Franks v Franks Franks v Franks
[2011] NSWSC 1261
•10 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Franks v Franks Franks v Franks [2011] NSWSC 1261 Hearing dates: 10, 11, 12 October 2011 Decision date: 10 November 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: I direct the parties to bring in short minutes and to argue costs.
Catchwords: WILLS AND ESTATES - Succession Act 2006 - applications for family provision order by son and husband of deceased - allegations of disentitling conduct against son and husband - further provision made for husband and son Legislation Cited: Succession Act 2006
Family Provision Act 1982
Testators Family Maintenance and Guardianship of Infants Act 1916Cases Cited: Basto v Basto (NSWSC, 8 September 1989, Hodgson J, unreported)
Bladwell v Davis [2004] NSWCA 170
Collins v McGain [2003] NSWCA 190
Dare v Furness (1998) 44 NSWLR 493
De Winter v Johnstone, (NSWCA, 23 August 1995, unreported)
Fancett v Ware (unreported NSWSC 3 June 1986)
Foley v Ellis [2008] NSWCA 288
Kalmar v Kalmar [2006] NSWSC 437
Kleinig v Neal (NSWSC, 13 June 1980, unreported)
Lewis v Lewis [2001] NSWSC 321
Lloyd-Williams v Mayfield [2005] NSWCA 189
Massie v Laundy (NSWSC, 7 February 1986, unreported)
Phillips v Quinton (unreported NSWSC 31 March 1988)
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Shearer v The Public Trustee (NSWSC, 23 March 1998, unreported)
Singer v Berghouse (1994) 181 CLR 201
Walker v Walker (NSWSC, 17 May 1996, unreported)Category: Principal judgment Parties: Gregory Franks v Brad Franks
Alan Vincent Franks v Gregory FranksRepresentation: D Lloyd (Brad Franks)
E Cohen (Gregory Franks)
Plaintiff Alan Franks in person
A Flecknoe-Brown (Alan Franks, submissions only)
Byrnes & Cox Lawyers (Brad Franks)
Cunningham Legal (Gregory Franks)
Plaintiff Alan Franks not represented
File Number(s): 2010/00346839 2011/00050364
Judgment
This is the hearing of two applications under the Succession Act 2006 ("the Act") in respect of the estate of the late Dawn Franks who died on 13 January 2010. The deceased was survived by her husband, Alan Franks, who is the plaintiff in one application and her two children, Brad and Gregory Franks, who are parties in another application brought by Brad Franks.
I have ordered that the two proceedings be heard together and the evidence in one is evidence in the other.
Last will of the deceased
In the deceased's will made on 13 March 2008 she appointed her son, Gregory Franks, as executor and gave legacies of $20,000 to her son Brad Franks and $10,000 to her niece Paula Elizabeth Magnee. She gave the residue of her estate to her son Gregory Franks.
In her will in clause 7 the deceased said:
"I have limited my gift to my son Brad Alan Franks as I believe my son has mistreated me most cruelly. I have suffered physical abuse and lost weight due to the stress and distress that has come from his verbal abuse. I also say that he broke my right hand at one time. For these reasons I have limited my bequest to him."
A solicitor drafted a similar will on 20 November 2007 but it was not executed. However, there was a statement by the deceased executed in October 2007, which Gregory located in her possessions. It read:
"This statement is made by me Dawn Lorraine Franks of XX Treetop Crescent Port Macquarie
My son, Brad Alan Franks left home a few years ago now.
For several years he has been a changed person. He has continually left me without any food at all for 3 days at a time. My adult weight has always been in the eight stones but now I am an emaciated four stone.
There have been death threats and relentless verbal abuse as soon as he walks in the door which is unbearable. Brad even cruelly broke my right hand for no reason at all.
My other son, Gregory often makes hasty trips up to Port Macquarie from Sydney.
The first day he goes to the shops and stacks my pantry and refrigerator and refuses to take any money for it. While he is shopping he leaves me with an old movie I love to watch on video. He feeds me all day with snacks in between. Nothing is any trouble to him and we have such a pleasant and happy time.
Brad's continual abuse has seriously damaged my health.
Signed: Dawn Franks
October 2007"
Assets in the estate
The only asset in the estate is the deceased's house at Treetop Crescent, Port Macquarie ("the Port Macquarie property").
A valuation of the Port Macquarie property, sought by the solicitors for Brad Franks, concluded that it had an indicative market value range of $425,000 to $470,000. Gregory provided an appraisal sought by him which recommended that it be marketed between $409,000 and $429,000. Counsel did not discuss an agreed value at the hearing, but counsel for Gregory highlighted that it was worth between $410,000 and $470,000 depending on which valuation was relied upon (T5). As the exact value is not critical to the resolution of the application, I will accept that it has a value of between $409,000 and $420,000.
At the date of death there were cash funds of just over $4,000, minor items of furniture and an unregistered car.
Administration expenses and funeral expenses amounted to $10,000. The house at Treetop Crescent was let for a short time and expenses were incurred by Gregory in the sum of $5,350. He has also incurred the cost of household and contents insurance of $1,200. Presumably the cash funds have been used to meet the expenses of preparing the property for rent.
Brad Franks' costs on an indemnity basis are estimated at $59,000 and on a party and party basis at $48,000. Gregory Franks' costs on an indemnity basis are estimated at $43,000. This is a total of $91,000 if I were persuaded to make the usual costs order that the plaintiff receive his costs on the ordinary basis and the executor receive his costs on the indemnity basis.
Family history
Alan Franks was born in October 1930 and the deceased, Dawn Lorraine Franks, in April 1938. Alan Franks and the deceased were married on 6 February 1960. They had two sons, Brad born in January 1961 and Gregory born in September 1964.
In 1984 Alan Franks and the deceased sold their home and the deceased purchased a block of land in Port Macquarie. At that time Alan Franks was still working at the Roads and Traffic Authority and he had several years before his retirement in 1990.
In 1985 Alan Franks and the deceased separated. The sale price in respect of the jointly owned home was used to construct a new house at Port Macquarie, to be built on a block of land that the deceased purchased with funds she had inherited. Unfortunately the proceeds of sale were not sufficient to complete the home and in 1987 a loan was obtained for $30,000 to facilitate the completion of the building. The land was purchased in the deceased's name. Alan guaranteed that loan.
In due course, when Alan Franks retired in 1990, he paid out the loan of $30,000 from the funds he received on his retirement. He remained living in Sydney.
At the time Alan Franks and the deceased separated in 1985 Gregory was in the United States working as a missionary for a year and when Gregory returned he lived in a unit at Port Macquarie with his mother for a time as the house was not finished. The deceased and Brad had moved to Port Macquarie in 1985 and in 1988, when the house at Treetop Crescent was completed, they moved in and lived together in the house until 2005.
In the period up until 1990 Alan Franks sent the deceased and Brad approximately $350 a week to support them. In 1992 he paid approximately $10,000 to build a fence and landscape the property at Port Macquarie.
Alan Franks and the deceased never divorced, nor did they have a property settlement. Alan Franks was happy to provide the funds on the basis that he thought he had an obligation to support his wife and children.
In contrast with Gregory, Brad never worked (apart from on some relatively minor occasions) after he left school and his father Alan Franks paid all his expenses.
In 1989 the deceased commenced receiving a disability pension as a result of a diagnosis of osteoporosis and in 1990 Brad Franks commenced receiving a carer's pension.
In 2005 Brad moved out of the Port Macquarie property to live in other accommodation in Port Macquarie. In 2006 Brad moved a caravan onto the land at Treetop Crescent but was asked to leave by the deceased.
Following a rapprochement between Brad and his mother he moved back into Treetop Crescent from April until August 2007. When Brad left the house Gregory moved in with the deceased and became her full time carer. To allow him to be his mother's carer he left the business that he had commenced in Sydney some months earlier. Gregory continued to care for his mother until her death on 13 January 2010.
On 3 September 2010 probate was granted. On 19 October 2010 Gregory filed a summons applying to this court for the withdrawal of a caveat over the Treetop Crescent property. On 28 October 2010 Brad Franks filed a cross summons seeking an order under s 59 of the Succession Act for further provision out of the deceased's estate for his maintenance and advancement in life.
On 15 February 2011 Alan Franks filed a summons for an order for provision under s 59 of the Succession Act . His summons was approximately one month out of time (s 58 of the Act providing that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person).
Eligibility
Alan Franks and Brad Franks are both eligible persons, being the widower and the son of the deceased respectively (see ss 57(1)(a) and (c) of the Act).
In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. These comments are equally applicable to claims under the Succession Act . At page 209 the court said the following:
"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
The court must therefore determine, first, whether inadequate provision has been made for Alan and Brad's education, maintenance and advancement in life so that a family provision order can be made (s 59(1) of the Act). Secondly, the court must determine whether an order should be made in the circumstances of the case and, if so, the terms of that order (s 59(2) and s 60).
Extension of time
As I have mentioned, the claim by Alan Franks is out of time by one month. Therefore, it is necessary for the court to consider section 58 of the Succession Act , which allows an application to be made notwithstanding it is out of time, if the Court so orders "on sufficient cause being shown" .
The Succession Act replaced the Family Provision Act 1982 ("the former Act"). Section 16(3) of the former Act provided that the Court could not allow an application to be made after the prescribed period unless the parties to the proceedings consented to the application being made out of time, or unless sufficient cause was shown for the application not having been made within that period.
There are a number of cases which interpret s 16(3) of the former Act and refer to the principles to be applied in an application for an extension of time. These principles are applicable to applications for extension of time under the Succession Act.
In Re Guskett (deceased) (1947) VLR 211 the following was said:
"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."
In Lewis v Lewis [2001] NSWSC 321 , Hodgson J commented on s 16 (3) of the former Act and said at [83] that the proper interpretation of "sufficient cause" was "s omething like 'sufficient in all the circumstances to justify the granting of an extension of time'."
His Honour Young J dealt with the principles governing applications to extend time under the former Act in Massie v Laundy (NSWSC, 7 February 1986. unreported). His Honour indicated that when looking at "sufficient cause" under 16(3) of the former Act, the factors which one looks at include the following:
(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?
There is a fourth factor, which Young J appeared to accept in Massie v Laundy , being the strength of the plaintiff's case: Dare v Furness (1998) 44 NSWLR 493 at 500 per Cohen J. Put at its lowest, by Needham J in Fancett v Ware (unreported NSWSC 3 June 1986), there is no purpose in extending the time with respect to a claim which must fail.
In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance and Guardianship of Infants Act 1916 had to demonstrate not merely a reasonable prospect, but at least a strong probability, of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989) who concluded that " the general strength of the plaintiff's case is a matter which enters into the whole matter of the exercise of discretion".
In De Winter v Johnstone , (NSWCA, 23 August 1995, unreported), his Honour Powell J referred to the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief and said at page 23:
"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."
His Honour Mr Justice Sheller in De Winter v Johnstone considered that it was only necessary to show that the application was not bound to fail.
The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect:
"Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."
With regard to the Master's comments, His Honour observed:
"...with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."
The onus is therefore on the applicant for an extension of time to first show sufficient cause for the delay. There were discussions between Gregory and his father as to the fact that he would be taken care of as he was the husband of the deceased. Apparently Gregory told his father that he had 18 months after his wife's death to commence proceedings. Subsequently Gregory advised his father that this was not correct and he helped him commence the proceedings. In the circumstances there is sufficient explanation of Alan Franks' delay.
Turning to the other factors for consideration, there is no prejudice to either party or unconscionable conduct in Alan Franks' failure to apply within time. Furthermore I have assessed the strength of his claim to be such as to warrant an extension of time. I propose to extend time for him to bring his proceedings.
I will now consider the situation in life of Alan Franks, Brad Franks and others who have a claim on the bounty of the deceased, in particular Gregory Franks.
Alan Franks
Alan Franks is 81 years old and it is apparent from what I have said earlier that he has retired. He lives in a Housing Commission unit in Sydney which he does not want to give up until he knows the outcome of this case. He owns some old furniture which was given to him by a relative and he purchased a recliner some years ago. Apparently he has sufficient savings to cover his funeral expenses. His sole income is the aged pension.
He suffers from hypertension and suffered a minor stroke about five years ago. Because of a leaking heart valve which requires surgery he has difficulty climbing stairs and walking uphill. He has asthma and problems associated with a chronic enlarged prostrate and he was recently diagnosed with glaucoma.
According to Alan Franks he and the deceased had a happy 25 years living together as a man and wife. They then separated when his wife moved to Port Macquarie and he continued to work in Sydney.
Brad Franks made some claims about his father's relationship with the deceased. In his affidavit of 26 November 2010 he said the following:
12. When she was 21 she married my father Alan Franks. The marriage took place on about 6 February 1960.
13. My father became violent and abusive from the third day of their marriage. The marriage lasted for approximately 12 years during which myself and my younger brother Gregory were born.
14. My mother did everything she could to protect us from the violence that she experienced.
15. In about 1973 my mother separated from my father however one week later she fell down the back ramp of her house and broke her back My father returned to the house to take care of her. My mother was required to lay flat on her stomach for 24 hours a day for one month. On the day that she was able to stand upright again my father pushed her against a wall, attempting to break her back again so that he could continue to have complete control over her. He was not successful and for reasons known only to her my mother continued to live with my father until about 1985
16. My mother separated from my father once more in about 1985. My mother and I moved to Port Macquarie and my brother remained in Sydney with my father (My father still lives in Sydney at Croydon Park. He has only been to Port Macquarie on a few occasions since her death).
These allegations are extraordinary. They remained in the affidavit because, after considering the length of the affidavit, the parties did not take objections and they have left me to consider whether or not the parties should be accepted and what weight should be given to the evidence.
The first thing to observe about paragraph 13 is that Brad was not born until 16 months after the wedding and could therefore not have witnessed events occurring just after his parents' wedding. Whatever he is reporting in this paragraph is either a figment of his imagination or something told him by his mother.
Paragraph 14 is of no assistance given its lack of particularity.
In paragraph 15 Brad does not say that he saw these incidents happen. These incidents are denied by Alan Franks. Gregory gave evidence in his affidavits that he never saw any evidence of violence between his parents. Having regard to the nature of the evidence given by Brad I do not propose to accept his evidence.
In addition there were reported statements made by the deceased that she was glad to get away from Alan Franks and move to Port Macquarie. There were suggestions to some people that she was abused physically and mentally. For reasons which I will deal with later, I think the statements by the deceased should be treated with some scepticism in this case. I note that Alan Franks and the deceased continued to live together for another 11 years after the incident alleged in paragraph 15 of Brad's affidavit and accordingly I do not accept Brad's version of the relationship. Furthermore Gregory gave evidence in his affidavit of 17 August 2011 that Alan lived with the deceased's mother (Alan's mother-in-law) until 1989, which is not corroborative of a violent relationship between Alan and the deceased. I have carefully read all the evidence that relates to their relationship and I am satisfied that there was a reasonable relationship between Alan and the deceased up until separation.
I should also mention that Gregory's evidence was that Alan Franks used to spend his holidays for many years at Port Macquarie with the deceased, up until his retirement in 1990. Alan Franks said he went up to Port Macquarie for three or four weeks, when he had holidays (T67). Brad also admitted that Alan came up and stayed at Port Macquarie "on occasion" (T11).
In the chronology I have set out a number of the contributions made by Alan Franks. Another contribution which I should mention was that after he retired in 1990, apart from paying off the mortgage of $30,000, he paid $36,000 to the deceased and Brad to allow them to live comfortably for some years at Port Macquarie. Plainly, notwithstanding their separation there was continued contact between the deceased and Alan Franks, as is evidenced by letters between them. I accept that he spent holidays at Port Macquarie although the extent of these holidays is in dispute.
Brad Franks
Brad Franks is 50 years of age. He is married and lives with his wife, Melissa, who is responsible for her two children who live with them most of the time.
Brad receives income from Centrelink and from casual work as a cleaner which totals $450 per fortnight. His wife earns $1,226 per fortnight. Brad recently completed studies which qualify him to work as an assistant in nursing in aged care and he gave evidence at the hearing that he had been offered a part-time job at a nursing home in Port Macquarie (T10).
Brad and Melissa have assets of approximately $5,000 and they live in Port Macquarie, paying rent of $310 per week. They do not own a house.
One of the major issues in the case is, of course, the relationship between Brad and his mother, particularly bearing in mind what I have set out earlier as to what the deceased said in her statement and in her will. Although Brad claimed to be his mother's carer from 1989 to 2005 and for a short time thereafter, there is some debate about the extent of the care which was necessary to begin with.
In 1989 the deceased suffered trauma to her back and began receiving a disability pension. Brad was then granted a carer's pension in 1990. Prior to that it should be borne in mind that Brad had virtually never been in employment, although he gave evidence that he earned some money (less than $1000) from publishing his writing (T12). He lived on the provisions made for him by both his parents in terms of accommodation and funds to support him, and on unemployment benefits. This is in contrast to the situation of Gregory who supported himself throughout his life.
There does not seem to be any doubt that when Brad decided to cease caring for his mother and leave home in 2005, he was suffering from depression.
One thing that has to be considered is how reliable the deceased was in respect of her statements which she reported to others. For example she made complaints that she did not trust her carers but there is no evidence that any of her carers were dishonest. There was evidence from a number of independent people who did not have any interest in the matter.
Manuela Lister gave evidence in respect of when she was employed as a carer for the deceased from January until April 2006. When she first went to care for the deceased she said the deceased said to her that she had a sore wrist and that it was because of Brad. Presumably this is the incident which was referred to in the deceased's will. Miss Lister was also present when Brad returned to care for his mother and she was very happy to have him back and the sore wrist incident was not mentioned. Miss Lister formed the view, which is probably correct, that the fact that Brad had been away was more likely to have been upsetting her. The deceased described Brad's friends as "not a very nice mob". This is without any basis and probably without any proper knowledge, given her circumstances at the time which prevented her leaving the house.
As early as 2008 her social workers commented on her behaviour. Case notes from a hospital admission in 2008 read:
"in summary, it is not clear that this lady is psychotic, but her behaviour and ideas are certainly irrational".
Greg maintained that his mother was not delusional. However, in early 2009 a consultant geriatrician for the North Coast Area Health Service described the deceased as having a total lack of insight and poor judgment. He also noted that she probably had long-standing fixed delusional beliefs.
Counsel for Brad relied on evidence that was said to demonstrate the deceased's fear of breaking bones and tendency to make false allegations. I accept, based on the case notes and letter from North Coast Area Health Service (exhibit A) that the deceased was in a fragile state of health by the time she was hospitalised in 2009. This, coupled with her "longstanding delusional syndrome" might have led her to make statements that cannot be relied on.
Although it is not a medical report, there was a report from an aged care assessment team in August 2005 which suggested there was no evidence of cognitive impairment and that the deceased was orientated in time and place. The report indicated that the deceased had been bedridden over the previous three weeks and she had not been out of the house for four years due to the severity and fragility of her bones. The evidence about being bedridden for some weeks resonates with the evidence given by Gregory that his mother would frequently go to bed for three weeks or so and then resume her life. In the aged care assessment it was noted that her insight into the real issues was impaired and as a result her judgment was clouded.
Having regard to these matters I consider that the deceased's assertions made in her later years, including those about the cruel treatment by her son Brad, are unreliable.
There were many witnesses who attested to Brad's care for the deceased and no doubt there was a situation where the deceased became more difficult to look after as she became older. That was coupled with Brad's own problems. I am not inclined to criticise him because he stopped caring for his mother in 2005.
So far as Brad's evidence about the care he gave his mother is concerned I do not accept that his evidence accurately reflects what took place. His allegations of what was involved in caring for his mother are set out in paragraph 34 of his affidavit of 26 November 2010. The regime of care was expressed to apply to the whole of the period from 1989 to 2005 which occurred after his mother crushed two vertebrae in her spine in March 1989 and spent ten days in hospital. Although one can imagine that after being in hospital the deceased took some time to recover, the description of care given by Brad is contrary to what was reported to the aged care assessment team in August 2005. The deceased also had a car accident in 1991.
There are a number of inconsistencies in Brad's evidence which make me wary of accepting his evidence at face value. For instance, Brad suggested in his affidavit evidence that Greg was never intended to live in the Port Macquarie property, but a photograph was tendered (exhibit 3) demonstrating that the house was built to include a bedroom for Greg. Brad also said that he paid for food expenses, but a document was tendered (exhibit 2) showing that Brad and the deceased shared expenses. I do not accept Brad evidence's that the deceased never paid him back for the expenses that, on the evidence available to me, appear to have been painstakingly apportioned.
There was evidence tendered at the hearing that contradicting Brad's evidence that the deceased never left the house from about 1996, such as photographs of the deceased on an outing to 'Fantasy Glades' in 2002 (exhibit 5). Counsel for Gregory also tendered a photograph (exhibit 7) showing the deceased carrying a vase with flowers in it, in 2002. This contradicted Brad's evidence that the deceased could not carry things after her accidents.
There is evidence that suggests Brad overstated his mother's need for care. The report prepared by the North Coast Health Service in 2005 (exhibit A) states that, until she became bedridden three weeks prior to the report, the deceased "could prepare her breakfast and attend to simple household tasks at bench top level". This contradicts Brad's evidence that the deceased was bedridden 24 hours a day at that time, "apart from necessary trips to the toilet etc." However, the report does corroborate Brad in some respects, including that the deceased had not been out of the house for the last four years and that, up until five months before the report was prepared, he had been her carer.
Brad gave evidence in his affidavit that he did the gardening during his period as carer for his mother, amounting to four hours labour per week, although a woman named Monica O'Reilly was hired for several months to do the gardening.
Other witnesses testified as to the deceased's capabilities at various times after her accidents. Lilian Creswell, a friend of the deceased's from Church, gave evidence that the deceased was "walking around" in 1991 (T28). Mrs Marilyn Magnee, the deceased's sister, gave evidence that the deceased was "going quite well" in 2003 and could cook and "do normal things" for herself (T72). Mrs Magnee's affidavit evidence was that even after her car accident the deceased was "walking and gardening, cooking".
Gregory gave evidence that the deceased did not require much care until 2004. He did however concede that every time the deceased had a "locking incident" Brad had to help her in and out of bed, and that the deceased needed help walking after periods of time spent in bed (T37). This, in his view, amounted to a need for regular care after her accident in 1991 for periods two weeks, two or three time a year.
Gregory did not dispute the fact that any care that was provided to the deceased from 1991 to 2005 was provided by Brad and that Gregory only visited the Port Macquarie home four times a year for a week each time, during that period. Gregory stated in his affidavit of 17 August 2011 that such care included mowing the lawn, sweeping floors, and preparing meals, shopping and doing laundry for the deceased when she was confined to bed.
I have already said I do not accept the allegations made by the deceased towards the end of her life and in her will. I accept Brad did care for his mother as her carer in varying degrees of difficulty, no doubt increasing as she got older. In regards to the allegations by Gregory in his affidavit evidence that Brad was verbally abusive of the deceased, I accept that as the years went on, there was increased tension between the deceased and Brad, culminating in Brad leaving the Port Macquarie home for good in 2007.
Brad did not contribute financially to the deceased's estate. Indeed, he was a financial drain on his parents all his life until he obtained a carer's pension in about 1991 when the deceased was diagnosed with osteoporosis and was provided with a disability pension.
Finally, Brad relied on a document that he says was an earlier will of the deceased in which the Port Macquarie property was left to him. Counsel for Gregory submitted, and I accept, that there is sufficient evidence to treat that document as suspect (T96). The deceased made earlier wills with the help of solicitors and it is difficult to see why this purported will would have been prepared without legal aid. I will give no weight to that document.
Gregory Franks
Gregory is 47 years of age, single with no dependents. He had to close his DVD hire business because of his need to care for his mother. He had left his business to friends to run but this was not a success and it eventually closed. Fortunately his liability for the shop rental ceases in October 2011. Gregory Franks is currently in receipt of a carer's pension of $776.10 a fortnight in relation to the care he gives to his father Alan Franks. He has no assets other than a car worth approximately $1,000 and superannuation worth approximately $5,000. Gregory has a wish to look after his father that now prevents him from working full time. As discussed above, he has incurred expenses as executor of the deceased's estate including funeral expenses and costs associated with renting out the Port Macquarie property.
The relationship between Gregory and his mother seems to have been reasonable considering the difficulties the deceased experienced at the stage in her life when Gregory was caring her for. I accept Gregory's explanation of the state of the house when his mother was collected by ambulance in 2009 and taken to hospital. Gregory did not contribute financially to the deceased's estate and in contrast with his brother he seems to have lived independently without the support of his parents.
Gregory suffers from health problems that include asthma, sarcoidosis, heart arrhythmia, astigmatism scoliosis and irritable bowel syndrome. He is also being treated for anxiety and depression that has worsened over the past few months.
Consideration of the claims
It is necessary to see how the two claimants on the estate, Alan and Brad, say they have been left without adequate and proper provision for their maintenance, education and advancement in life, and to consider Gregory's claim on the deceased's bounty.
The majority in Singer v Berghouse said the following in relation to the determination of whether provision is inadequate:
"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."
It is relevant at this stage to enquire as to whether Brad and Alan have needs that are not met by this provision made to them under the deceased's will. In Collins v McGain [2003] NSWCA 190 Tobias J noted at [42] that:
"... there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 , Dixon CJ said that "what is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them". As stated above, Alan received nothing under the will of the deceased and Brad received $20,000. Relevant to this case where there is a modest estate, her Honour Gaudron J in Singer v Berghouse , albeit dissenting, noted that:
"There may be cases where, given the circumstances and the size of the estate, an applicant will, in practical terms, only succeed by proving needs and requirements that cannot be satisfied from his or her own resources. But that is a practical consideration only..."
In relation to Alan, the authorities recognise generally that a testatrix has an obligation to their widower, despite recent authority that this is not in all instances the testatrix's primacy obligation (see Bladwell v Davis [ 2004] NSWCA 170 at [19] ).
The comments by Ipp JA in Bladwell v Davis at [2] are helpful in determining how to balance Alan and Brad's competing claims :
"... where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
While Alan and the deceased had been separated for many years prior to the deceased's death, there remains an obligation on the deceased to provide for him. White J in Kalmar v Kalmar [2006] NSWSC 437 at [50 ] made the following observations in this regard:
" First, the bond of matrimony, prime facie, gives rise to a testamentary obligation ( Re Clissold (deceased) (1970) 2 NSWLR 619 at 621 ). Although each case will depend on its own facts, it cannot be assumed that that obligation comes to an end on the parties separating without their being divorced, at least where there has been no disentitling conduct by the claimant ( Re Clissold (deceased) at 621-622; Re Mercer (deceased) [1977] 1 NZLR 469 at 672-673, cited with approval in Palmer v Dolman [2004] NSWCA 361 at [118] )."
The obligation is even higher in the circumstances of this case, where Alan has made significant contributions to the estate of the deceased. Furthermore I note that in this case there has not been a property settlement between Alan and the deceased, although Brad suggested in evidence that such a settlement was agreed whereby the deceased received the proceeds of the sale of the family home and Alan would have "the superannuation". Apart from the lack of any evidence to support such an allegation, it did not eventuate since there is evidence that Alan gave money above and beyond the proceeds of sale of the family home, including $30,000 on retirement to repay a loan to improve the Port Macquarie property.
At this stage in Alan Frank's life he needs a home and care. He is in the fortunate situation that Gregory is prepared to care for him and it certainly would be appropriate for him to be cared for in Port Macquarie. It should not be forgotten that after 1985, when the paths of Alan Franks and the deceased separated, he still continued to support in a substantial way the deceased and his son, Brad. It was not only the sale price of the home which went into the Port Macquarie home but also a substantial part of Alan's retirement package after he retired in 1990. At this stage his life expectancy is some 8 years and it is appropriate that some dignified arrangement is made for him to be cared for in the Port Macquarie home after he has contributed so much towards it.
There have been allegations of behaviour by Brad (and possibly by Alan) that could disentitle them from further provision under the deceased's will. However, the focus of the Succession Act is not finding out where the fault lies in a difficult relationship, 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 or she in fact did to constitute proper or adequate provision for the plaintiff : Young J in Walker v Walker (NSWSC, 17 May 1996, unreported).
In particular, these comments by Holland J sitting in equity, in Kleinig v Neal (NSWSC, 13 June 1980, unreported) are useful in the context of claims of disentitling behaviour against Brad:
"...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."
Furthermore, in relation to making a finding that there has been inadequate provision in the context of a difficult relationship, Sackville AJA said in Foley v Ellis [ 2008] NSWCA 288 at [101]:
"The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or the testatrix to provide for the claimant. "
As stated above in these reasons, I have not found the most serious allegations of physical and verbal abuse against Brad are made out. Brad has a need to maintain himself in the context where he has no assets. He says that he also has a need to buy a house since he is presently renting. He submitted that his wife could obtain a loan to finance the purchase (T89) but they will need some funds for part of the purchase price and the expenses.
In my view there is inadequate provision for the education, maintenance and advancement of life of both Brad and Alan under the deceased's will. Alan of course received nothing under the will.
As to the form that any order should take in this case, Alan asks the Court for a life estate in the house at Treetop Crescent, Port Macquarie to enable him and Gregory to live there. It is apparent that Gregory has a good relationship with his father and plainly he needs to care for him at home. He cannot care for his father in his father's one-bedroom housing commission unit in which his father now lives.
So far as Brad's claim is concerned he wishes, with his wife who is presently working and earning a reasonable wage, to buy a house for some $400,000 in the Port Macquarie area. He asks the Court to provide him with a legacy of $200,000 to allow him to buy such a house, which would cover approximately half the purchase price.
Brad's claim for this sum ignores the existence of the claim by Alan Franks, the widower of the deceased. As discussed above, I consider that Alan's claim must take primacy over Brad's claim, to ensure that Alan is able to live the rest of his life in dignity in secure accommodation.
In Shearer v The Public Trustee (NSWSC, 23 March 1998, unreported) Young J said on the issue of a parent's obligation to an adult son:
"...as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own."
Whilst in Lloyd-Williams v Mayfield [2005] NSWCA 189 the court upheld White J's proposition at first instance that there is no rule to the effect that proper provision for an adult and able-bodied child does not extend to providing him or her with a house or money to buy one, it must be noted that that case involved a large notional estate and other beneficiaries under the will would not face hardship if further provision was provided to the applicant.
In this case, the bounty is small and Alan would stand to suffer hardship if Brad was provided with the legacy of $200,000 he has submitted is appropriate. Furthermore Gregory is facing the prospect of having to borrow money to pay for his costs of the proceedings and pay out the legacies.
The parties did not say whether they wished to disturb the legacy given to Paula Magnee and I assume from Gregory's evidence that he intends to honour the payment of the legacy. Paula Magnee gave evidence in the case which indicated she is 65 years of age and on a disability support pension.
In my view Alan Franks' claim for a life estate in the home at Port Macquarie which he would share with Gregory is of such an order that it should have priority over Brad's claim.
Alan Franks' claim is only for a life interest and this leaves the remainder to be divided between his two sons, Gregory and Brad.
Although Brad cared for his mother for some years, for which he was mostly paid by a carer's pension, it is clear that he was supported by both his parents for many years before he started working as a carer. His need is not for $20,000 given under the will but for a more substantial deposit on a house.
In these circumstances, it seems to me that there should be a life interest in favour of Gregory Franks and Alan Franks in the Treetops Crescent, Port Macquarie property determinable on the death of Alan Franks. There should be appropriate provision for substitute accommodation if Alan Franks needs funds to go into a nursing home.
The interest in remainder should be held equally for Gregory Franks and Brad Franks. The provision for Brad should be in lieu of the provision given to him under the will of the deceased.
I direct the parties to bring in short minutes and to argue costs.
In relation to costs, given that this matter has essentially involved inter-party litigation, the usual rules as to costs do not apply. Each party has succeeded to some extent and I am minded to make an order that each party is to bear their own costs.
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Decision last updated: 14 November 2011
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