Evans v Levy

[2010] NSWSC 504

CITATION:	Evans v Levy [2010] NSWSC 504
HEARING DATE(S):	29 April 2010
JUDGMENT DATE :	21 May 2010
JUDGMENT OF:	McLaughlin AsJ
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. I order that the Defendant be entitled to recoup from the estate of the late Willem Mooy (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. 4. The exhibits may be returned.
CATCHWORDS:	SUCCESSION - family provision - claim by adult step-daughter - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - factors which warrant making of application - competing claim of beneficiaries.
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Walker v Walker [1996] NSWSC 188 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19 Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1
PARTIES:	Maria Evans (Plaintiff) Francis Laurence Levy (Defendant)
FILE NUMBER(S):	SC 2009/288018
COUNSEL:	Mr G. McNally, SC (Plaintiff) Mr J. Lo Schiavo (Defendant)
SOLICITORS:	Matthews Dooley & Gibson (Plaintiff) Forbes- Smith and Company (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 21 May 2010

2009/288018 MARIA EVANS –v- FRANCIS LAURENCE LEVY

JUDGMENT

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

2 By summons filed on 13 March 2009 Maria Evans claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Willem Mooy (to whom I shall refer as “the Deceased”).

3 The Deceased died on 27 February 2008, aged 84 years. He left a will dated 8 February 2005, probate whereof was on 4 July 2008 granted to Francis Laurence Levy, the executor named in such will (who is the Defendant to the present proceedings).

4 The inventory of property discloses the following assets, and the respective values or estimated values thereof:

House property at Homebush $850,000
Bank account $4,193
Term deposit $30,245

5 The house property was subsequently sold in May 2009 for $920,000, that price being somewhat greater than the estimated value disclosed in the inventory of property. The net proceeds of sale, in an amount of almost $832,000, are held by the Defendant in a term deposit, which is earning interest. The other assets of the estate are held in the trust account of the solicitors for the Defendant, in an amount of almost $79,000.

6 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to an order that his costs be paid out of the estate.

7 It has been estimated on behalf of the Plaintiff that her costs will total about $45,000 (plus GST), whilst it has been estimated on behalf of the Defendant that his costs will total about $41,000. Accordingly, it is prudent to proceed upon the basis that the distributable estate will be in the order of about $820,000.

8 The Plaintiff (who was born in 1938 in Moldovia, and is presently aged 71 years) is the step-daughter of the deceased. The Plaintiff and her mother (her father having been killed in Romania during the Second World War) came to Australia in 1950. The Plaintiff’s mother married the Deceased on 5 January 1951.

9 The Deceased himself (who appears to have been of Dutch extraction) had come to Australia from Indonesia in 1950. The Plaintiff was aged 12 at the time of her mother’s marriage. She remained a member of the same household as her mother and the Deceased until her own marriage in 1965. Thereafter, the Plaintiff and her husband continued to live with the Plaintiff’s mother and the Deceased until they moved into their own residence at Dundas in 1966.

10 From the time of her mother’s marriage to the Deceased until her own marriage, the Plaintiff (whose maiden surname was Leahu) used the Deceased’s surname, Mooy.

11 According to the Plaintiff, she was treated by the Deceased as if she were his own natural daughter. She said that he introduced her as his daughter. She addressed him as Papa. When the Plaintiff married, the Deceased gave her away at the wedding.

12 After the death of the Plaintiff’s mother in 2004, the Deceased made a new will, being that of 8 February 2005. That will made no provision for the Plaintiff. It gave the totality of his estate (after payment of debts, funeral and testamentary expenses, and other liabilities) to be divided into four parts, three such parts for Angelique Smeding and one such part for Rebecca Van Geel. Those two ladies are great-nieces of the Deceased, being grand-daughters of a sister of the Deceased.

13 Clause 5 of the will is as follows,

I have omitted to make any provision or gift for my daughter, MARIA EVANS because of the difficulties I have been experiencing with her since October 2002 and in the circumstances and [ sic ] more particularly set out in the Statement Pursuant to the Provisions of Section 32 of the Family Provision Act which has been signed by me on the date of this my Will.

14 The statement referred to in clause 5 of the will (which is admissible in evidence pursuant to section 32 of the Family Provision Act) is dated 8 February 2005, and contains the following,

2. I have made the decision to omit my said step-daughter from any gift bequest or devise in my Will on the basis and for the reason that my late wife prior to her death in September 2004 and myself have been having difficulties and arguments with my said step-daughter since making Wills in October 2002, being arguments and strained relations with not only my step-daughter but with her husband, JOHN WILLIAM EVANS as well. I perceive my said step-daughter to be a greedy person who has been only concerned with the monies she might receive from the assets of my late wife and myself, although she already owns three (3) parcels of real estate in New South Wales being at Kings Langley, at Toukley and a flat at Norahville. My step-daughter is in a very good financial situation; she is still employed and earning good wages. Her husband has recently sold a business for a large consideration and has more than adequate monies for himself and his wife.
3. I have decided to leave my assets to members of my family in Holland, who are in less favourable financial circumstances.
4. In view of the facts and circumstances set out in paragraph 2 above, I believe that my said step-daughter, MARIA EVANS has been adequately and properly provided for in the monies that she has herself and in the assets that she and her husband have built up during their married life.

15 The Plaintiff’s husband, John William Evans, who was alive at the time of the commencement of the present proceedings and who provided an affidavit which was read as evidence in the Plaintiff’s case, died on 8 October 2009. In consequence of his death, the assets of the Plaintiff, as well as her income, have altered somewhat from what they were at the commencement of the present proceedings.

16 The Plaintiff has the following assets (to which the following values or estimated values are ascribed):

Residence at Kings Langley $520,000
Rental property at Reynolds Road, Noraville $260,000
Rental property at Elizabeth Drive, Noraville $210,000
Term deposit $40,000
Savings account $8,000
Shares $4,800

17 The Plaintiff’s total assets, apart from her residence at Kings Langley, are of a value which allows her to receive a part pension from Centrelink. The evidence as to the amount of that part pension was not very clear, but it would appear to be in fortnightly payments which total $6100 a year.

18 The Plaintiff’s present annual income is as follows,

Centrelink part pension $6,100
Rental from Noraville properties $20,800
Interest $3,000
Dividends $420
Total $30,320

19 The Plaintiff gave evidence of her outgoings, in a total amount of almost $34,400 (which figure includes outgoings and expenses relating to her rental properties).

20 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such claims are those of the two great-nieces of the Deceased, Angelique Smeding and Rebecca Teunissen Van Geel, who are the chosen objects of the testamentary beneficence of the Deceased.

21 Evidence was provided concerning the financial and material circumstances of the two beneficiaries, each of whom resides at Utrecht in the Netherlands.

22 Angelique Smeding was born in 1987, and is presently aged 23. She is an unmarried mother, with a baby less than a year old. They reside with Ms Smeding’s own mother (who is a niece of the Deceased). Ms Smeding is presently unemployed. She receives certain government benefits and allowances, in consequence of the birth of her son on 19 December 2009, and in consequence of her own health situation. Those benefits and allowances total the equivalent of about $990 a month. Ms Smeding gave details of expenses of herself and her infant son, totalling the equivalent of about $720 a month. She has no assets, apart from personal effects and minimal household goods. Ms Smeding had an affectionate relationship with the Deceased, who regularly visited the Netherlands and stayed with his sister (Ms Smeding’s grandmother) on those visits. Ms Smeding and the Deceased were in regular correspondence by post.

23 Rebecca Teunissen Van Geel was born in 1986, and is presently aged 23. She also resides at Utrecht in the Netherlands. She is a married lady, living with her husband and their two children, aged respectively about one year and about two years. Ms Van Geel is not in employment, and her husband who receives a monthly income of about $2,247, is the only income earner in the family. Their monthly expenses are slightly less than Mr Teunissen’s income. No information was provided by Ms Van Geel concerning either her husband’s occupation, or any details of their assets or liabilities.

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 a written outline of submissions from Counsel for the respective parties, together with a chronology from Counsel for the Plaintiff. Those documents will be retained in the Court file.

26 The Plaintiff submits that she is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she was for a period of 12 years a member of the same household as the Deceased, and that she was, throughout that period, dependent upon the Deceased.

27 I am satisfied that she is an eligible person within that paragraph of the definition. As such she has the standing to bring the present proceedings.

28 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (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 his or her proper maintenance.

29 The High Court in Singer v Berghouse (at 209 – 210) said that the determination of the first stage

calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

30 Accordingly, it is necessary at the outset for the Plaintiff to establish that she has been left without adequate provision for her proper maintenance.

31 Although the Plaintiff did not give specific evidence as to the nature and accommodation of the house wherein she lives, it would appear that it is, in fact, a commodious residence.

32 During the course of her cross-examination, the Plaintiff was asked whether there is “anything you are planning on doing which you cannot fund out of the money you have”, to which the Plaintiff responded, “No”.

33 That response, of itself, is not necessarily fatal to the Plaintiff’s claim. Also it should be noted that by skilful re-examination Senior Counsel for the Plaintiff succeeded in eliciting a qualification to that response, to the intent that the Plaintiff said that she needed to spend some money on her residence, and specifically that her swimming pool required maintenance. (In her affidavit evidence she had quantified the costs of such work in a total amount of about $12,500.)

34 Nevertheless, even apart from the foregoing admission, it can hardly be said that the Plaintiff, owning three unencumbered pieces of real estate, with a total value of almost $1,000,000, and having an income totalling in excess of $30,000 a year, has been left without adequate provision for her proper maintenance. I am not satisfied that she has been so left.

35 In this regard, I do not overlook what was said by Bryson JA in the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1, at 9, [32] that, “The concept of advancement in life can take consideration well beyond needs”.

36 It is not for the Court to tell the Plaintiff how she should conduct her lifestyle and manage her financial affairs. But if (as she appears to be asserting) the outgoings on the rental properties at Noraville are disproportionate to the income therefrom, she can hardly expect to look to the estate of the Deceased to redress what is apparently an uneconomic investment. There is no impediment to her disposing of one or both of those properties, and investing the proceeds, to obtain a higher income.

37 It is clear that the Plaintiff does not have any specific needs, apart from maintenance to her residence and, in particular, to her swimming pool. Further, there is no evidence that would establish an entitlement of the Plaintiff, at her present age of 71 years, to provision for her advancement in life, or for her education.

38 It is understandable that the Plaintiff should feel some sense of grievance in circumstances, where, as here, the assets of the Deceased’s estate were built up by contribution from the Plaintiff’s own mother, and, to a very small extent, by contribution from the Plaintiff herself.

39 However, in this regard it is appropriate to set forth the following passage from the judgment of Young J (as he then was) in Walker v Walker [1996] NSWSC 188 (unreported, 17 May 1996), with which I respectfully agree,

I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally…

40 During the lifetime of the Plaintiff’s mother, she and the Deceased had what are sometimes referred to as mutual wills. Each left the entirety of her or his respective estate to the survivor, and the survivor left his or her estate equally between the Plaintiff and the family of the Deceased.

41 Three such wills were made to that effect, during the lifetime of the Plaintiff’s mother, by each of the Plaintiff’s mother and the Deceased (being dated respectively 18 March 1985, 25 July 1996, and 30 October 2002). (The Homebush house property, as I understand it, had been held by the Deceased and his wife as joint tenants, and upon his wife’s death had passed to the Deceased by survivorship.)

42 After the death of his wife on 29 September 2004, the Plaintiff made his present will, the practical effect of which is that the contribution of the Deceased’s wife in building up the estate is disregarded.

43 The Deceased by the statement pursuant to section 32 of the Family Provision Act made on the same date as he executed his final will, 8 February 2005, offers various explanations for the omission of the Plaintiff from any benefit under his will. Several of those explanations by the Deceased are not accurate. For example, the Plaintiff’s husband sold his business in 1987, some 18 years before that date. That sale could hardly be described as having taken place “recently”. Further, the “very good financial situation” in which the Deceased said that the Plaintiff found herself is, of course, a relative concept.

44 It must be appreciated that, although the statement by the Deceased is admissible pursuant to section 32 of the Act, the Court is not required to accept unquestioningly the truth or accuracy of that statement, much of which was denied by the Plaintiff. Testators, like living witnesses, may make untrue or inaccurate statements, either deliberately or unintentionally. But, unlike living witnesses, the truth or accuracy of their statements cannot be tested by cross-examination.

45 There was evidence given concerning a somewhat curious aspect of the relationship between the Plaintiff and the Deceased. That evidence referred to allegations made by the Plaintiff’s daughter Shan that, from the time when she was aged three until she was aged 14, she had been subjected to sexual abuse from the Deceased.

46 The evidence of the Plaintiff in this regard was that the Plaintiff herself became aware of the allegations made by her own daughter against her stepfather, the Deceased, when Shan was aged three and a half (that is, in about 1969). Nevertheless, according to the Plaintiff, she still maintained a cordial relationship - indeed, one of respect - with her step-father. It is difficult to accept that if her own daughter, a child of tender years, had complained to her that the Plaintiff’s step-father was sexually interfering with the child, the Plaintiff would not have taken some form of action in this regard. One inference to be drawn is that the Plaintiff did not believe her daughter’s complaints. In any event, there seems to have been no form of confrontation by the Plaintiff with the Deceased concerning these allegations, at least until Shan herself in 2004 (when she was aged about 39) made such allegations to the Deceased’s face. (Shan, who was not cross-examined, did not state in her affidavit when she first complained to her mother, the Plaintiff, regarding the conduct of the Deceased.)

47 It is, of course, impossible for the Court to make any findings in respect to these allegations, since the alleged perpetrator is no longer alive, and cannot respond to the allegations made against him. If such allegations were made to the Deceased during his lifetime, it is easy to understand his request that neither the Plaintiff’s daughter nor that daughter’s husband visit the Deceased’s home.

48 The Deceased, in his statement of 8 February 2005, made no reference to those allegations. It was submitted by Senior Counsel for the Plaintiff that, in effect, the Court should not give any consideration to those allegations as possibly providing an explanation for the conduct of the Deceased in omitting to make testamentary provision for the Plaintiff.

49 It is curious, therefore, if the Court is now being asked to disregard those allegations, that it was the Plaintiff herself in her affidavit evidence, as well as the Plaintiff’s own daughter, Shan (the alleged complainant), in her affidavit evidence, who raised the allegations in the first place. Certainly, such allegations, if they were falsely made, or were without substance, would understandably have caused the Deceased to have felt so resentful against the maker of those allegations, that that resentment could have extended to the Plaintiff, the mother of that complainant. It may well have been considerations of delicacy that deterred the Deceased from making express reference in his statement of 8 February 2005 to what he regarded to be totally unfounded allegations of a most serious nature proffered against him by the Plaintiff’s daughter.

50 My foregoing conclusion that I am not satisfied that the Plaintiff has been left without adequate provision for her proper maintenance is of itself determinative of her claim.

51 If, however (contrary to the foregoing conclusion), I were to be satisfied that the Plaintiff had been left without adequate provision for her proper maintenance, it would then be necessary (pursuant to section 9(1) of the Family Provision Act) for the Plaintiff to establish that there are factors which warrant the making of the present claim.

52 Those factors were described by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being,

factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

53 The factors that the Plaintiff here relies on are the fact that the Deceased, from the time when he married the Plaintiff’s mother, treated and regarded the Plaintiff as his daughter (indeed, in his will he refers to her as his daughter), and the fact that the Plaintiff herself contributed to building up the Deceased’s estate.

54 In this latter regard it was originally asserted by the Plaintiff in her affidavit evidence that, when the Deceased and the Plaintiff’s mother purchased the house property at Homebush in 1960, the Plaintiff (who was then aged about 21 years) had contributed 400 pounds towards the purchase price (which was, according to the Plaintiff, 10,000 pounds).

55 Exhibit 1 discloses that the Plaintiff was inaccurate both as to the purchase price (which was, in fact, 6,100 pounds), and as to her own contribution thereto. Ultimately, under cross-examination, the Plaintiff conceded that the financial contribution made by her to the purchase price was only 255 pounds.

56 Concerning the section 9(1) factors asserted by the Plaintiff, it was submitted on behalf of the Defendant that the following matters are of relevance and significance:

The Plaintiff left school to gain employment more than 50 years ago (in 1954).
The Plaintiff was married in 1965, and had her first child shortly thereafter.
The Plaintiff has not resided with the Deceased for more than 46 years (since 1966).
The Plaintiff is the sole owner of three unencumbered properties, worth in total approximately $990,000.
The Plaintiff has investments producing more than $24,000 a year.
The Plaintiff has not contributed in any substantial way to the property or assets of the Deceased.
The relationship between the Plaintiff and the Deceased was not a close one.

57 I am not satisfied that the fact that the Plaintiff was treated by the Deceased as his daughter during the period while she was a member of the same household as her mother and the Deceased for a period of 12 years, or the fact that fifty years ago she contributed 255 pounds towards the purchase price of the family home, costing 6,100 pounds (that is, just over 4 percent of that purchase price), constitute factors which when added to the fact that the Plaintiff was a member of the same household of the Deceased and was throughout that period dependent upon him would entitle the Plaintiff to be generally regarded as a natural object of testamentary recognition by the Deceased.

58 Thus, in the absence of such factors contemplated by section 9(1) of the Act, the Plaintiff, even if (contrary to my foregoing conclusion) she had established that she had been left without adequate provision for her proper maintenance, cannot proceed in her present claim.

59 However, even if (contrary to the conclusions which I have just expressed) the Plaintiff were to have established, first, that she has been left without adequate provision, and, second, that there are factors which warrant the making of her claim, the claim must be approached in the light of the competing claims of other persons who have a claim upon the testamentary bounty of the Deceased.

60 Each of Angelique Smeding and Rebecca Teunissen Van Geel is a young lady in extremely modest financial and material circumstances. That is especially the case of Ms Smeding, who is a single unmarried mother, supporting an infant less than one year old, essentially on social security benefits, and with the assistance of her own mother.

61 Although neither Ms Smeding nor Ms Teunissen Van Geel is an eligible person, each is related by blood to the Deceased, and it is apparent that the Deceased had a close and affectionate relationship with each of those young ladies. The Court should not overlook the fact that they are the chosen objects of the testamentary beneficence of the Deceased, to whom he left the entirety of his estate.

62 Any order of provision which might be made in favour of the Plaintiff, should be one which would not detrimentally affect the benefits given by the Deceased to Ms Smeding and to Ms Teunissen Van Geel.

63 Even if (contrary to each of my foregoing conclusions) the Plaintiff were otherwise to establish an entitlement to an order for provision, the competing claims of the two named beneficiaries are such that any order for provision would be no more than a modest legacy, which would essentially enable the Plaintiff to effect what she asserts is necessary maintenance to her residence and to her swimming pool. Any such legacy would certainly be no more than $20,000.

64 However, as I already observed, I am not satisfied that the Plaintiff has established, first, that she has been left without adequate provision for her proper maintenance, or second, that there are any factors that warrant the making of the present application. Accordingly, the claim of the Plaintiff will be dismissed.

65 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. I order that the Defendant be entitled to recoup from the estate of the late Willem Mooy (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.
4. The exhibits may be returned.
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