he was diagnosed as suffering from muscular dystrophy. That condition has advanced. In 1996 the Plaintiff commenced to use a wheelchair as an aid to his mobility. Since 1997 the Plaintiff has spent virtually all his waking hours in a wheelchair.

12 Evidence has been placed before the Court by Dr Heather M. Johnston, Director, Muscle Diseases Clinic at the Sydney Children’s Hospital (Exhibit A). In her report of 30 October 2000 Dr Johnston, who is a paediatric neurologist, states,

Mitchell has Duchenne muscular dystrophy (DMD) which is a progressive neuromuscular disorder. Mitchell is unable to walk independently and is reliant on an electric wheelchair for mobility. This obviously affects the type of housing that he requires. He also requires a hoist for transferring him from chair to bed, wheelchair to shower chair and so on.

He will get progressively weaker and issues like feeding will become increasingly difficult for him and he will become more dependent on his mother or other carer. In terms of long term prognosis of the condition, most young men will die in their late teens or early twenties, though occasional young men will survive into their thirties.

13 In her report of 21 November 2002 Dr Johnston states,

You are requesting an update on the condition of Mitchell Edwards. A description of his disease and prognosis is as in my letter dated 30.10.00. I reviewed Mitchell in the Children’s Muscle Clinic on 16.8.02. I recommended that he have an assessment by Dr John Stephen, orthopaedic surgeon, concerning his scoliosis. Mitchell requires a power chair for mobility. His arm strength was slightly weaker when examined on 16.8.02 as compared with 25.1.02. His cardiac status was evaluated on the same day and no abnormality was found. The plan will be to review him in early 2003.

14 Detailed evidence concerning the Plaintiff’s needs and the costs thereof has been placed before the Court by Glynis Joy Flanagan, occupational therapist, in her affidavit of 4 April 2003, filed on behalf of the Plaintiff, and by Fiona Lyon, occupational therapist, in her report of 10 April 2003 (Exhibit 1), tendered on behalf of the Defendant.

15 The Plaintiff resides with his mother and his stepfather, Robert Leso (whom the Plaintiff’s mother married in 1999), in a residence which is currently being constructed by Mr Leso (who is a builder by trade) at Robertson in the Southern Highlands. That house is being constructed to meet the Plaintiff’s special needs, for example, by providing access and ramps.

16 Evidence by way of affidavit was given by the Plaintiff himself, and also by his mother, concerning his lifestyle and needs. The Plaintiff is now aged sixteen. He is in Year 11 at Bowral High School. The Plaintiff has no assets other than his clothing and his personal possessions. He has no income. He is totally dependent upon his mother and his stepfather. So far as is possible within the constraints imposed by his lack of mobility and the necessity that he used a wheelchair, the Plaintiff attempts to lead the life of an ordinary teenage schoolboy.

17 The Plaintiff’s parents separated in 1988 when he was aged only a year and a half, although from about April 1989 until April 1990 the Plaintiff, his mother and the Plaintiff’s half-sister (born to his mother of her marriage with Mr Pirozzi) resumed cohabitation with the Deceased at his residence at Lochinvar. Despite the separation of his parents, the Plaintiff had a very good relationship with his father. He continued to see the Deceased frequently and regularly. From 1991 until the death of the Deceased in 2000 the Plaintiff and the Deceased spent most of each of the Plaintiff’s school holidays together. During those holidays the Deceased provided all accommodation, meals and spending money for the Plaintiff, as well as buying clothing and gifts for him. It was the practice of the Deceased to collect the Plaintiff from his then home at Bowral and take him to the Deceased’s residence at Lochinvar. Whilst the Plaintiff was residing with his mother at Bowral it was the practice of the Deceased to telephone the Plaintiff on a weekly basis. The news of the diagnosis that the Plaintiff was suffering from muscular dystrophy was described by Mrs Leso in the following terms,

It was a big shock for both of us and Dennis [the Deceased] was devastated. From my observations it made Dennis and Mitchell become even closer and Mitchell continued to spend each school holiday with his father.

18 After the Plaintiff commenced to use a wheelchair in 1996 he during that year sometimes took his wheelchair with him when he spent his school holidays with his father. However, when, from 1997 onwards, it became necessary for the Plaintiff to spend virtually all his waking hours in a wheelchair, his school holiday visits to the Deceased at Lochinvar continued unabated, the only difference being that he then always took his wheelchair with him. In 1997 the Deceased purchased for the Plaintiff a quad motorbike, which gave enjoyment to the Plaintiff when he visited the Deceased.

19 In 1999 the Deceased was diagnosed with cancer, a fact of which he informed the Plaintiff, who was aware at that time that cancer was a serious illness. Nevertheless, the Plaintiff continued to spend all his school holidays with the Deceased, although he noticed that his father was thin and somewhat slower in doing certain things.

20 From December 1999 until January 2000, a period during which the Deceased was undergoing chemotherapy, the Plaintiff nevertheless spent part of his school holidays with the Deceased. When the Deceased went to hospital in January 2000 the Plaintiff visited him there, and indeed visited the Deceased in hospital on 26 January 2000, the day of the Deceased’s death.

21 In her affidavit to which I have already referred, Glynis Flanagan, occupational therapist, sets forth in considerable detail the Plaintiff’s present situation and his future requirements. She sets forth her opinion concerning various aids and equipment, motor vehicle requirements, accommodation needs, vacations and future treatment requirements. Miss Flanagan summarises her report as follows,

As a result of being diagnosed with Duchenne muscular dystrophy Master Edwards does present with physical limitations that impact upon his ability to participate in activities. As Duchenne muscular dystrophy is known to be progressive he will continue to require assistance and will most likely require increasing amounts of assistance. He requires specific equipment and assistance now and in the future as outlined in Section 4.

22 In her report of 10 April 2003 Miss Lyon comments upon Miss Flanagan’s assessment and recommendations for the care of the Plaintiff, and stresses her views concerning the needs of the Plaintiff and the costs of those needs.

23 It was the opinion of Miss Flanagan that the various items of personal care, nursing care, modified motor vehicle for transport, equipment, holiday, and ongoing treatment, would total $691,283, whilst it was the opinion of Miss Lyon that the cost of those various items would total $322,559.

24 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.

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

26 The Plaintiff as a son 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 he has the standing to bring the present proceedings. It will be appreciated that each of the other four children of the Deceased is also an eligible person in relation to the Deceased.

27 There was placed before the Court correspondence between the solicitors for the Defendant and the solicitor for one Susan Conroy (which correspondence was annexed to the affidavit of Peter Kirsop, solicitor for the Defendant, sworn 14 April 2003). It would appear that Mrs Conroy asserts that she was in a de facto relationship with the Deceased at the time of his death. That assertion is disputed by the Defendant.

28 I would here interpolate that the Defendant, when going through his father’s papers after his death, discovered a draft will of the Deceased, which document was filed in the Probate proceedings in which the letters of administration were granted to the Defendant. That draft will contained, in clause 2(c)(v), a legacy in the following terms,

As to the sum of TWENTY THOUSAND DOLLARS ($20,000) to my long term secretary SUSAN GLORIA CONROY for her own use and benefit absolutely.

29 Mrs Conroy was served with a notice of claim pursuant to Part 77 rule 63(2) of the Supreme Court Rules on 7 May 2002. She has made no claim for provision under the Family Provision Act, although she has made a specific claim for certain cattle which were located upon the property of the Deceased, asserting that she was the legal owner of such cattle in consequence of a gift made to her by the Deceased.

30 On 1 April 2003 the solicitors for the Defendant informed the solicitors for Mrs Conroy, firstly, that the solicitors for the Plaintiff had “made an offer that Mitchell is to receive the whole of the net estate which is to be held on trust until Mitchell turns eighteen and then released to him. Costs are to be paid by the Estate.” Further, that the matter had been specially fixed for hearing on 15 April 2003. The letter also adverted to the fact that if Mrs Conroy still wished to make a claim for $50,000 (a claim for such an amount being the subject of the protracted and substantial correspondence between her solicitors and the solicitors for the Defendant) she “may yet have to apply for Family Provisions [sic] for herself. We will not take any point in relation to her late application and indeed will, if you wish, provide copies of all correspondence regarding the offer of settlement as an explanation of why she has not commenced proceedings to date.”

31 For an abundance of caution, during the hearing on Tuesday, 15 April, the matter was called outside the Court, since Counsel for the Plaintiff considered it possible that Mrs Conroy might be present in person at the hearing. She neither appeared nor was represented at the hearing.

32 In these circumstances, even if the Court were to be satisfied (and I note, firstly, that there is no evidence to support such a status, and, further, that the Defendant denies that status) that Mrs Conroy was the de facto partner of the Deceased at the time of his death, I consider that it is appropriate, consonant with the provisions of section 20 of the Family Provision Act, to disregard the interests of Mrs Conroy.

33 It is appropriate also here to record that Mrs Conroy has made no attempt to substantiate, by any legal process, her asserted status as the de facto partner of the Deceased.

34 Upon the intestacy of the Deceased the Plaintiff, as one of the five children of the intestate is, pursuant to the provision of section 61(4)(b) of the Wills, Probate and Administration Act 1898, entitled to a one fifth share of the distributable estate. That is, the Plaintiff is entitled to one fifth of $322,600, being in an amount of $64,500.

35 I have no hesitation in expressing my conclusion that by receiving that amount out of the estate of his father the Plaintiff has been left without adequate provision for his maintenance, education and advancement in life.

36 It may be relevant to a consideration of the financial and material circumstances of the Plaintiff that the Deceased had a superannuation entitlement in an amount of about $7,000, and that it is likely that ultimately that superannuation entitlement will be paid to the Plaintiff’s mother, for the benefit of the Plaintiff. Even if such an amount be received, it will not in my view diminish the claim of the Plaintiff upon the estate of his father.

37 It is abundantly obvious, even upon the figures provided by Miss Lyon, which were relied upon by the Defendant, that the needs of the Plaintiff resulting from his physical limitations will exhaust the entirety of the amount available for distribution in the estate. Those needs do not take into consideration, for example, future education expenses of the Plaintiff, in the event that he might wish to pursue tertiary education. Neither do they take into account the possibility that the Plaintiff might wish to reimburse his mother and stepfather for the additional costs which have been incurred in constructing the house at Robertson to accommodate the Plaintiff’s disabilities. It should in this regard be emphasised, however, as was made clear in the letter of 31 May 2001 from the Plaintiff’s stepfather, Robert Richard Leso (annexure B to the affidavit of Martina Leso sworn 17 May 2002) that he estimates that an additional cost of $17,800 will be spent to accommodate Mitchell’s special needs in the residence. This cost includes a bathroom suitable for a disabled person, ramps, wider doors for wheelchair access and a larger carport to enable Mitchell’s wheelchair access to the car without having to brave the elements because of the high annual rainfall in that locality. Mr Leso states,

I have based this estimate on the consideration that if Mitchell were an able bodied person I would not have to include these additional items in our new home. Please note, I do not begrudge having to carry out this extra work to accommodate Mitchell’s special needs. This is merely a cost exercise to inform you of the additional cost involved to accommodate a disabled person in our new home.

38 It should here be recorded that none of the other four children of the Deceased has placed before the Court any evidence of competing claims upon the bounty of the Deceased which would have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. No evidence concerning the financial and material circumstances of any of those other persons has been placed before the Court.

39 I am satisfied that it is proper that Mitchell should receive the entirety of the estate of his father. It would not be in the interests of justice for him to receive less.

40 I make the following orders:

(1). I order that, in lieu of the benefit to which the Plaintiff is entitled upon the intestacy of the late Dennis Robert Edwards (“the Deceased”), the Plaintiff receive the entirety of the estate of the Deceased absolutely.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned.

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Last Modified: 07/10/2003