Forrest v Forrest
[2002] NSWSC 46
•13 February 2002
CITATION: Forrest v Forrest [2002] NSWSC 46 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 03018/01 HEARING DATE(S): 4th February 2002 JUDGMENT DATE: 13 February 2002 PARTIES :
James Armstrong Forrest
Ian Nimmo ForrestJUDGMENT OF: Gzell J at 1
COUNSEL : Ms E Glover for the Plaintiff
Mr A M Gruzman for the DefendantSOLICITORS: CATCHWORDS: Family provision - application by adult male - no adverse inference from lack of corroboration - application dismissed LEGISLATION CITED: Family Provision Act 1982 CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Re Fulop Deceased (1987) 8 NSWLR 679
Kristl v Wallington NSWCA, 29 August 1995, unreported
Shearer v The Public Trustee [1998] NSWSC 87
Commercial Union Assurance Co of Australia Ltd v Furrcom Pty Ltd (1991) 22 NSWLR 389DECISION: Application dismissed
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
03018/01
13 February 2002GZELL J
Judgment
This is an application under section 7 of the Family Provision Act 1982 (‘Act’) brought by an adult son of the late Margaret Aileen Forrest (‘deceased’) who died on 20 August 2000. By her will dated 2 May 1997 she appointed her adult son, the defendant, executor and devised and bequeathed her entire estate to him. At the time the application came before me the estate consisted of a house at Heathcote, Sydney (‘Heathcote house’) in which the defendant resides which has an agreed value of $400,000.00, and cash deposits of approximately $15, 500.00. The estate owes the defendant $12,357.94 for expenses incurred by him on its behalf.
2 The plaintiff was born on 23 March 1929. He was 16 when his father died. The deceased did not remarry. The plaintiff was the eldest of three children: himself, the defendant who was born on 17 December 1933 and Louise Margaret Carruthers aged about 55 at the time of hearing.
3 The plaintiff was at boarding school when his father died. The evidence of the defendant that the plaintiff had been expelled from a school at Kogarah, Sydney and was sent to boarding school as a result, was not challenged by the plaintiff. Nor was the evidence of the defendant that the plaintiff left boarding school soon after his return there following his father’s death and that he stole and sold books and ornaments from the Heathcote house which upset the deceased.
4 When he was about 16 or 17 the plaintiff left home, went to Queensland, then joined the navy, then ran away and returned to the Heathcote house. Arrangements were made with the navy by the plaintiff’s grandmother who organised that he take up a teacher traineeship under guarantee which the grandmother was forced to pay out when the plaintiff failed to complete the course.
5 The defendant’s evidence that the plaintiff again returned to the Heathcote house for a short time but then left, taking the deceased’s savings of a few hundred dollars was not challenged. The plaintiff spent the next four to five years cane-cutting in Queensland. The defendant said that the deceased had no word from the plaintiff during this period. This assertion was not challenged except by a general statement that the plaintiff spoke regularly to the deceased during her lifetime both in person and by telephone. The plaintiff’s evidence of background events commenced at a later time when he had established a successful poster business in New Zealand. I accept the evidence of the defendant that the deceased received no communication from the plaintiff while he was cane-cutting in Queensland.
6 In cross-examination the defendant displayed a lack of precision in relation to dates. Nonetheless, I accept his evidence that the plaintiff paid a visit on the deceased in about 1953 or 1954 by which stage he was married and had a young daughter. This evidence of the defendant was not challenged by the plaintiff.
7 The defendant gave evidence that no further contact was made by the plaintiff with the deceased for another period of four to five years. That contact was about the time when the plaintiff and his wife, Bernice, separated and coincided with detectives coming to the Heathcote house looking for the plaintiff. These events, he said, upset the deceased. She maintained contact with Bernice until the time of her stroke, two months before her death. In cross-examination the defendant accepted that he was overseas at this time and was relying upon what he was told by the deceased. Evidence of statements by the deceased are admissible in these proceedings under the specific exception to the hearsay rule in section 32(2) of the Act.
8 Three years later, the plaintiff paid a visit to the deceased and told her that he was going to New Zealand with his wife Patricia. No further contact was had for a further period of three years.
9 Having established a successful poster business in New Zealand, contact with the deceased became more frequent. The deceased spent five to six months with the plaintiff and his wife when their daughter, Joanne, was two years old. The plaintiff provided for the deceased’s upkeep during this period and gave her money when she left to return to Australia. Over the 10 year period that the plaintiff lived in New Zealand the deceased made a minimum of four visits of lengthy duration.
10 It was put to the plaintiff in cross-examination that the purpose of the visits was for the deceased to mind the house while the plaintiff and his wife attended to their business. The plaintiff denied this assertion saying that his business required him to make overseas trips but in his absence for this purpose his wife was present. Having observed his demeanour in the witness box I accept this evidence.
11 From New Zealand the plaintiff moved to the Gold Coast in Queensland where extended visits by the deceased continued. In about 1995 the plaintiff was in financial difficulties. He sold his New Zealand business for its carry-forward tax losses for NZ$87,000.00. The house at the Gold Coast was sold and the plaintiff acquired a residence, in which he still resides, at Tully Heads in North Queensland. The plaintiff said that the deceased was unable to travel long distances to see him after 1995.
12 The plaintiff and his wife Patricia separated which, the defendant observed, upset the deceased who maintained contact with Patricia until the time of her death. The plaintiff last saw the deceased in 1997.
13 The plaintiff formed a de facto relationship in 1992 which continues at the present time. His children, Claire Louise Forrest about 44 years old, James William Forrest about 40 years old and Joanne Margaret Forrest about 33 years old do not live with him.
14 The plaintiff gave a half interest in the Tully Heads house to his de facto partner. He values the property today at somewhat in excess of $100,000.00. The property is mortgaged to a limit of $20,000.00 over five years. $15,671.49 is currently owing on that mortgage. The plaintiff has a credit balance in his bank account of $1,016.45. He owns a motor vehicle worth approximately $12,000.00 and some minor assets worth a further $11,200.00. He estimates his fortnightly expenses at $288.00 and is in receipt of an old age pension of $331.80 per fortnight.
15 The plaintiff is in poor health. He has had surgery to remove approximately 80% of a cancerous stomach. His prognosis is guarded. He suffers from emphysema and has an enlarged heart. His de facto partner receives a carer’s pension for looking after him of approximately $330.00 per fortnight. She is 44 years of age and in poor health. She is being treated for a degenerative disc and depression. While the plaintiff was somewhat garrulous in the witness box, I found him to be precise in his understanding of figures in particular. I accept his evidence with respect to his needs and those of his de facto partner.
16 I found the defendant’s recollection of events, particularly dates, to be hazy. I prefer the evidence of the plaintiff where it conflicts with that of the defendant with respect to the contact between the plaintiff and the deceased from the time he had successfully developed his New Zealand poster business.
17 Margaret Louise Carruthers met the plaintiff at Sydney Airport and brought him to the court. She was outside the court room during the hearing.
18 The defendant was born on 17 December 1933. He was 10 when his father died. He left school at 16 and attended East Sydney Technical College while working at Farmers. He was then living at the Heathcote house.
19 From 1956 to 1968 the defendant was overseas returning, with a couple of exceptions, each Christmas to visit the deceased.
20 The defendant said that when the deceased made her first visit to New Zealand in 1968 he was living at the Heathcote house. When it was put to him in cross-examination that his sister and husband were then living in the two bedroom house, he said that if he were not living at home he was living near his employment. When his sister and husband moved out of the Heathcote house in 1969 or 1970, however, the defendant returned and, save for a short period of about six months, he has lived there ever since. Except for periods in 1978, 1980, 1993 and 1995 when the defendant’s sister took the deceased overseas on trips, the defendant has contributed financially to the support of the deceased who was in receipt of an old age pension.
21 The defendant paid for the kitchen of the Heathcote house to be renovated with a new refrigerator, stove and the like. He paid for a new back verandah and a new toilet and laundry. He paid for the construction of a new double garage. He paid for the house to be painted on several occasions and for the removal of trees and he generally paid for the maintenance and repairs and upkeep of the property. In the last 10 years of the deceased’s life she could not be alone and needed to be cared for. The defendant stopped working, although he picked up some small freelance work, in order to care for the deceased and in the last three years of the deceased’s life he received a carer’s pension which he used for the upkeep of himself and the deceased, using her pension for clothes, trips and gifts for the benefit of the deceased.
22 The defendant bought a Mitsubishi Lancer wagon for $23,000.00 in 2000 for the purpose of driving the deceased around. In his affidavit of 21 January 2002 he stated that the motor vehicle was worth $4000.00 to $5000.00. He conceded in cross-examination that it was worth more than this. In that affidavit he acknowledged savings of $40,000.00 together with some personal effects that are of no value, 2000 Telstra Corporation shares and 100 NRMA Insurance Ltd shares. In an affidavit of 4 February 2002 he deposed to savings of $80,000.00. He was unable to explain this discrepancy.
23 The defendant receives an old age pension of $330.00 per fortnight. He says that he expends all of that together with all his investment earnings and is eating into capital to fund his maintenance and that of the Heathcote house.
24 The defendant gave the deceased’s jewellery to his sister as the deceased had wished. He has made a will whereunder the entirety of his estate will go to his sister’s children. The defendant never married.
25 The defendant is also in poor health. He has had a cancerous bowel and his testicles removed. He has an insertion through his side for passing waste. His life expectancy has been shortened. He will need a carer or be hospitalised.
26 The only, ‘eligible persons’ as that term in defined in section 6(1) of the Act are the plaintiff, the defendant and Margaret Louise Carruthers.
27 Section 7 of the Act provides that, subject to section 9, if the court is satisfied that the person applying for provision is an eligible provision it may order that such provision be made out of the estate of the deceased 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.
28 Section 9(2) of the Act provides that the court shall not make an order under section 7 unless it is, relevantly for present purposes, satisfied that provision (if any) made in favour of the eligible person by the deceased inter vivos or out of the estate is, at the time the court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.
29 The statutory provisions establish a two-stage process. The first requires a determination of whether the applicant has been left without adequate provision. The second, which only arises if the first determination is in favour of the applicant, requires the court to decide what provision ought to be made for the applicant (Singer v Berghouse (1994) 181 CLR 201 at 208).
30 It has been said that 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 the bounty of the deceased. It has been said that this process is not aided by references to moral duty or moral obligation which may amount to a gloss on the statutory language (Singer v Berghouse at 209-210. See also Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24).
31 Reference was also made during argument to Re Fulop Deceased (1987) 8 NSWLR 679, Kristl v Wallington, NSWCA, 29 August 1995, unreported and Shearer v The Public Trustee, [1998] NSWSC 87. In my view, however, these authorities do not add to the above discussion of the function I am to perform.
32 Counsel for the defendant submitted that I should draw adverse inferences against the plaintiff for his failure to call Margaret Louise Carruthers, his daughter Joanne, or any other person to corroborate his testimony. Reliance was placed upon an observation by Handley JA in Commercial Union Assurance Co of Australia Ltd v Furrcom Pty Ltd (1991) 22 NSWLR 389 at 418 that the court should not draw inferences favourable to the insured in that case where no attempt was made to prove the matters by direct evidence. That observation arose in the very different context of a failure to adduce evidence of the steps taken to arrange alternative insurance cover when the availability of such cover on more desirable terms was an issue in the trial. In the instant circumstances direct evidence was given by plaintiff and defendant and in areas of conflict I have indicated my findings of fact based upon my observations of the witnesses before me. I reject the submission that I should reject the plaintiff’s evidence for failure to call corroborative evidence.
33 The plaintiff and defendant adduced evidence of conflicting statements by the deceased as to the effect of her will. The plaintiff said that the deceased had told him that she had left everything three ways. The defendant said that the deceased had told him that she had left the house to him. I do not find it necessary to resolve this conflict. Indeed no conflict may exist. The deceased may have said that she left her estate three ways and subsequently decided to leave the house and the relatively small amount of additional assets to the defendant, albeit that the defendant was not aware of any previous will.
34 I do not regard the early history of the relationship between the plaintiff and the deceased as significant. Whatever the view the deceased then had of the plaintiff, a steady relationship came into existence after he had established his poster business in New Zealand. Indeed, the defendant’s counsel did not press the early history as a matter to which I should accord significance.
35 The major asset in the estate is the Heathcote house. With an early exception it is the only residence the defendant has had since returning from overseas in 1968 to tend to the deceased. He has paid for significant improvements to the premises. He forsook employment to act as carer to the deceased and he utilised his meagre income for the upkeep of both of them.
36 On the other hand, the plaintiff had intermittent contact with the deceased from the time he left home. From the failure of his earlier successful poster business he was able to salvage the premises at Tully Head, a 50% interest in which he choose to give to his de facto partner.
37 There is no doubt that the plaintiff is in poor circumstances both physical and financial. But so is the defendant.
38 Weighing all the circumstances of both parties, I have concluded that the exclusion of any provision for the plaintiff from the estate of the deceased does not constitute inadequate provision for the maintenance, education and advancement of the plaintiff.
39 I dismiss the application. I reserve the question of costs until I have heard submissions from the parties.
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