Fairfield v Williams

[2005] NSWSC 421

CITATION:	Fairfield v Williams [2005] NSWSC 421
HEARING DATE(S):	27 April 2005
JUDGMENT DATE :	28 April 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraphs 44 and 46

CATCHWORDS:	Family Provision. Claim by a daughter left out of will. Proceedings dismissed. No matter of principle.
PARTIES:	Robyn Anne Fairfield v Gary Williams - Estate of Violet Mary Griffiths
FILE NUMBER(S):	SC 5737 of 2005
COUNSEL:	Mr A L Hill for plaintiff Mr L Ellison for defendant
SOLICITORS:	Collins & Thompson for plaintiff Gray & Perkins for defendant

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 28 APRIL 2005

5737/05 - ROBYN ANNE FAIRFIELD v GARY WILLIAMS - ESTATE OF VIOLET MARY GRIFFITHS, DECEASED

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the Estate of the late Violet Mary Griffiths, who died on 17 July 2003. She was survived by the plaintiff, her daughter, her son Allan, and the children of her deceased daughter, Lorraine.

WILL OF THE DECEASED

2 The last will of the deceased was made on 14 March 2002. Her grandson, Gary Williams, was appointed the executor and under the will she left half her estate to her son Allan, and the remaining half equally between the children of Lorraine, Gary Williams, Mark Williams and Leanne Byrd. There was no provision made for the plaintiff in the will.

3 There was an earlier will of 14 February 1997 in which the deceased left one-half of her estate to the plaintiff and one-half to her son Alan.

ASSETS OF THE DECEASED

4 The house of the deceased has now been sold and the estate reduced to cash. The current balance is $601,388.41. Costs have been incurred in this matter. The plaintiff’s estimate of costs is $45,276, and the defendant’s estimated at $53,819, a total of $99,095. If it were the case the plaintiff succeeded, this would leave an estate in the sum of $502,293.

FAMILY HISTORY

5 The deceased married Victor John Griffiths on 20 June 1942. Her elder daughter, Lorraine, was born on 23 May 1945, and the son, Allan Griffiths, was born on 7 December 1947. Lorraine married in 1964. Robyn, the plaintiff in the proceedings, married John Fairfield on 27 September 1969.

6 It was in 1983 that the deceased’s son, Allan, departed from Australia to live in the United States of America, where he has remained.

7 On 18 October 1993 the deceased’s husband was placed in a nursing home. He was not well, and he had problems with his sight and other matters. He suffered a stroke on 6 July 1995.

8 On 22 August 1996 the deceased’s daughter, Lorraine, died. At some stage after that, namely, 14 February 1997, the deceased made the will to which I have referred, and she also gave the plaintiff and her husband John a power of attorney. At that time the deceased’s daughter Robyn arranged for a “vital call” to be placed on the deceased’s telephone.

9 The deceased found it more and more difficult as she got old and in 2002 she moved in to live with Mark Williams, her grandson. She made a new will on 14 March 2002. The deceased admitted herself into hospital on 16 July 2003 and died on 17 July 2003.

10 Probate was granted on 23 October 2003 and the summons was filed on 12 November 2003. Accordingly the proceedings are within time.

ELIGIBILITY

11 The plaintiff being a daughter of the deceased is an eligible person. In applications under the Family Provision Act, the High Court has set out in Singer v Berghouse (1994) 181 CLR 201 the two-stage approach that a court must take. At page 209 it said:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera 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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

PLAINTIFF’S SITUATION IN LIFE

12 The plaintiff is 57 years of age. She is married and has no dependent children. She does clerical work for her husband’s business, which is that of a plumber. She is in good health and, apart from matters which affect her hands, she suffers from a condition known as scleroderma, a problem she has suffered from for twenty years, and the illness affects the distribution of the blood in her arteries, particularly in her extremities. It causes problems with her hands and feet, and makes it extremely difficult for her in cold weather. The effect of the disease is that she is likely to have further infections on the surface of the skin and these cause her problems from time to time.

13 Although there was cross-examination of the plaintiff suggesting she has led an active life, involving a number of sports, it is plain to me she does have some effects as a result of this illness.

14 Because the work she presently is involved in is work she can do at times she chooses, she is able to satisfactorily work doing the job that she has in her husband’s business. However, I accept that her illness would cause her problems if she had to give up that business and try and obtain some position in the workplace.

15 It is necessary to consider the assets of the plaintiff and her husband. They have been together for many years, and presumably will continue, and accordingly it is their joint position which is appropriate.

16 They have three investment properties. There is one at 137 Meurants Lane, Glenwood, which was appraised in October 2004 at a value of $450,000. They have another property at 37 Tullaroan Street, Kellyville Ridge, which has had an appraisal of $435,000 at the same date; and a property at 41 Tullaroan Street, Kellyville Ridge, having a value of $420,000.

17 There are mortgages on those investment properties, which presently amount to in total $483,253. This gives a net value of those investment properties of $827,747. They have, of course, their business, which has been running and producing for them an income, to which I will turn in a moment.

18 There are a number of other properties other than the investment properties which, as I say, have a net value of $827,747. They have a share portfolio worth presently $45,643, and the superannuation of both the plaintiff and her husband as at June 2004 totalling $509,716. They are owed $131,000 from the company, and have bank accounts as at June 2003 with the NAB bank and the St George Bank of $8,849. There is also an account with Westpac which has a floating balance for part of the time in the low $20,000s. The value of these assets on a conservative basis is in the order of $1,479,836. They also own their residence at 51 Bocks Road, Oakville, and that is valued at $1,050,000. It can thus be seen that the present net value of their assets is in the order of $2,529,836.

19 Both the plaintiff and her husband receive an income from the company. Their group certificates issued for the year ended 30 June 2004 show each of them receiving a salary of $69,165, a total of $138,330. The company does reflect a loss, but plainly the plaintiffs are happy to take a salary out of the company in that amount.

20 It is necessary, of course, to deal with the relationship between the plaintiff and the deceased. The plaintiff accepts that her relationship with the deceased was strained and difficult. The plaintiff was the youngest child. Unfortunately, her mother from an early age made it perfectly plain to the plaintiff that the plaintiff was a mistake and should never have been born, and referred to the fact of her birth as being an accident. The effect this would have on the plaintiff is not hard to imagine.

21 The deceased seems to have taken little interest in the plaintiff’s family whilst they were being brought up. She rejected a number of overtures in this respect, and did not assist. Nevertheless, this relationship between the plaintiff and the deceased continued, and it seems to have become more difficult after the plaintiff’s father died, and the deceased went to live with the grandson, Mark Williams.

22 An example of the type of communication that the plaintiff received was a letter, a typed copy of which is in exhibit A. This letter is addressed to:

“Dear Robyn, Things haven’t been too good between us and I don’t think they will get any better.
So I think the best thing to do is to forget about Christmas presents. They will be given for the sake of giving, not with the thoughts of the joys of Xmas. So I will wish you all a merry Xmas. I won’t be there. Love Mum xx.”

23 That might indicate the deceased’s feelings, but I do not think it really reflected the attempts of the plaintiff to still look after the deceased. It is plain from the evidence of the plaintiff that she and her husband helped the deceased on occasions. The plaintiff’s husband would call around quite often to see how the deceased was and, after leaving, often would be called back in again to do some other tasks that obviously could conveniently have been done at some other time.

24 In paragraph 15 of her affidavit of 23 February 2004, the plaintiff gives details of maintenance and construction work that was done on the deceased’s house. There was also assistance given with her financial needs. Indeed, the plaintiff was a co-signatory on the deceased’s banking account.

25 It seems to me that the deceased was a person who could be very critical of others behind their back and plainly was a difficult woman. I would be very wary of her reported statements to others. This is a case where it is impossible to work out who was the cause. I would not in any way diminish the plaintiff’s claim because of the relationship with her mother.

26 It is also necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are, of course, beneficiaries under the will of the deceased. I turn to consider those beneficiaries.

ALLAN JOHN GRIFFITHS

27 Allan is 59 years of age and has lived in the United States of America since 1983. He has put forward no evidence as to his assets or personal situation, and the Court can thus assume he does not wish the Court to take these matters into account in considering the plaintiff’s application.

28 So far as his relationship with the deceased is concerned, it is obvious that the deceased wished to benefit him, as she provided for him in her will, and indeed in both wills. From some statements of the deceased, it is possible to discern he apparently used to ring the deceased on a weekly basis, and he came out to visit her in Australia probably five or six times in the period from when he went away. He kept up whatever contact he could with the deceased, although separated by distance.

GARY WILLIAMS

29 Gary Williams is 38 years of age, married with three dependent children. He and his wife own a property at Greystanes, worth $450,000, subject to a mortgage of about $90,000. They have an investment property at Delhi Road, North Ryde, which appears to be a unit. Equity in that is only $5,941. He has superannuation of some $98,732, and a car worth $20,000. He estimates their furniture to be worth $30,000, cash in the bank of $5,000 and securities of $20,000.

30 He mentions his wife has approximately $25,000 worth of shares and superannuation of $35,000. Although it is reasonable to assume that they are both working, details of his income situation are not available. Obviously, they have an ordinary lifestyle, and subject to the type of mortgage many people have.

31 He had contact with the deceased but no more details of the relationship are before the Court. He, like his brothers and sisters, has not contributed to the property in the estate, or received benefits from the deceased.

MARK WILLIAMS

32 Mark is 37 years of age. He is married with two dependent children. His assets consist of a house at Tumbi Umbi, worth $430,000, which is the subject of a mortgage of $450,000. He also has an investment property, which has no equity in it as it is not worth any more than the mortgage. The family has two vehicles worth $35,000, furniture worth $50,000 and cash of $5,000.

33 He mentions his wife has no additional assets and his wife has an income of $25,000 per annum. Presumably he also works, and obviously he is also in very modest circumstances.

34 So far as the relationship with the deceased is concerned, it is important to know that he provided accommodation for the deceased in the last two years of the deceased’s life. It was his family who took the deceased in and cared for her during that time.

LEANNE BYRD

35 Leanne is 35 years of age, married with three dependent children. She and her husband have a property at Quakers Hill worth $500,000 and which is subject to a mortgage of $135,000. They have an investment unit with an equity of $100,000 and two cars worth $20,000. They have household furniture of $30,000 and cash of $5,000. Apparently Leanne’s husband is a self-employed driver, and has an annual taxable income of approximately $48,000. They also obviously live in modest circumstances.

36 It is necessary to see how the plaintiff says she has been left without adequate proper maintenance, education and advancement in life. Nothing appears in her affidavit evidence, but in submissions it was expressed as a need to have a sum to pay off or reduce her mortgages. In truth, this is a claim for income in the future. No evidence to justify such a claim, such as projections of income and expenditure, were placed before the Court.

37 The plaintiff and her husband had a combined income of $138,330 last year from the business. They have no children to support and over recent years have had a surplus of income such that they can pay superannuation contributions in excess of the prescribed superannuation rate under the legislation.

38 The plaintiff’s husband gave evidence and he did not suggest he would want to cease work early, or was in ill health. He is 58 years of age. In these circumstances it is reasonable to suppose he will continue with his business until he is 65 years of age. The effect of this is they will be able to substantially increase their superannuation and continue to repay their mortgages on their investment properties.

39 These properties, although negatively geared, do provide an income of $920 per week. If the present mortgages were a problem they could easily be disposed of by the sale of one of the investment properties, and this would still leave an income of $600 a week. Probably the plaintiff and her husband would want to retain them notwithstanding that the properties have suffered a minor reversal in their value over recent years.

40 The plaintiff and her husband have substantial assets of over $2.5 million. They have more than an adequate income stream from a good business. There is no suggestion that it will not continue for the next seven years. They have been able to enjoy a comfortable lifestyle, with overseas trips now and then. They seem together by their hard earned efforts to have placed themselves in a good situation for their retirement.

41 As the plaintiff made clear in the witness box, it was not due to any efforts on behalf of the deceased, but by their own hard work.

42 The problem is that in these circumstances I do not think the plaintiff has been left without adequate and proper provision for her proper maintenance, education and advancement in life.

43 It should be appreciated that the Court only has jurisdiction to make an order where this is not the case. A court cannot correct what a person feels is a moral injustice arising from being left out of the will, or to correct a will because of what might be thought to be unfair. The Court simply does not have jurisdiction to make such an order.

44 Accordingly, in those circumstances I dismiss the proceedings.

(Counsel addressed on the question of costs)

45 There is evidence that there was an offer of compromise made by the defendant to pay the sum of $25,000 plus costs of the plaintiff on 25 November 2004. In the circumstances, I think the ordinary order ought to follow as a result of the plaintiff’s failure and the non-acceptance of that offer.

46 Accordingly, I order the plaintiff to pay the defendant’s costs of the proceedings on a party/party basis up to and including 24 December 2004, and on an indemnity basis from 25 December 2004. The defendant’s costs on an indemnity basis can be retained or paid out of the estate of the deceased. I order the exhibits be returned.

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