Foster v Foster

[1999] NSWSC 1016

CITATION:	Foster v Foster [1999] NSWSC 1016
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	2040/98
HEARING DATE(S):	28, 29 September 1999
JUDGMENT DATE:	8 October 1999
PARTIES :	Donald Warren Foster (P) Charmain Leah Foster (D)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	(P) M S Willmott (D) J R Wilson
SOLICITORS:	(P) Eric Butler (D) Mallesons Stephen Jaques
CATCHWORDS:	Obligation for frank disclosure- Totality of relationship considered in determining s 9(3) factors- Extent of provision by parent to a child.
ACTS CITED:	Family Provision Act, ss 7, 9(3)
CASES CITED:	Arratoon v Arratoon (Bryson J, 31 July 1995, unreported) Fiorentini v O'Neill (C/A, 4 December 1998, unreported) Fraser v Venables (Master McLaughlin, 30 September 1998, unreported) Kleinig v Neal [1981] 2 NSWLR 532 Singer v Berghouse (1994) 181 CLR 201
DECISION:	See para 78

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ACTING MASTER BERECRY

Friday 8 October 1999

2040/98 - FOSTER v FOSTER

JUDGMENT

1    ACTING MASTER: The plaintiff, by summons filed on 16 April 1998, seeks an order that provision be made out of the estate of his father, the late Donald Eli Foster pursuant to s 7 of the Family Provision Act.
2    The deceased died on 9 January 1998 aged 80. The plaintiff is the sole surviving child of the deceased, his older brother Graham having died on 31 August 1994. The plaintiff, therefore, is an eligible person pursuant to s 6(1)(b).

3    The defendant is the executrix of the deceased’s estate. She is a daughter of the plaintiff and therefore a grandchild of the deceased.

HISTORY

4    The plaintiff was born on 12 April 1944. He continued to reside with his parents at the family home until 1970 when he married. There appears to be nothing remarkable about his relationship with his parents as a child.

5    Between 1970 and 1989 there were weekly family visits by the parents which usually included a barbecue. Those visits took place usually on a Friday night. Every Saturday, the plaintiff attended his parents’ home and helped around the house. In 1971 he painted the kitchen. In 1979 he assisted the deceased to build a fern house and assisted him with roofing work and painting. In 1988 he and his brother painted the outside of the house and he replaced the front fence.

6    During this period he and his wife had three children. The defendant is the second eldest child. There is evidence that the defendant was the favourite grandchild of the deceased.

7    In 1980, the deceased transferred to the plaintiff debenture stocks worth $40,000. The purpose of the transfer appears to have been to enable the deceased to reduce his tax burden. The plaintiff’s evidence is that at the time the debenture stocks were registered in the plaintiff’s name the deceased said to him, “When you receive the interest from the stocks use part of the money to pay the income tax on the income and give the balance to me.”

8    This arrangement continued until 1989. In 1981, the plaintiff received a loan from the deceased in the sum of $10,000. The purpose of the loan was to allow the plaintiff and his wife to discharge the mortgage they had on their home. There was an agreement with the deceased that the plaintiff would pay interest on the loan at 8%. According to the plaintiff’s evidence, the deceased requested the plaintiff to pay out his mortgage with the then mortgagee and take a loan from the deceased. That way the deceased could obtain interest without declaring it to the Deputy Commissioner for Taxation. The deceased also proposed that the interest that the son paid on the loan be the same commercial rate that the bank had applied to the mortgage. At the same time he lent a further sum of $9,000 to the plaintiff. The purpose of this loan was to enable the son to build a swimming pool. Once again agreement was reached on the interest rate which was 11%, and once again, it appears to have been a commercial rate.

9    Further to the agreement the plaintiff was to pay off the loan at the rate of $50 per week. This was done each Friday or Saturday when he visited his parents. Of that $50, $30 represented the principal and interest payments on the $10,000 loan, and $20 represented interest only on the $9,000 loan.

10    In August 1982 the deceased retired. It would appear that he became eligible for an age pension. This meant that by having these undeclared loans, he was able to maintain the maximum benefit of his pension entitlements as well as reduce the amount of taxation that he was liable to pay.

11    In 1989 the plaintiff’s mother was diagnosed with liver cancer. She died in December of that year. After the death of the mother, the plaintiff and his wife were helping the deceased clean up around the house. During this process, it came to his knowledge that the deceased had $20,000 in cash in the safe in his house. There was some discussion about the $20,000 and it was agreed that the money would be placed in the bank. The deceased requested the $20,000 be banked at the Commonwealth Bank at Jannali in the plaintiff’s wife’s name. That was done.

12    After the plaintiff’s mother died, the relationship with the deceased deteriorated. There was some suggestion that there may have always been friction, but a rein was kept on that friction by the presence of the mother. Once she had died, there were no restraining influences. However, there really is no evidence which supports that suggestion.

13    After the death of the mother there were two incidents which appeared to have doomed the relationship betweeen the plaintiff and the deceased.

THE “GOLDEN” BROOCH

14    Although no value has been attributed to the brooch, it became a significant factor in the continuing relationship of the plaintiff and the deceased. The evidence is unclear precisely how the plaintiff’s wife came into possession of the brooch. The plaintiff’s evidence, although none was given by his wife, was that shortly after the death of his mother, the deceased, in the presence of the plaintiff, his wife and the plaintiff thought, his brother, and an old friend of his mother’s from the north coast of New South Wales, gave the brooch to the plaintiff’s wife.

15    There is, annexed to the affidavit of the defendant sworn on 27 August 1998, a letter written by the deceased dated 6 August 1982, although it is conceded that the date is wrong and the year should be “1992”, referring to the brooch and some money. The note, in part, says as follows:

“The reason I am only leaving my son Donald Warren the sum of $1,000 is after the death of my wife on the 3rd December 1989 a gold brooch was missing. On Christmas Day that year his wife was wearing it.
Late in January I went to there (sic) home and asked for the brooch.....”.

16    Affidavit evidence by the deceased’s sister Nataline Mavis Kennedy sworn on 17 September 1999 refers to a conversation she had with her brother shortly after Christmas in 1989. The deceased said to his sister, “I saw Warren and Lorraine on Christmas Day. Lorraine was wearing Verlie’s brooch and I asked for it back. I also asked for repayment of the money I lent him. Warren said to me ‘I’m not going to give the brooch back. It was given to me and I’m not going to repay the loan. Don’t come back here again.’”

17    The plaintiff’s evidence differs in a number of respects to the note and the evidence of his aunty. Firstly, he said that the brooch was given by the deceased to his wife, not to him. Secondly, he said that the deceased asked for it to be returned on Christmas Day, not in late January. Thirdly, he denies that he told the deceased not to come back again.

18    In his evidence, the plaintiff said that he informed the deceased that he could not return the brooch as the brooch was not a gift to him but to his wife and it was a matter between the deceased and the plaintiff’s wife as to what was to happen to the brooch. The plaintiff took the matter no further.

19    This, of course, was a time shortly after the death of the deceased’s wife. The deceased was probably still in an emotional state after her death. However, to be fair to the plaintiff, there is no evidence of that. Nevertheless, the plaintiff does not appear to have done anything to placate the deceased either by discussing the matter with his wife or trying to arrange for the two of them to talk through the problem with the brooch. He did nothing. It seems to me that he could have been a little more conciliatory and tried to assist the deceased at a difficult time in his life. He treated the whole incident as if it was an arm’s length agreement, but in reality it wasn’t. The brooch wasn’t given to a third party unrelated to either of them; the brooch was given to the plaintiff’s wife, a member of the family and a matter that could have been sorted out by the family by the intercession of the plaintiff.

20    To my mind, taking a passive stance really didn’t help the situation.

THE RETURN OF THE DEBENTURE STOCK AND MONEYS

21    In 1989, the plaintiff repaid the $9,000 loan to the deceased. At about this time the plaintiff was made redundant and out of the moneys he received because of the redundancy he was able to pay out that loan to the deceased. His evidence is that from the payment out of the loan the deceased was not happy because he was going to miss out on 12 months’ interest.

22    In 1990 there was a discussion between the plaintiff and the deceased about their financial arrangements. It seems that the plaintiff and his wife no longer wanted to have the responsibility of the debenture stock and the $20,000. The plaintiff’s evidence is that he approached the deceased and advised him that his wife was about to start work. Therefore, because the money was in an account in her name, any interest on the $20,000 would be subject to tax. The tax liability would fall to the wife. Prior to her working any interest from the $20,000 would have been under the tax threshold and therefore not liable to tax.

23    He also advised the deceased that the tax payable on the debenture stock was attracting a rate at the higher scale, whereas the plaintiff’s wage and salary income attracted a lower rate. This was having an impact on the plaintiff’s liability for taxation. It would appear that the deceased either couldn’t understand what was being said to him, or refused to understand. The plaintiff’s evidence is that the deceased’s response to this was, “You and Lorraine are stealing from me. You are not giving me my just rewards.”

24    As a result of that conversation and the steps taken by the plaintiff and his wife, the relationship deteriorated further. Some months after that conversation and it is not known when that conversation took place other than in 1990, the plaintiff approached the deceased again and told him that either they would be paying back or transferring the assets that they held on his behalf because everything was becoming too difficult.

25    Shortly after the conversation, the plaintiff transferred to the deceased the $40,000 debenture stocks, paid him the balance of $1,300 owing on the $10,000 loan and returned the $20,000 that the wife was holding in her name.

HISTORY POST 1989

26    After the two incidents above, the relationship between the plaintiff and the deceased had deteriorated quite markedly. Although the plaintiff continued to visit the deceased, and initially those visits were on a weekly basis, he found that by the deceased’s non-responsive attitude to him, the deceased no longer showed any interest in him or wished to see him.

27    At Christmas 1991, the plaintiff invited the deceased to spend Christmas with the family. However, the deceased declined the invitation.

28    In 1992, there was an incident between the plaintiff, his wife and the defendant. Evidence was given about the alleged assault by each of them. The parents’ evidence was totally different to that of the defendant. I found the plaintiff’s wife to be honest and forthright in the answers that she gave in cross-examination and in relation to this particular incident I favour the evidence given by the parents over that given by the daughter.

29    An outcome of this incident was that the daughter left home. It appears she became closer to her grandfather and there was a deterioration of her relationship with her parents.

30    The plaintiff’s evidence was that the last five or six years of the deceased’s life, that is, from a period sometime in 1992/1993 whilst he no longer attended his home because of the reception he had received in 1991, he regularly telephoned him. His evidence was that on the occasions when he telephoned the deceased the call was terminated by the deceased hanging up.

31    In cross-examination, it revealed that the plaintiff was less than frank in this aspect of his evidence. It turned out that “regularly” meant “I regularly rang my father on his birthday”. In other words, for the last five or six years of the deceased’s life, he phoned him approximately once a year.

32    At the time of the deceased’s eightieth birthday, the plaintiff phoned him to wish him happy birthday. However, that call appears to have been a disaster. The evidence was that the telephone call took no more than 30 seconds. The plaintiff’s evidence was that the deceased, on recognising the son’s voice, said to him, “I’m going blind but you don’t care at all for me.” The plaintiff responded “I wish you well for your birthday” then the deceased hung up.

33    It was suggested on behalf of the defendant that this was an opportunity for the plaintiff to make amends for the past, to try to achieve some reconciliation with the deceased. However, it is difficult to attribute any blame to the son for not pursuing a reconciliation with the deceased at this point in time.

34    There is evidence of the defendant that on numerous occasions the deceased told her that he wanted nothing to do with the plaintiff. The deceased appeared to have become fixed in his ideas about the plaintiff and as far as he was concerned, the plaintiff no longer existed. In hindsight, one may be able to say that the son should have and could have done a lot more than he did; once again he just appears to have had a passive role over the last five or six years of the deceased’s life. If the deceased was happy to renew a worthwhile relationship, good and well - if he wasn’t the son wasn’t going to do much about it.

35    What is unclear is what were the family dynamics during this period of time. The plaintiff may have had good reasons why he was unable to reconcile with the deceased. It seems to me that on the evidence, that one could not blame the son for the deterioration of the relationship and the failure of reconciliation. The deceased seems to have been just as much, if not more so, responsible for the state of affairs.

36    During this period of time, the plaintiff’s evidence is that he asked his daughter, the defendant, how the deceased was. The daughter’s response appears to have been “Why don’t you ring him yourself?”

37    So a situation had arisen where there had been a complete breakdown of the relationship between the plaintiff and the deceased and the plaintiff and the defendant.

THE PARTIES

38    In Fraser v Venables (30 September 1998, unreported), Master MacLaughlin said, “It cannot be emphasised too strongly that an applicant seeking an order for provision under the Family Provision Act has an obligation to place before the court information as full and as frank as possible concerning the applicant’s financial and material circumstances (which include the financial and material circumstances of the applicant’s spouse or de facto partner).”

39    Generally I found the plaintiff to be a credible witness. However, there were certain aspects of his evidence which lacked frankness and he appeared to be evasive. He failed to disclose evidence relating to his superannuation entitlements. Details of those entitlements only came to the attention of the Court as a result of subpoenas issued on behalf of the defendant. It may be said in his favour that he was unaware of the requirement to provide such financial information as his entitlement to the superannuation policies is not available to him at the present time.

40    His evidence concerning the value of his household contents cannot be accepted. For the purpose of these proceedings, the total value given for household contents was $30,000. However, the defendant produced evidence which shows for the purpose of insurance the plaintiff has insured household contents for $175,000. The explanation given by the plaintiff was that the reason for the increase was due in part to the fact that he is holding at his premises furniture belonging to another daughter who is currently residing overseas. However, no evidence was given as to how much of the value is to be attributed to his goods and how much is attributed to the daughter. There was no evidence given concerning the furniture that belongs to the daughter.

41    The defendant, in cross-examination, appeared to have difficulty in understanding some of the questions that were put to her. In that regard I give her the benefit of the doubt, but she generally had difficulty with the concepts that were associated with the questions. However, in relation to questions put to her concerning the income and assets of the husband and their interest in a company called Foster & Anthony, I found her to be evasive and unconvincing.

42    In relation to the incident involving her parents, her evidence was in conflict with that of the parents and I accept their evidence, mainly based on the forthright way in which the mother responded to questions under cross-examination.

ASSETS

43    As at the date of hearing, the estate comprised of the following assets:

16 Vera Street, Earlwood approximately $410,000

Westpac Banking Corporation 1,900

Moneys in the solicitors’ trust account 12,000

Esanda Debentures 70,000

Cambridge Credit Corporation Ltd Debentures - not known

Motor vehicle - estimated 12,250

Total $486,761

44    The plaintiff’s financial position is as follows:

Assets jointly owned with wife - 81 Carina
Road, Oyster Bay approximately $415,000

41 Hiliar Avenue, Blackheath 132,500

Two motor vehicles 14,000

Personal and household property - estimated 175,000

Cash offset account 19,000

45    Assets of the plaintiff not held jointly with his wife:

Shares $26,095

Superannuation entitlements approximately $199,000

46    The wife’s assets, assets not held jointly with the plaintiff:

Shares $2,624

Superannuation entitlement of approximately $31,000

47    The liabilities of the plaintiff and his wife are as follows:

Mortgage approximately $154,000

Credit card debts 7,200

An approximate total of $161,000

48    The taxable income for the plaintiff and his wife for the year ended 30 June 1999 was $63,285. Their combined net income was approximately $52,000 per year; their expenses approximately $46,000 per year, leaving them with a surplus of just in excess of $100 per week.

49    The assets of the defendant and her husband are as follows

140 Mallett Street, Camperdown $260,000

(18 months ago the property was valued at that
amount. It is arguable that it has increased in
value since that time)

Motor vehicle 6,000
Furniture and personal effects 33,000

Life assurance 55,000

Savings 1,200

Total assets approximately $355,000

50    Liabilities:

Mortgage $130,000

Loans 29,000

Credit cards 12,000

Total liabilities approximately $172,000

51    The joint expenditure and income for the defendant and her husband is $6,450 per month. Their joint expenditure is approximately $6,800 per month, thus showing a deficit of approximately $350 per month. Future major expenses including renovations and car repairs have been estimated at $12,500.

52    Evidence was given that during the deceased’s lifetime the defendant received approximately $60,000 from him.

53    In Singer v Berghouse (1994) 181 CLR 201 at p 209, when on determining an application under the Act, the Court must take a two stage approach. The first stage involves consideration of whether or not inadequate provision has been made for the plaintiff. This requires an assessment of whether provision was inadequate or what in all the circumstances was a proper level of maintenance appropriate for the plaintiff having regard to his financial position and the size of the estate. The totality of the relationship between the plaintiff and the deceased and the relationship of the deceased and other persons having legitimate claims upon his bounty. The second stage involves similar considerations, that is an assessment of what the proper level of maintenance and what would be adequate provision.

54    There is no dispute that the plaintiff is an eligible person. He qualifies by reason of s 6(b). There is no dispute that no provision was made for the plaintiff under the deceased’s will. The question becomes whether or not provision should be made for him, having regard to the provisions of s 9 sub-section (3).

55    The assets and liabilities of the plaintiff and his wife have been set out earlier in the judgment. It is clear from those assets that the plaintiff and his wife are reasonably well off. The one dark cloud on the horizon is the fact that his current employment will end some time in the next six months. He has received a letter indicating that he will be made redundant within that period of time. He is currently 56 years of age. Once redundancy takes place he will be entitled to draw on his superannuation benefits and it is suggested that his wife is also in a precarious position in relation to employment. However, there was no evidence in relation to that and she is no more secure or less secure than any other person in the workforce today.

56    The plaintiff has put on evidence which indicates that he suffers from back problems and has bilateral frozen shoulders. These complaints will limit the type of employment that he will be able to undertake in the future. It is also likely to limit the amount of work that he will be able to do around the home.

57    Evidence was given that there was a possibility of employment at Pagewood. The company which he works for, Rothmans, is merging with British American Tobacco Australasia. It is not guaranteed that he will obtain a position at Pagewood, and according to his evidence, there will not be a position available at that plant which is comparable to the present position he holds. Therefore, with the restriction on the type of physical activity he can do, a lack of experience and skills in other areas of employment, together with his age, will limit his competitiveness for those positions that are available.

58    By marshalling his assets, he would be in a position to be liability free. However, to do that would mean either selling the Blackheath property and discharging the mortgage or alternatively, cashing in his superannuation once redundancy takes effect and paying out the mortgage and the credit card debts and then using the balance towards the renovations that are required for the Oyster Bay home or to invest that balance and put the income earned from the investment towards their day to day living expenses.

59    It is submitted on behalf of the defendant that there would be sufficient money available from such a fund together with the income his wife earns and the income generated by Blackheath to enable them to continue to live at a reasonable level. However, if the Blackheath property is sold, that one income stream dries up. If his wife is made redundant or ceases to work because of medical reasons (there was some evidence about her medical condition), their income would be severely diminished.

60    Whilst the plaintiff appears to have had three overseas trips in the last five years, there was no evidence given about the destination of his travels. It is therefore not clear whether those trips involve short distances such as New Zealand or Singapore or whether they were to North America or Europe. In any event, it doesn’t necessarily follow that he is living a luxurious lifestyle and is not in need of some support.

61    The defendant and her husband have a reasonable level of income. They also, however, have a large mortgage on their Camperdown property. According to her evidence, she has expectations of having children at some stage. If that event happens, there will, at least for some time, be a loss of income. The defendant has already received approximately $60,000 from her grandfather, the deceased. She is the sole beneficiary under his will. Of course, the deceased was entitled to dispose of his assets in whatever way he saw fit and his election was to give all of his estate to his granddaughter, the defendant.

62    There is evidence from the defendant, and it is not controversial, that during the last six years of the deceased’s life, she was of great comfort to him. The evidence of the deceased’s sister was that the defendant was a tremendous help to him. The defendant organised and hosted his eightieth birthday at her home. Similar evidence is contained in the affidavit of Edwin Arthur Hyland of 16 September 1999.

63    The defendant’s evidence was that she had a close and loving relationship with both her paternal grandparents, and of course that continued after the death of the grandmother in December 1989. Her evidence, and it was not strongly contested, was that she became his main carer in 1994 when the plaintiff’s brother died she looked after him for two weeks after a heart attack, and after he lost his sight she took over the responsibility of paying his bills, taking him shopping, taking him to doctors and generally looking after his well-being.

64    On the evidence, she was available at any time during the day and night to assist the grandfather. Without this close and caring relationship, it is difficult to see how the deceased would have survived as an independent person until his death.

65    It is submitted that the application should be dismissed on two bases. Firstly, that the plaintiff has not demonstrated a need. Secondly, that the plaintiff’s conduct over the last six years of the deceased’s life disentitles him to any provision out of the estate. Whilst the plaintiff appears to be in sound financial position, he is close to the end of his working life and in any event he will be unemployed within the next six months without guarantee of further employment.

66    The second submission that has been made in relation to his conduct, I think needs to be looked at in the context of the whole of his relationship with his father. There is no controversy concerning his evidence of the relationship up until 1989. In fact, his conduct seems impeachable. He was not only available to help his parents, but he attended weekly to do things around the house for them. He was involved in maintaining the property and throughout that period, he could only be regarded as a loving and dutiful son.

67    During this period he received no benefits from the deceased. The moneys that were lent to him by the deceased and the debenture stocks transferred into his name were done, not with a view of assisting him and his family, but with a view of maximising the deceased’s ability to earn an income without a reduction in his pension and to avoid payment of tax on those investments. In fact the evidence was that there was some detriment to the son and his wife because of the income tax imposition on the two of them.

68    The deceased, when offering the two loans to his son, was in no different a position than a stranger. The loans had an interest component and that interest component was based on the rates that the bank was then charging according to the plaintiff. That evidence hasn’t been challenged. The only one to benefit from such an arrangement, therefore, was the deceased, not the plaintiff. He already had a loan with the bank concerning the $10,000 and the loan from the deceased in relation to the $9,000 was at a current bank rate. Therefore, no benefit flowed to either himself or his family. The benefit went the other way. Nevertheless, as a dutiful son, he accepted that arrangement that the deceased requested of him.

69    After the death of the plaintiff’s mother the relationship deteriorated and I have already set that out earlier in the judgment. It is, however, difficult to apportion all the blame to the son for the state of affairs that arose. There is evidence, not only from the plaintiff, but also from the defendant, that the deceased wanted to have nothing to do with his son. The evidence of his son is that until late 1991, he endeavoured to have or to maintain a relationship that existed prior to the death of his mother. This was spurned by the deceased. By 1992, the plaintiff had taken the view that it was pointless maintaining contact with the deceased. Thereafter, with the exception of his brother’s funeral, he had no contact with the deceased other than to ring him for his birthday.

70    I accept the evidence of the plaintiff on this matter that every time he attempted to speak with the deceased he cut him off by hanging up. It could be said that the son could have done more than he did to try and restore the relationship. His daughter had said to him on a number of occasions that if he wanted to find out how the deceased was, he should ring him. I’m not too sure that those statements by her were really made in a conciliatory fashion which would give the plaintiff some encouragement that there might be a change in attitude by the deceased.

71    In Kleinig v Neal [1981] 2 NSWLR 532 at 540, Mr Justice Holland made the following comments:

“If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child’s welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child’s claim.”

72    In the context of the present proceedings, the parts of those comments made by his Honour that are apposite have reference to differences of outlook between generations is not exceptional but there will be some friction between parent and child and that a wise and just parent will not allow disharmony or disappointment to blind him to the needs of his child. His Honour also referred to the duty of a parent towards a child to provide for the child’s needs on his death notwithstanding the disharmony and disappointment.

73    The Act obliges the Court to consider the question of the character and the conduct of the child has been such as to disentitle the child from any or any further benefit. Looking at those matters that are set out in s 9 sub-section (3), and looking at the relationship between the deceased and the plaintiff over a period in excess of 50 years, on the whole the son’s conduct is not such which would disentitle him to receive any benefit from his father’s estate. True it is that over the last six years the relationship was virtually non-existent and that the plaintiff did little to restore the relationship to its former position. Nevertheless that was for a short period of the total relationship. It was a critical period, there can be no denying that, but nevertheless, during this period, neither the plaintiff nor the deceased made any attempt to restore the relationship. See also Arratoon v Arratoon (Bryson J, 31 July 1995, unreported).

74    The deceased has more than adequately provided for the defendant. It is clear from the evidence that she had a loving, caring relationship with her grandfather all of her life and in his last five years she was always there and fulfilled the role that one would normally expect of a spouse, a professional carer, or perhaps a child.

75    In making an assessment of what provision should be made for the plaintiff, the defendant’s relationship with her grandfather must be taken into account. In my view, there should not be a substantial interference with the testamentary intention of the deceased. Nevertheless, I do not think the deceased was wise and just when he made no provision for his son.

76    There is no duty on a parent to make provision for a child out of his estate of a sum which would give the child an unencumbered property: Fiorentini v O’Neill (Court of Appeal, 4 December 1998, unreported). I do not think it is appropriate in this case for provision to be made out of the estate of the deceased which would discharge the mortgage over the Oyster Bay property. Taking the whole of the relationship, and taking into account the plaintiff’s employment prospects in the future and the possibility of physical deterioration, in my view proper provision for the son would go to matters that are set out in paragraph 11 of his affidavit of 20 June 1999.

77    In that paragraph he refers to renovations on the Oyster Bay house, fencing, repairs to the pool and external and internal painting. If provision is made out of the estate for those matters to be attended to, the plaintiff’s superannuation entitlements are preserved to be used either by way of weekly payments or they can be cashed in and the moneys used in whichever way the plaintiff and his wife sees fit.

78    The order that I make then is that provision be made out of the estate of the late Donald Eli Foster by way of a legacy to the plaintiff in the sum of $68,000. The plaintiff’s costs to be paid out of the estate; the defendant’s costs on an indemnity basis, be paid out of the estate.

****************

I certify that paragraphs 1 - 78 are a true copy
of the reasons for judgment herein of
Acting Master Berecry.

Associate

Date :

Last Modified: 10/08/1999