Friedlos v Hampton - [2013] WASC 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIEDLOS -v- HAMPTON [2013] WASC 105

CORAM: MASTER SANDERSON

HEARD: 20 FEBRUARY 2013

DELIVERED : 28 MARCH 2013

FILE NO/S: CIV 2826 of 2011

MATTER :The Estate of PHILIP GEORGE FRIEDLOS, late of 5 Adelina Court, Westfield in the State of Western Australia (Dec)

BETWEEN: PAUL DAMIEN FRIEDLOS
Plaintiff
AND
ANTHONY HAMPTON as Executor of the Will of PHILIP GEORGE FRIEDLOS (Dec)
First-named First Defendant
DIANE VERSON as Executrix of the Will of PHILIP GEORGE FRIEDLOS (Dec)
Second-named First Defendant
SANDRINE FRIEDLOS-BIRAS
Second Defendant

Catchwords:

Inheritance (Family and Dependents Provision) Act 1972 (WA) - Claim by adult son - Small estate - No moral duty on testator to provide for claimant - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff:    In person
First-named First Defendant     :    No appearance
Second-named First Defendant :    No appearance
Second Defendant  :    Mr P T Arns

Solicitors:

Plaintiff:    In person
First-named First Defendant     :    No appearance
Second-named First Defendant :    No appearance
Second Defendant  :    Arns & Associates

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Luciano v Rosenblum (1985) 2 NSWLR 65
Vigolo v Bostin (2005) 221 CLR 191

MASTER SANDERSON: This is the plaintiff's application pursuant to s 6(1) of the Inheritance (Family and Dependents Provision) Act 1972 (WA). The plaintiff says the will of his father, the late Philip George Friedlos, did not make adequate provision for him. The application was commenced by originating summons dated 28 September 2011.
The deceased died on 24 November 2010. The principal beneficiary of the deceased's estate is the second defendant. She is the widow of the deceased. The other beneficiaries are the children of the deceased from a prior marriage. They are Julie Marie Friedlos, Danny Philip Friedlos, David Lee Friedlos and the plaintiff. Under the deceased's will each of his children receives a bequest of $2,000. The only other beneficiary is Remi Robin Friedlos‑Biras, the only child of the deceased and the second defendant. He was born 2 January 2004.
The assets and liabilities of the estate are set out in the affidavit of the first defendant sworn 2 October 2012. The only significant asset of the estate is a property at 5 Adelina Court, Camillo. It is encumbered by a mortgage to the ANZ Bank. At the time of the death of the deceased the net value of the estate was $238,984.38. As at 2 October 2012 the net value of the estate was $225,920. When this action was commenced the plaintiff was represented by solicitors. At the hearing of the action he was self‑represented. He relied on two affidavits, the first sworn 27 September 2011, the second sworn 23 October 2012. Both affidavits were drawn by solicitors. The second defendant objected to much of the second affidavit. However, it is unnecessary to deal with those objections. The matter can be resolved without resort to any of the objectionable material.
The plaintiff was 31 years old at the time of the deceased's death. The plaintiff has not set out his financial position as at the date of death of the deceased. However the plaintiff does depose that as at the date of the affidavit he was in receipt of wages in an amount of $750 per week. That it seems was sufficient to meet his outgoings.
The second defendant relies on an affidavit sworn 2 October 2012. She is 44 years of age. The deceased and the second defendant were married for over nine years. During the deceased's life they lived together at the property in Camillo. Since the death of the deceased she has continued to reside in the property with her son. She provided care to the deceased during his years of ill health prior to his death. She receives an income of $1,625 per fortnight. She is able to meet her expenditure requirements by taking in student boarders. She suffers from anxiety and exhaustion for which she takes prescription medication. She has limited savings and a HEC debt.
Pursuant to s 6(1) of the Act the court can vary the terms of a will as it thinks fit on the basis the provision in the will is not adequate for the proper maintenance, support, education or advancement in life of the applicant. When determining an application made under s 6 of the Act the court is required to conduct a two stage process. In Bondelmonte v Blanckensee [1989] WAR 305, Malcolm CJ put the position as follows:
On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question which is to be determined at the date of death of the deceased. ... If that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order (307).
This statement of principle has been endorsed by the High Court in a number of decisions perhaps most importantly in Vigolo v Bostin (2005) 221 CLR 191.
The first stage of the test or the jurisdictional threshold issue is an assessment of whether the deceased's provision for the plaintiff was adequate for the proper level of maintenance, support, education or advancement in life of the applicant having regard to among other things:
•the financial position of the applicant;
•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 with legitimate claims to his bounty.
The first stage of the test requires consideration of the circumstances of the plaintiff as at the date of death of the deceased. The plaintiff's present circumstances are not relevant for the first stage of the test. Put simply there is no evidence that at the relevant date the plaintiff had needed financial support requiring the deceased to make provision for the plaintiff from his estate. The only references to his financial position are after the time of the deceased's death.
As counsel for the second defendant in his written submissions correctly observed the plaintiff's application is based solely on a moral duty owed by the deceased due to the nature of the relationship. But a moral duty in and of itself does not satisfy the jurisdictional issue. To succeed the plaintiff must show that adequate provision has not been made for the proper level of maintenance, support, education or advancement in life he could reasonably expect.
What is important in this case is the second defendant's legitimate claims to the bounty from the estate as at the date of the deceased's death. Given the second defendant is of limited means and is required to care for the infant son of herself and the deceased, the moral duty owed by the deceased to the second defendant far exceeds the plaintiff's moral claim. In Luciano v Rosenblum (1985) 2 NSWLR 65 the position was put this way:
[T]he duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies (69).
In fact in this case the estate of the deceased is not sufficiently large to allow all of those aims to be achieved. But it would seem the deceased did the best he could with the assets at his disposal. He provided accommodation for his widow and his infant child. He simply did not have assets available to provide an income for the second defendant or to provide her with a fund to meet unforseen contingencies. However in my view he discharged his clear moral obligation by leaving the property he had to the second defendant.
The position can further be tested in this way. If any disposition was to be made to the plaintiff it would be necessary for the Camillo property to be sold and once part of the estate was distributed to the plaintiff the second defendant would be left to attempt to provide for the needs of her son and herself. Such an outcome would border on the unconscionable.
The difficulty in this matter is the estate of the deceased is simply not large enough to allow for provision to all those who in a perfect world would have been entitled to a share of the deceased's largesse. The plaintiff has not demonstrated a failure on the part of the deceased to make adequate provision for him in his will. Accordingly the application will be dismissed.
I will hear the parties as to costs.