Ford v Simes
[2009] NSWCA 351
•6 November 2009
New South Wales
Court of Appeal
CITATION: Ford v Simes [2009] NSWCA 351 HEARING DATE(S): 30 September 2009
JUDGMENT DATE:
6 November 2009JUDGMENT OF: Tobias JA at 1; Bergin CJ in Eq at 2; Handley AJA at 76 DECISION: 1. Leave is granted under s 5 of the Felons (Civil Proceedings) Act to bring the appeal.
2. Leave to adduce additional evidence is refused.
3. Appeal is dismissed.
4. Appellant to pay the respondent's costs of the appeal, subject to any application for a different costs order to be made by the filing of a Notice of Motion within 14 days of today.CATCHWORDS: PROCEDURE – Leave sought to adduce additional evidence – Where evidence available at trial – Where high probability of different outcome not established - SUCCESSION – Family provision and maintenance – No provision made for appellant – Where appellant is son of deceased – Where appellant unilaterally abandoned relationship with deceased – Where appellant displayed hostility toward deceased – No contact between appellant and deceased for 14 years - Whether open to Trial Judge to find no “other special circumstances” present LEGISLATION CITED: Administration and Probate Act 1915 (Vic)
Administration of Estates Act 1925 (UK)
Family Protection Act 1955 (NZ)
Family Provision Act 1982 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW)
Probate Administration Act 1898 (NSW)
Real Property Act 1900 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)CASES CITED: Barker & Anors v Magee [2001] NSWSC 563
Benney v Jones (1991) 23 NSWLR 559
Cetojevic v Cetojevic [2006] NSWSC 431
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2008] NSWSC 1120
Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
Hodge v Griffiths [1940] Ch 260
House v The King (1936) 55 CLR 499
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134
In Re Allardice, Allardice v Allardice (1910) 29 NZLR 959
In Re Thorne v Sherson’s Contract [1920] V.L.R. 50
McIntosh v Williams [1976] 2 NSWLR 237
Mulcahy v Weldon [2002] NSWCA 206
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Potier v Ruddock [2008] NSWSC 153
Re Heberley (Deceased) [1971] NZLR 325
Singer v Berghouse (1994) 181 CLR 201
The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1962) 107 CLR 9
Walker v Walker (unreported, NSWSC 17 May 1996)
Wheatley v Wheatley [2006] NSWCA 262TEXTS CITED: BA Helmore (ed), The Law of Real Property in New South Wales (6th Ed, 1948) Lawbook Co, Sydney
BA Helmore, (1930) 4(8) Australian Law Journal 258
AC Millard, GW Millard, BA Helmore (eds), Lawbook Co, The Law of Real Property in New South Wales (4th Ed, 1930) Melbourne
SA Thompson, (1930) 4(6) Australian Law Journal 185PARTIES: Stuart Cecil Ford (Appellant)
Natalie Ann Vaisey Simes (Respondent)FILE NUMBER(S): CA 40080 of 2009 COUNSEL: L Ellison SC/R Marshall (Appellant)
GC Lindsay SC/CP Locke (Respondent)SOLICITORS: Patey & Murphy Solicitors (Appellant)
AE Dunne (Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 2091 of 2007 LOWER COURT JUDICIAL OFFICER: Macready AsJ LOWER COURT DATE OF DECISION: 19 December 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Ford v Simes [2008] NSWSC 1120
40080 OF 2009
6 NOVEMBER 2009TOBIAS JA
BERGIN CJ in Eq
HANDLEY AJA
1 TOBIAS JA: I agree with Bergin CJ in Eq.
2 BERGIN CJ in Eq: The appellant, Stuart Cecil Ford, appeals from the judgment of Associate Justice Macready (the Trial Judge) [[2008] NSWSC 1120] delivered on 19 December 2008, dismissing his application under the Family Provision Act 1982 (NSW) (the Act) for provision out of the estate of his late father, Cecil Means Ford (the deceased) who died on 16 March 2004.
3 By Will dated 18 December 2000, Probate of which was granted on 25 May 2004, the deceased left the whole of his estate to his daughter, Natalie Ann Vaisey Simes, the respondent, who was also appointed executrix. The deceased’s former wife, from whom he had separated in 1963, died on 8 October 2004, leaving her estate equally to their children, the appellant and the respondent. The appellant’s legacy under that Will was $114,000 and this was his only asset at the time of trial.
The Act
4 A pre-requisite to an entitlement to an order for provision out of the deceased’s estate is that the applicant must be an “eligible person”: s 7. The appellant satisfied that requirement as a son of the deceased: s 6. Once that test is satisfied the Court may exercise its discretion to make any order for provision that in its opinion “ought” be made: s 7 [see Singer v Berghouse (1994) 181 CLR 201]. In determining if any provision should be made and if so, what provision should be made, the Court has a very broad discretion. It takes into account the whole circumstances of the matter including, but not limited to: the conduct of the eligible person before and after the death of the deceased; circumstances existing before and after the death of the deceased; and any other matter that the court considers relevant in the circumstances: s 9(3).
5 Where an application is made out of time, that is, after a period of 18 months after the death of the deceased, the Court is able to extend the period within which such application may be brought if sufficient cause is shown for the application not having been made within the period: s 16(3)(b).
6 Section 24 of the Act provides:
24 Notional estate – distributed estate
- On an application in relation to a deceased person, if the Court:
- (a) is satisfied that an order for provision ought to be made on the application, and
- (b) finds that, as a result of a distribution from the estate of the deceased person, property became held by a person (whether or not as trustee) or subject to a trust,
- the Court may, subject to sections 27 and 28, make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed.
7 Section 27 of the Act prohibits the Court from making an order designating property as notional estate unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter which it considers relevant in the circumstances.
8 Where an order has been made under s 16 extending the time within which to bring the application, s 28(5) of the Act applies. That subsection provides relevantly as follows:
(5) On an application in relation to a deceased person, being an application:
- (a) made pursuant to an order under section 16 allowing the application to be made, …
- the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:
(c) that:
(i) the property was the subject of the prescribed transaction or distribution,
(iii) the property is not vested in interest in any beneficiary under the trust, or(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and
(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property.
9 The scheme of the Act suggests that the Court only considers whether to make an order designating property as notional estate if it has first satisfied itself that an order for provision ought to be made on the application. Once the Court is so satisfied it then moves to consider the matters referred to in s 27 and in the case of an application pursuant to an order under s 16, the matters in s 28(5) of the Act.
The Trial and the Judgment
10 The appellant was born in 1953. His parents separated in 1963. He attended Newcastle Boys High School and developed an interest in cinema projection. He went to live with the deceased for a short period in 1969 but his mother secured a court order for him to return to live with her. He left school in 1969 and after two uncompleted apprenticeships, he commenced his own business showing movies in clubs with his own projection equipment, which the deceased had purchased for him. The deceased gave the appellant a Morris 1100 motor vehicle, which he later traded in for a Ford Falcon with a loan that was guaranteed by the deceased. The appellant's evidence was that the deceased's ongoing financial assistance allowed him to purchase more and better projectors and to expand his business.
11 In 1974 the appellant moved to Sydney. He worked at a radio station as a panel operator during the week and in Newcastle on weekends in his movie projection business. He moved to Queensland in 1990 and between 1991 and 2000 he conducted his movie projection business in that State under the name “The Picture Show Man”. He then worked in community radio broadcasting until about 2002 when he committed criminal offences for which he is currently in custody in the Wolston Correctional Centre at Wacol, in Queensland.
12 The appellant had only one contact with the deceased between 1990 and 2004. That was a short encounter in 1995 when the appellant verbally abused the deceased. The deceased attempted to make contact the following week but the appellant refused to speak to him.
13 In 1998 the deceased dictated a statement to the respondent in which he referred to the appellant’s: lack of respect for him; his failure to contact him for any of his birthdays; and his failure to assist him as he had aged. That statement also included the following:
The last time I saw Stuart was in 1995 he called out at Mt Hutton while I was mowing the lawn stood straight in front of me and said "Hello, You don't know who I am do you?" I said to him "Should I know you" He said " You silly f - fool I am your son". He then walked away got in the car and drove away. He was so fat and different to the last time he had called to see me so many years before.
14 The deceased also referred to the fact that he had not provided the respondent with the material support that he had provided to the appellant and stated: “she does not act at all in any way” like the appellant “so I choose to leave my estate to her”.
15 The appellant’s claim at trial was that on release from custody his only prospect of earning income would be to re-establish a business of the type he previously operated and possibly do voice-overs in shopping centres and/or on the radio. In this regard he claimed that he would need $10,000 to $20,000 to purchase equipment and at least $250,000 to $300,000 to purchase a "modest residence" in the location in which he intends to live in Queensland.
16 The main assets of the deceased’s estate were some tenanted shops in an area known as Mount Hutton (the properties). These properties were valued at $1.1 million as at 1 August 2007 and $950,000 as at 16 October 2008.
17 The parties ran the trial on the basis that the deceased’s estate had been fully distributed and that an order for provision under s 7 of the Act could only be made from notional estate. The parties also proceeded at trial on the basis that the appellant was required to prove that there were “other special circumstances” which justified the making of an order designating the properties as notional estate: s 28(5)(d) of the Act.
18 There were a number of impediments to the appellant’s claim at trial. The first was that he was, and still is, in custody at the Wolston Correctional Centre at Wacol in Queensland, having been convicted of a number of serious indictable offences. In those circumstances he required leave to bring the proceedings: s 4 Felons (Civil Proceedings) Act 1981 (NSW). Such leave could only be given if the Court was satisfied that the proceedings were not an abuse of process and that there was “a prima facie ground for the proceedings”: s 5 Felons (Civil Proceedings) Act. Although the Trial Judge said that it was necessary to consider the substance of the proceedings to see whether they amounted to an abuse and that he would return to that aspect of the matter later in his judgment, he did not do so [36]. There was no explicit consideration given to whether there was a “prima facie ground” for the proceedings within the meaning of that expression in s 5 of that Act.
19 The next impediment was that the appellant needed the consent of the Public Trustee in Queensland to commence the proceedings. However that consent was given. The next impediment was that the plaintiff’s claim was out of time and it was therefore necessary for the Trial Judge to decide whether, pursuant to s 16 of the Act, time should be extended to allow the plaintiff to bring the proceedings. His Honour was satisfied that there was an adequate explanation for the delay in making the application and that there was no unacceptable prejudice if time were to be extended because the defendant had not pointed to any change in her circumstances: [45]-[46]. Time was extended for the plaintiff to bring the application: [48].
20 The Trial Judge was satisfied that the plaintiff was an eligible person and that he was unlikely to require any provision until at least his release from prison in 2011: [52]. Although there was no further mention of the leave that was necessary under s 4 of the Felons (Civil Proceedings) Act, it appears from the finding made by the Trial Judge that the appellant was an eligible person and the fact that time was extended, that the Trial Judge was satisfied that the proceedings were not an abuse and that there was a prima facie ground for the proceedings.
21 The appellant’s relationship with the deceased was at the core of his Honour’s consideration of the appellant’s claim. His Honour said:
55 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought , having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person”.
54 One of the principal questions in this case is the nature of the relationship between the plaintiff and his father and whether having regard to what I might conclude in respect of that relationship whether it [is] appropriate to make provision.
22 The Trial Judge then analysed the relevant cases relating to the meaning of “ought” in s 7 of the Act, in particular Priestley JA’s conclusion in Benney v Jones (1991) 23 NSWLR 559 at 569 that an applicant must show a moral claim on the estate before an order can be made. After review of other cases, the Trial Judge referred to what Young J (as his Honour then was) said in Walker v Walker (unreported, NSWSC 17 May 1996) at 27 as follows:
Accordingly, 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.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper and adequate provision for the plaintiff.
23 The Trial Judge also referred to the fact that Ipp JA had approved that passage in Walker v Walker in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [112] with some qualification. The Trial Judge then referred to the lack of contact between the appellant and the deceased for the fourteen years prior to his death [70-72] and said:
73 It seems that the plaintiff abandoned the relationship he had with his father after he moved to Queensland. He had the opportunity to continue contact but he only did so on one occasion in a most cursory way. Although this is the case it should not be a bar to a claim but it is a fact to be considered when assessing what claim the plaintiff has on the bounty of the deceased in the context of his need for proper and adequate provision.
24 The Trial Judge then considered the respondent’s situation in life observing that she suffered from various health problems and that she did not have any prospect of obtaining any other work given her health and age: [77]. His Honour also made reference to the illness of the respondent’s husband.
25 The Trial Judge then dealt with the notional estate. His Honour observed that section 27 of the Act required the Court to have regard to certain matters including the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order [80]. In dealing with s 28(5)(d) of the Act and a submission by the respondent that the making of an order designating any distributed property as notional estate would interfere with her reasonable expectations in relation to the properties, his Honour referred to his own decision in Barker & Anors v Magee [2001] NSWSC 563 with emphasis on the protection provided to persons taking under the Will by the requirement on the applicant to establish “special circumstances” [81]-[83].
26 The Trial Judge referred, appropriately, to Campbell J’s (as his Honour then was) decision in Cetojevic v Cetojevic [2006] NSWSC 431 at [76]-[79] in which his Honour analysed the expression “other special circumstances” in s 28(5)(d) of the Act. The Trial Judge noted that his Honour made the assumption that something more than the circumstances shown to justify an extension of time under the Act was needed to establish “other special circumstances” and observed that Campbell J “seems to have regarded the strength of the plaintiff’s case as an important matter” [86]. His Honour referred to the special circumstances claimed by the appellant and then said:
89. These matters, which play at the heartstrings, do not take into account the deliberate abandonment of the relationship with his father long before he became involved with the criminal justice system. As to that involvement the defendants submit that it is self-inflicted. But that is not always the correct approach in these matters, as the court has to make its judgment on the situation at the time of the hearing. As was said in Re Hattie [1943] SR (Qld) 1 at 26:
88. These can be summarised in the following way. The plaintiff had a hard early life in a broken home. Nevertheless the deceased encouraged and helped him in the occupation that was to take him away from home and to Queensland. He did move away in 1990 and in 2002 his life took a turn for the worse as a result of his involvement in criminal activity. He had difficulty finding out about his parents’ death and he will emerge from prison as a convicted [sex offender]. His mother did not feel the same way as the deceased and provided for the plaintiff in her will.
- “…a just father’s moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving.”
27 The Trial Judge found that the appellant abandoned his relationship with the deceased and concluded:
93. In my view the plaintiff has not established the existence of “other special circumstances” which would (within the meaning of s 28(5)(d) of the Act) justify the making of an order designating the distributed property as notional estate.
92. In this case if one takes into account the abandonment of the relationship it is difficult to justify the provision of funds for a house. I note that the notional estate is large but not excessively so and there has been no change of position by the defendant. She may well have to sell the shops to meet any award but she would be left with plenty of funds, which could be invested to produce an income.
28 The appellant's application was dismissed.
Applications for leave
29 The appellant made two applications for leave. The first was for leave to institute the appeal proceedings pursuant to the Felons (Civil Proceedings) Act. The second was for leave for this Court to “receive additional evidence” pursuant to Part 51 Rule 51(1) of the Uniform Civil Procedure Rules 2005.
Leave to commence proceedings
30 The parties accepted that the appellant needed leave to commence the appeal proceedings and that pursuant to s 5 of the Felons (Civil Proceedings) Act, such leave could not be granted unless the Court was satisfied that the proceedings were not an abuse of process and that there was a prime facie ground to the proceedings. Counsel for the respondent neither opposed nor consented to leave being granted. In those circumstances it is necessary to consider the two statutory pre-requisites to the exercise of the discretion to grant leave.
31 There is nothing to suggest that the appellant's application to this Court is an abuse. The appellant was an “eligible person” to bring an application under the Act for provision out of the deceased's estate: s 6. The appellant established "sufficient cause" for the extension of the time within which to bring the application at first instance: s 16(3)(b). The deceased made no provision for the appellant and his application for provision was dismissed. The expression "prima facie ground" in s 5 of the Felons (Civil Proceedings) Act as it applies to this application, means no more than a ground of appeal that is arguable or not totally hopeless. The grounds alleging that the Trial Judge erred in failing to find that there were other special circumstances and failing to order provision in favour of the appellant were arguable: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469 at [15]; Potier v Ruddock [2008] NSWSC 1469.
32 Leave under s 5 of the Felons (Civil Proceedings) Act to bring the appeal should be granted.
Leave to receive additional evidence
33 The evidence in support of this application was an affidavit of Richard Arthur Murphy, the solicitor for the appellant, which referred to the property search that was in evidence before the Trial Judge that included a reference to a Transmission Application, registered number AA736875. The affidavit annexed a copy of the Transmission Application. The Transmission Application identifies the respondent as the “Applicant” and includes the following:
The applicant, being entitled as Executrix of the will of the deceased registered proprietor (who died on 16 Mar 2004) pursuant to probate No 107291/04 granted on 25 May 2004 to NATALIE ANN VAISEY SIMES (a certified copy of which is lodged herewith) applies to be registered as proprietor of the estate or interest of the deceased registered proprietor in the above land.
34 The Transmission Application includes a section for the executor, administrator or trustee to consent to the application, which was not completed. The Transmission Application was made pursuant to s 93 of the Real Property Act 1900 (NSW) which provides:
93 (1) Upon the death of a registered proprietor, the executor, administrator or other person claiming consequent upon the death, will or intestacy of that deceased proprietor, or otherwise, to be entitled to be registered as proprietor may apply in the approved form to the Registrar-General to be registered as proprietor of all or part of the estate or interest of that deceased proprietor.
Transmission on Death of Proprietor
- (2) An application under subsection (1) shall be:
- (a) supported by such evidence as the Registrar-General may require, and
- (b) accompanied by the consent of the executor or administrator of the deceased proprietor where the applicant claims otherwise than as executor, administrator or trustee unless the Registrar-General thinks fit to dispense with that consent.
- (3) The Registrar-General on being satisfied that an applicant under subsection (1) is entitled to the estate or interest claimed in the application, shall record the applicant in the Register as proprietor of that estate or interest.
- (4) Where, pursuant to an application under subsection (1), a person is registered as proprietor with the consent of another person given under subsection (2)(b), the person who has given the consent shall, for the purposes of section 129(2)(f), be deemed to have become, immediately before registration of the applicant as proprietor, registered as proprietor of the land specified in the application and to have transferred that land to the applicant.
35 After the evidence had been completed before the Trial Judge and during the period in which the parties were supplementing their submissions in writing the appellant’s solicitors wrote to the respondent’s solicitors referring to the Transmission Application and inviting the respondent’s consent to the appellant relying on it in its written submissions. The respondent’s solicitor advised that the issue raised by the appellant was “merely a technicality” and had no substance. Reference was made to the publication of the Notice of Intended Distribution and the fact that the respondent had dealt with the properties since the transfer of title in the belief that she was their owner in her own right. The appellant did not make application to the Trial Judge to re-open his case for the purpose of tendering the Transmission Application. Both parties’ submissions dealt with the case on the basis that the estate had been fully distributed.
36 The appellant’s purpose in seeking leave to adduce this additional evidence was to challenge the whole basis on which the trial proceeded (and the judgment was delivered) that the estate had been fully distributed. The fact that the estate had been fully distributed meant that the appellant was required to establish that there were other special circumstances justifying the making of an order designating the distributed estate as notional estate under s 28(5)(d) of the Act. If the appellant had been able to show that the estate had not been fully distributed then this burden of proof would not have been imposed on him.
37 The respondent claimed that her duties as executor were completed by 20 June 2004. The correctness of that submission is questionable because of the apparent need for the executrix to attend to the filing of tax returns in respect of the rental income that would have been received in respect of the properties. However the respondent’s solicitors believed that the respondent’s executorial duties were completed by 20 June 2004 and they advised the respondent that when the Transmission Application was registered the properties were transferred into her “sole name” as “beneficiary”.
38 The so-called “additional evidence” would raise the issue of what an executor/sole beneficiary is required to do in respect of the transfer of real property to himself or herself. On the one hand there is the proposition that when the executorial duties have been completed, the executor/beneficiary is required to make a declaration in registrable form that the real property is no longer held as executor or executrix but as beneficiary. Section 11(1) of the Trustee Act 1925 (NSW) provides:
(1) If any property is vested in any person as executor of a will under which the person is the trustee of the property or is beneficially entitled thereto, such person may, at any time after all the executorial duties with respect to the property have been duly performed, declare by registered instrument in writing that he or she has ceased to hold the property as executor and that he or she holds the same as trustee or as beneficiary, as the case may be.
11 Ceasing to be executor
39 On the other hand there is the proposition that when the executor is the sole beneficiary such a declaration or separate transaction is not necessary. The respondent submitted that the equitable estate in the properties merged with the co-extensive legal estate held by the respondent/executrix on 20 June 2004 when her executorial duties were completed. It was submitted that such a merger is not contingent upon the registration of a declaration made under s 11(1) of the Trustee Act. In support of this proposition the appellant relied upon a passage in The Law of Real Property in New South Wales 4th Edition AC Millard, BA Helmore, where the learned authors stated the proposition that “where an executor is also beneficially entitled under the will to any property it was doubtful whether he should, after fulfilling executorial duties, execute an acknowledgement or conveyance in favour of himself”. The learned authors said at page 136 fn 112:
- In an article in the Weekly Notes Covers, vol, XI., No 39, (sic) the opinion was expressed that an executor-devisee should execute a conveyance or transfer to himself, or sign and register an acknowledgement to himself. A Victorian case, Hosken v Danaher (1911), V.L.R. 214, was referred to. But from a logical point of view it is difficult to understand why this should be so. The object of the acknowledgment or conveyance is to vest in the person entitled under the will, the legal estate which is in the executor by virtue of sec. 44 of the Wills, etc., Act. In the case of an executor-beneficiary the legal estate is already vested in him and on completion of the executorial functions he holds, by virtue of s. 47, on trust for himself, and one would imagine that the equitable estate would merge in the co-extensive legal estate. Upon examination it appears that Hosken v. Danaher was a case relating to land under the Victorian Land Transfer Act, 1890 (corresponding to our Real Property Act, 1900). An administrator, who was registered as proprietor of the land as such, obtained an assignment and release from the beneficiaries of their interests in favour of himself, and lodged it, together with a transfer from himself as administrator to himself in his personal capacity, with the Registrar of Titles. The Registrar refused to register the transfer. The Court ( Madden, C.J., and a’Beckett , J. – Hood , J., dissentiente ) held that the transfer should be registered; but from their judgments it appears clear that the judges were considering, not the passing of the legal estate, but merely the effect of the transfer as an appropriate means under the Land Transfer Act of giving the administrator, as beneficial owner, a clear certificate of title. See per Madden, C.J., at pp. 224, 225, per a’Beckett, J., at pp. 226, 227, and cf. per Hood , J., at p. 221.
40 Hodge v Griffiths [1940] Ch 260 was a case in which the deceased’s husband, the plaintiff, was the sole beneficiary and joint executor and trustee of the deceased’s Will with the defendant, Mr Griffiths. The gift to the plaintiff of the real property in the estate was conditional upon him paying to his sister-in-law £2 per week during her life. In the event that the plaintiff sold the properties he was required to invest £2,000 and pay the income from that investment to his sister-in-law for her life and after her death to her children. The applicable statute, Administration of Estates Act 1925 (UK), provided that a written assent to the vesting of a legal estate was required to be in writing and signed by the personal representative naming the person in whose favour it was given. The plaintiff had not signed an assent. The plaintiff brought proceedings to determine whether in the event of the acceptance of the gift, the Will imposed on him a personal liability to pay his sister-in-law the sums mentioned in the Will.
41 Farwell J concluded that there was a personal liability upon the plaintiff to pay his sister-in-law the sums mentioned in the Will if he chose to accept the gift but that it was open to the plaintiff to disclaim the gift and thereupon he would have ceased to have been under any personal liability. There was then a question as to whether the plaintiff was in a position to disclaim the devise. Farwell J said at 264-265:
It is said in the first instance that here the property can never have vested in the plaintiff as beneficiary or devisee because there had been no written assent, and that under the Administration of Estates Act, 1925, s 36, sub-s. 4, such an assent is necessary. In my judgment this is not the true view. No doubt under the Act if a vendor is selling as beneficial owner taking under a will, the purchaser is entitled to require a written assent in order that he may be satisfied as to the title; and the Act gives him the right to demand it, but in a case of this sort the position is not the same. The legal estate in the property is vested in the plaintiff as legal personal representative and there is therefore no difficulty with regard to that. His equitable interest as devisee depends upon equities and upon whether or not he has done acts which must be treated as amounting to sufficient evidence of assent so as to make it impossible for him now to say that he has never accepted this gift.
There is sufficient evidence, in my judgment, to show quite plainly that he did accept this devise and has in fact treated himself as the owner in equity of the property, as distinguished from ownership as legal personal representative.…
[1920] V.L.R. 50 was a case in which the deceased had left his property to his widow and also appointed her as sole executrix. The widow obtained probate and died intestate. The administrator of her estate conveyed the land in question and there were subsequent changes in ownership of the land. A subsequent purchaser claimed that the legal estate had been outstanding since the widow’s death because she only held the land as executrix of the deceased and that it never passed to her in her own right as devisee, and therefore never passed to her administrator. Mann J said at 54-55:
Now, in the ordinary case, where the executor and the devisee are different persons, it would appear to be necessary, in order to vest the legal title in the devisee, that there should be a conveyance by the executor to the devisee: In the Will of Allan [1912] V.L.R. 286.
In the present case, the executrix and the devisee being one and the same person, is there anything in the common or statute law requiring that for purposes of conveyancing the two sources of title should be kept distinct after the grant of probate?…It has never been held, so far as I can find, that it is necessary for an executor–devisee to convey to a trustee to his (the executor’s) own use, in order to rid himself of the character of an executor, or to enable him or his representatives to make a complete title under the will.…
43 His Honour concluded that there was nothing in the Administration and Probate Act 1915 (Vic) to prevent the legal and equitable estates in the lands in question, “which united in” the widow from the grant of Probate of the deceased’s Will passing upon her death to an administrator of her estate.
44 The 6th Edition of Millard includes the following at page 135:
Where an executor is also beneficially entitled as devisee under the will to any real estate, having regard to the fact that the legal estate is already vested in him by virtue of the Wills, &c., Act, it is questionable whether any form of assurance is necessary to vest it in him as beneficiary. Quite a controversy has raged on this point, and many authorities favour the view that a conveyance or acknowledgement is necessary. The present editor takes the view that, as the executor-beneficiary already has the legal estate vested in him, on completion of executorial duties he holds, by virtue of section 47 of the Wills, &c., Act, on trust for himself, and his equitable estate as beneficiary merges in his co-extensive legal estate. Consequently it is a matter of evidence only as to whether executorial duties are fulfilled or not.
45 The editor referred to In Re Thorne v Sherson’s Contract and Hodge v Griffiths as support for his view. In the present case Senior Counsel for the respondent embraced the above-mentioned proposition that the respondent, as executrix, could hold the property on trust for herself but abandoned that proposition during submissions. The “controversy” to which reference was made in this passage from Millard included competing views of practitioners published in the Australian Law Journal.
46 A contrary view was expressed by a reviewer (SA Thompson) in the Australian Law Journal ((1930) 4 ALJ 185) who said:
It is difficult to see how, in the case of realty, merger could operate without some definitive act on the part of the executor establishing the executorial duties had been fulfilled.
Certainly, for the purposes of proving title to land, a conveyance or acknowledgement, or some registered equivalent such as the declaration now provided for in s 11 of the Trustee Act, 1925, would be much more satisfactory than a mere assent, which might be no more than an inference drawn from the executor’s conduct.…
47 In reply (appearing at p 258 of the same volume) Mr BA Helmore said that whilst personalty had always required some evidence of assent it was “unnecessary” in relation to realty. Mr Helmore submitted that merger would automatically follow in relation to realty by virtue of s 47 of the Probate Administration Act 1898 (NSW), but agreed that an executor could utilise the procedure under s 11 of the Trustee Act, but that such a document would be evidentiary only, and not translative.
48 In Re Heberley (Deceased) [1971] NZLR 325 the New Zealand Court of Appeal (North P, Turner and Haslam JJ) considered an appeal from a judgment in which the Trial Judge had ordered provision for two grandchildren of a testator under the Family Protection Act 1955 (NZ). One of the appellant’s grounds of appeal was that the estate had been completely, or almost completely, distributed and that no effective order for provision (or no order for more than $200) could be made. The executor sole beneficiary had become registered proprietor of the relevant real property on an application for transmission in consequence of the death of his co-executor and co-trustee. He had not executed a memorandum of transfer and remained on the title at the time of trial by reason of the application for transmission.
49 Turner J said at 333:
I have noticed that in his well-known work on the Land Transfer Act at p 282 Mr E C Adams observes that “the better practice is for the executor or administrator to transfer to himself as beneficiary”; but he seems to me careful not to say that this course is necessary . And Mr Baalman in his Commentary on the Torrens System in New South Wales (1951) refers at p 327 (while discussing the section in the New South Wales Statute which enables a registered proprietor to transfer to himself) to the enactment of the section, as validating:
- “…the practice of an executor transferring to himself land of which he is also the beneficiary, in the mistaken belief that it is the only proper way to remove a Registrar-General’s caveat …”
Once an executor-trustee has effectively assented to his own devise or legacy and has finally conveyed to all other beneficiaries everything appropriated to any of them under the transaction in which the assent is given, in my opinion he is functus officio as trustee of the property affected by the trust, and the beneficial and legal estates of the property appropriated to himself vest completely in him. A man cannot be trustee for himself alone. He may be trustee for himself with others, but once his duties to those others have been finally and completely discharged, and he is left with no obligations under the trust but to himself, that trust disappears – Lewin on Trusts 16 th ed 4; Re Cook, Beck v Grant [1948] Ch 212; [1948] 1 All ER 231; Re Annett (Supra) . (emphasis Turner J)
50 The appellant accepted that on the application for the Court to receive additional evidence, it is usual for three conditions to be satisfied. The first is that the additional evidence must be appropriately credible. There is no issue that the Transmission Application would satisfy that condition.
51 The second condition is that the proposed evidence would give rise to a high probability of a different judgment or order: Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444; Foley v Ellis [2008] NSWCA 288 per Basten JA at [7]. If the evidence were available the Court could reasonably take the view that s 11 of the Trustee Act is merely permissive and not mandatory for the properties to have vested in the respondent beneficially. In the state of the competing views outlined in the authorities referred to above, I am satisfied that the appellant has not satisfied this condition. He has not shown that it is highly probable that there would have been no need to establish special circumstances pursuant to s 28(5)(d) of the Act.
52 In any event the appellant had difficulties with the third condition that ordinarily it must be shown that even with the exercise of reasonable diligence, the evidence would not have been available for use at the trial. The additional evidence was available after the evidence had concluded but before the delivery of judgment. The expression “at the trial” means at any stage of the proceedings when evidence might be received: McIntosh v Williams [1976] 2 NSWLR 237 per Samuels J.A. at 258. The evidence was available at the trial. The appellant made a deliberate decision to hold the evidence of the Transmission Application back from the Trial Judge, thus encouraging a judgment to be delivered on the basis that the estate had been fully distributed. The appellant did not call any evidence in support of his application before this Court to explain why he chose not to make application before the Trial Judge to re-open his case. In all those circumstances leave was refused.
Grounds of Appeal
53 As a consequence of the refusal to grant leave to adduce additional evidence, the appellant sought leave to amend his Notice of Appeal to claim that the Trial Judge erred in failing to find the existence of other special circumstances. That leave was granted subject to the respondent being provided with the opportunity to address any additional matters by reason of the late amendment, an opportunity the respondent did not need to take up. The grounds of appeal as argued were, therefore, that the Trial Judge erred:
1. In failing to find special circumstances pursuant to s 28(5)(d) of the Act.
2. In finding (if that is what he did) the appellant had no (financial) need.
4. In not ordering provision in favour of the appellant.3. In finding the appellant had not satisfied the first limb of Singer v Berghouse at 209.
54 The appellant accepts that he must show that the Trial Judge’s decision has miscarried: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 147; Mulcahy v Weldon [2002] NSWCA 206.
55 Ground 1: Although the Trial Judge did not explicitly follow the steps outlined in the Act of firstly deciding whether provision ought be made before moving to consider whether to make an order designating property as notional estate, no complaint was made about that matter. His Honour referred to the matters in s 27 of the Act that had to be considered in determining whether to make an order designating property as notional estate and, although not explicitly stated, concluded that the substantial justice and merits involved in the appellant’s case did not warrant such an order being made. The appellant accepted that a reasonable reading of the Judgment was that his Honour concluded that the appellant may have a case, but not a very strong case for provision; and that the absence of a strong case contributed to the finding of a lack of special circumstances. Although the Trial Judge did not consider each of the claimed special circumstances individually, he did summarize the effect of them, concluding that they “played at the heartstrings”. However his Honour was satisfied that the appellant’s unilateral abandonment of the deceased, when weighed in the balance, meant that the appellant failed to establish “special circumstances” within the meaning of that expression in s 28(5)(d) of the Act.
56 In respect of the principles in House v The King (1936) 55 CLR 499 at 504-505, the appellant did not submit that his Honour fell into error in taking into account the abandonment of the relationship in concluding that there were no special circumstances, but rather submitted that no reasonable tribunal could reach such a conclusion. The appellant submitted that having found that: the deceased knew nothing about the criminality for which the appellant was incarcerated; there was no prejudice in extending the time pursuant to s 16 of the Act; inferentially that the appellant was a lame duck; the estate was large enough to make provision for the appellant; there was no actual prejudice to the respondent; and not having found that the appellant had no need, there were circumstances sufficient to justify a finding of special circumstances.
57 Counsel for the appellant accepted that the Trial Judge’s finding that the appellant abandoned the relationship with the deceased was decisive in reaching the conclusion that the appellant failed to establish special circumstances under s 28(5)(d) of the Act. The appellant submitted that estrangement does not mean that an applicant automatically fails in an application for provision and accordingly it should not mean that an applicant fails to establish special circumstances. In this regard reliance was placed on a number of authorities in which the claimant and the deceased were estranged.
58 Acrimony or estrangement does not necessarily destroy the bonds of parental ties (see Diver v Neal [2009] NSWCA 54 at [27]). The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer at [88]-[94].
59 In Wheatley v Wheatley [2006] NSWCA 262, the Court of Appeal increased the amount awarded to the claimant appellant from $78,000 to $168,000. Although the relationship between claimant and deceased was a very hostile one, Bryson JA (with whom Santow & McColl JJA agreed) found that this hostility by the testator went beyond that of the reasonable or hypothetical testator (In reAllardice, Allardice v Allardice (1910) 29 NZLR 959 at 972-973).
60 Bryson JA found that the testatrix was of “an extremely difficult personality” (at [32]) and that: “her disposition and state of mind were far from those of the wise and just testatrix who is brought into consideration for the purposes of family provision legislation.” (at [18]). Despite the fact that the relationship between the claimant and deceased was a very rancorous one, and there had been no personal contact for 13 years, there had been continuing telephone communication between them, albeit infrequently.
61 The claimant appellant in Wheatley was an invalid, and following a heart attack, was on a disability support pension and suffered from an anxiety disorder. Bryson JA described his home as “in a state of decay, disrepair and dereliction” (at [11]). Whereas, in contrast, the estate was amply capable of absorbing his claim. Noting these difficulties, Bryson JA said (at [21]): “Mr Wheatley was not in a position to make a good discharge of filial duty: in their own way, his shortcomings enhance his claim”.
62 Thus, the nature of his situation in life and the personality of the deceased went some way to explaining the appellant’s acrimonious relationship with her. It was material that the deceased was not entirely blameless in the breakdown of the relationship and that some communication was still ongoing between the deceased and claimant.
63 In Foley v Ellis, the appellant claimant was estranged from her deceased mother for four years prior to her mother’s death. Nevertheless, there had been sporadic and brief telephone contact during that period (see Sackville AJA at [104]). The estrangement was the culmination of Family Court proceedings in which custody of the appellant’s children had been opposed not only by her husband but also by the deceased. Although it could not be said that the claimant was blameless in the breakdown of her relationship with her mother, Sackville AJA acknowledged that it was the product of trauma experienced by the claimant, which was at least understandable in the circumstances (see [47]-[48] and [104]-[105]). Indeed, his Honour went on to say at [111]:
As regrettable and as destructive as the Family Court proceedings might have been, blame for them cannot be laid wholly at the appellant’s door, as a reading of Lawrie J’s judgment demonstrates.
64 In Diver v Neal the claimant successfully challenged the adequacy of the bequest of $20,000 under the Will and was awarded $60,000 by the Court of Appeal. The relationship between the claimant, who was the step-daughter of the deceased, though somewhat distant or strained, could not be described as acrimonious. Basten JA held at [33]:
This was not, as might be inferred from [the Trial Judge’s] reasoning, an ephemeral relationship abandoned long ago by mutual indifference or persuasion. It was a long-standing relationship, the terms of which evolved, no doubt with some weakening of the bonds, as circumstances took them apart.
65 In the last 18 months of the deceased’s life, the claimant ceased to have any contact with the deceased (per Basten JA at [49]). The deceased wrote three reasons, signed on the day of his Will, as to why the claimant should not be entitled to any more than what was provided for, all three of which related to the plaintiff’s failure to keep in contact with him, and not any hostility or rancour in their relationship. Indeed, the fact that the deceased had left the claimant $20,000 by his Will, provided an acknowledgment by him that there was an ongoing relationship between them (per Basten JA at [31]).
66 In Palmer v Dolman; Dolman v Palmer, the claimant was the daughter of the deceased. She had originally been left out of her father’s Will and her claim was dismissed by Macready M (as his Honour then was) by virtue of failing the jurisdictional requirements of s 9(2) of the Act. The Court of Appeal, in finding that the claimant did satisfy s 9(2), awarded her $655,000, from the estate (which, not including legal costs, amounted to between $4-$5 million).
67 Immediately prior to his death, the deceased made a statutory declaration in which he said:
I have made no provision in my will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital.
68 In accepting that the claimant appellant did nonetheless satisfy the jurisdictional requirement, the Court considered the nature and underlying reason for the claimant’s estrangement from her father. The deceased separated from his wife when the claimant was 12 years old and divorced in 1991. The claimant went to live with her mother but the deceased kept in contact with the claimant by sending cards to her. Sometime in 1993 or 1994 the claimant wrote to the deceased, indicating that she wanted nothing more to do with him and not to contact her anymore. Other than one incident where she chanced upon him whilst driving but did not stop, the claimant never saw the deceased until immediately prior to his death.
69 Ipp JA (with whom Tobias and Basten JJA agreed) was satisfied that the claimant was fearful of her father. She regarded him as demanding, critical, unpredictable and said that she felt she was never good enough for him (see Ipp JA at [92]-[95]). Thus the nature of the estrangement was one arising from insecurity or fear. In analysing the underlying cause for this breakdown, Ipp JA drew attention to the parsimonious attitude of the deceased to the claimant’s needs when she was a child, namely, that he paid $25 per week by way of child support in circumstances where her financial needs were dire whereas he was financially comfortable (see Ipp JA at [96]-[100]). Like in Foley v Ellis, the Court could understand the underlying reasons for the estrangement and recognised that the deceased was by no means blameless.
70 In these proceedings, there was no claim or submission by the appellant that his Honour had failed to give sufficient reasons for his conclusions. As the passage from Campbell J’s judgment in Cetojevic v Cetojevic makes clear, the appellant was obliged to establish circumstances beyond the ordinary circumstances. He was required to establish something "special". The Trial Judge accepted that his circumstances played at the heartstrings but clearly concluded that they did not amount to "special circumstances" because there had been a deliberate abandonment by the appellant of his relationship with the deceased. The present case is distinguishable from those cases relied upon by the appellant in that this was a unilateral abandonment of a father for 14 years from when he was aged 76 until he died at aged 90 with a single abusive encounter in that period.
71 It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.
72 It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.
73 These observations are made in the context of the exercise of a discretion as to whether provision “ought” be made. The Trial Judge was considering the abandonment of the relationship as a factor in determining whether the appellant had established “special circumstances”. As I have said earlier it was not suggested that the consideration of this factor in this exercise was inappropriate, but rather that no tribunal could reasonably have reached the conclusion that special circumstances had not been established. The Trial Judge was entitled to conclude that the unilateral abandonment of the deceased, when weighed in the balance, meant that the appellant had failed to establish “other special circumstances” under s 28(5)(d) of the Act. Even if it had not been necessary for the appellant to establish special circumstances, his unilateral abandonment of the deceased would have been a factor to have been taken into account in deciding whether provision "ought" be made. In my view that abandonment would have been a decisive factor against the exercise of discretion in the appellant's favour.
74 This conclusion means that it is unnecessary for the other grounds of appeal to be considered. However I should say that as to Ground 2, I do not accept that the Trial Judge found that the appellant did not have a financial need, but rather that during the period of his incarceration he would not require access to funds for his day-to-day living.
75 I propose the following orders:
1. Leave is granted under s 5 of the Felons (Civil Proceedings) Act to bring the appeal.
2. Leave to adduce additional evidence is refused.
3. Appeal is dismissed.
4. Appellant to pay the respondent’s costs of the appeal, subject to any application for a different costs order to be made by the filing of a Notice of Motion within 14 days of today.
76 HANDLEY AJA: I agree with Bergin CJ in Eq.
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