Furner v Public Trustee

[2002] NSWSC 473

CITATION:	Furner & Anor v Public Trustee [2002] NSWSC 473
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2828/01
HEARING DATE(S):	03/05/2002
JUDGMENT DATE:	31 May 2002
PARTIES :	Trevor and Elizabether Furner v Public Trustee
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Ms. E. Holt for plaintiffs Mr J. Wilson for defendant
SOLICITORS:	McKenzie & Co for plaintiffs Mr P.J. Whitehead for defendant
CATCHWORDS:	Family Provision. Application by two persons who were part of the household of the deceased. Small legacies given. No matter of principle.
DECISION:	Paragraph 45

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 31 May 2002

2828/01 - TREVOR FURNER AND ELIZABETH FURNER v PUBLIC TRUSTEE – ESTATE OF MELBA MIDDLEBY

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Melba Middleby who died on 8 November 2000 aged 84 years. The deceased’s husband died in 1988 and she had no children. The plaintiffs, who have at times during the deceased’s life lived with her at her property in Newcastle, survived her.

2 The deceased made her last will on 7 August 1962. The defendant was appointed executor and trustee. In the events which have happened the estate was left to the deceased's husband's sister, Joan Oliver. Joan Oliver died on 24 March 2002.

3 The estate has been reduced to cash and amounts to $315,687 of which $30,000, with the consent of the plaintiffs, was distributed to Joan Oliver in January 2002. Costs have been incurred on both sides. The plaintiffs’ costs are estimated at $46,000 and those of the defendant at $23,000.

4 I will deal with some of the family history by reference to the chronology. The deceased Melba Middleby was born on 23 February 1916. Trevor Furner, one of the plaintiffs, was born on 17 October 1940. In 1954 the plaintiff Trevor Furner met the deceased and her husband Bob. At that stage Trevor Furner was 14 years of age and he came into contact with the deceased and her husband because of a mutual interest in music. Elisabeth Furner, the plaintiff, was born on 27 December 1956. In 1958 the deceased purchased a tenor saxophone for Trevor and in the following year after staying with them he returned to Sydney. Trevor's father died in 1961. Trevor married for the first time in 1963 and he separated from his wife in 1979. In 1980 he commenced a relationship with Elisabeth and they lived together in Sydney.

5 It was in 1982 that Trevor on one of his trips to see the deceased and her husband Bob introduced his new partner, Elisabeth, to them. Elisabeth and Trevor had been having a difficult financial time and after an offer by the deceased and her husband in October 1983 they moved into a cabin which is located on the deceased’s land at 19 Copeland Avenue, Tea Gardens. The cabin was separate from the main house but close to it. At that stage it had no hot water or power as that was only connected in 1985. In that year Trevor managed to sell some land, which he had been struggling to purchase at Menai, and received after the sale $10,000. In 1986 Trevor and Elisabeth moved out of the cabin at the deceased's home and moved into rented accommodation at Hawks Nest. The plaintiffs suggested in their evidence that they lived there full time in this period.

6 In 1988 the deceased’s husband, Bob Middleby, died. Trevor and Elisabeth moved to Mayfield in 1989 and in November that year, as a result of difficulties which were occurring in their relationship, they separated. At this time Elisabeth moved in with the deceased for about six months. At the end of the six-month period Trevor and Elizabeth got back together again and moved to New Lambton for a while and then to Tenilba Bay. In 1996 and Trevor and Elisabeth married and in that year Trevor received approximately $40,000 from his mother's estate. That sum was used to open a takeaway food shop which they operated for some years before closing it down when it proved to be unsuccessful.

7 The deceased died on 8 November 2000 and probate was granted on 17 January 2001. The summons was filed within time and the beneficiary Joan Oliver died as I have mentioned on 24 March 2002.

8 For the plaintiffs to be eligible persons it is necessary that each of them at some stage to be part of the household of which the deceased was a member and at some time were wholly or partly dependent on the deceased.

9 I will first deal with the question of whether the plaintiffs were part of household of which the deceased was a member. As I have mentioned they moved into a cabin on the property in about October 1983. The cabin comprised a bedroom and a kitchen although there were no cooking facilities. In between the cabin on the main house was located a laundry and bathroom building and also a caravan. The laundry and bathroom were shared between all the occupants of the property. Trevor and Elisabeth normally slept in the cabin and the deceased and her husband normally slept in the house. The deceased’s husband, Bob, would sometimes sleep in a caravan in between the two buildings when the deceased would stay up late at night composing music. Trevor and Elisabeth agreed to pay $40 per week rent to the deceased and her husband for the use of the cabin although it appears that they were so short of money they sometimes missed payments. The deceased and her husband provided meals and paid expenses such as food, electricity and telephone. At times Elizabeth cooked everyone’s meals. Meals were usually eaten in the main building.

10 The plaintiff, Trevor, was a musician and because of this he had got to know the deceased and her husband. It seems that Trevor and deceased would sometimes be up late at night playing music. They were the late-night members of a somewhat extended family. Often on these occasions Bob, the deceased’s husband, would sleep in the caravan and Trevor would sleep in the second bedroom of the main building. There was also another caravan on the block of land which was in fact quite a large block. That caravan was occupied by different people from time to time and there is no evidence to suggest that such persons shared meals with the deceased or took part in her life.

11 There was extensive discussion on the meaning of "household" in Kingsland v MacIndoe [1989] VR 273 and it seems clear that the word in its ordinary sense is as set out in the Oxford dictionary:

"The holding or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".

12 A matter which should be considered on this question is the extent of any personal relationship between the relevant people to see whether this assists in proving that the parties lived together as part of a domestic establishment. The plaintiff, Trevor, knew the deceased and her husband when he was 16 or 17 years of age working in a music store at Newcastle. He got to know the deceased and her husband who was also a musician. As a result of his friendship the plaintiff, Trevor, spent holidays with the deceased and her husband and participated in their family activities at that time. In 1959 he moved back to Sydney but still maintained his contact with the deceased and her husband which arose out of their interest in music and other shared activities such as fishing. He often visited on weekends after his move back to Sydney.

13 It was submitted that the evidence of the plaintiff should be treated with caution. I found the plaintiff, Trevor, not to be forthright in disclosing the true nature of his earnings as a casual musician. There was evidence from a Mr Coakes a next door neighbour who observed the plaintiffs removing some items from the house after the death of the deceased. According to the plaintiffs these were only their goods and it is plain that Mr Coakes could not identify any of these to be the deceased’s goods. He referred to a video recorder which he knew the deceased had which he had observed to be missing from the house and the plaintiff, Trevor, saying he had found $500 plus some coins in the house. He also said he returned some watches to Trevor which belonged to the deceased.

14 An inventory prepared by the Public Trustee when the plaintiffs moved out included a video recorder. It did not show any watches or cash but it seems to be only an inventory of furniture and not personal possessions. No reference was made to them in the inventory to the Probate application.

15 The plaintiffs admitted removing a diary and some letters which belonged to the deceased but probably did so because they did not think it improper. The plaintiff, Trevor, denied finding cash and taking the watches and video recorder.

16 Mr Coakes gave his evidence in a straightforward way but notwithstanding his evidence concerning the existence of the video recorder in the list it did not satisfy me. In the face of this discrepancy I am not satisfied as to the serious charges he has made in this regard.

17 Although I have some doubts about Trevor’s evidence I was impressed with the way in which Elizabeth gave her evidence and I am quite prepared to accept her evidence.

18 There was evidence of a neighbour who knew the plaintiffs and the deceased for many years. He gave evidence of them living permanently with the deceased and her husband for many years in the cabin on the property. He also gave evidence of them using all the facilities and eating together. The evidence of Joan Oliver was not tested and her son was such a rare visitor that he probably could not assist in the resolution of the matter. I do not find the diary of the deceased much assistance as it includes people under “the cabin” who in fact stayed in the second caravan on the property.

19 Having regard to the evidence I am satisfied that between 1983 and 1986 the relevant parties lived together. They joined in activities which were of interest to all and it is clear that both plaintiffs were part of the household of which the deceased was a member in this period.

20 I should mention that there was another period when Elisabeth herself lived with the deceased for some six months when she separated from Trevor. That is a period of a reasonable time and I would have thought it would have been sufficient to show that Elisabeth was part of the household of which the deceased was a member.

21 I turn to the question of whether the plaintiffs were wholly or partly dependent upon the deceased.

22 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following:

"His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i).
In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

23 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could only have received a partial benefit. At page 492 he addressed the argument in these terms:

"Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455.
It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. ‘The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

24 This passage emphasises the factual nature of dependency be it financial or otherwise.

25 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

26 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.
But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.
This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'.
If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

27 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant “more than minimally” or perhaps “significantly”.

28 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

29 In so far as the plaintiff, Elizabeth, is concerned it seems that in the six-month period she was living with the deceased she made no payments to her and was dependent upon her for accommodation and her food. At times Elizabeth contributed minor amounts to grocery items. As the dependency was for a period of some six months I think it is more than minimally.

30 Trevor gave evidence of a period which occurred when he had an obligation to make payments to support his children of his first marriage. Apparently the deceased gave him $20 a week in order to support his children. This went on or for some 18 months from February 1984 to August 1985. I have some doubts about the evidence given by the plaintiff, Trevor, but I am prepared to accept this evidence as it is consistent with his situation as far as work was concerned. There was also the provision of further funds by the deceased to Trevor amounting to $100 per month in the last three years of the deceased’s life when he was too ill to work in the takeaway business.

31 The other area of dependency suggested was the payment of $40 per week for accommodation and food in the period from 1983 to 1986. There was no evidence before me to suggest what would be a proper rent for the cabin. However, as the payment included food it was probably very generous to the plaintiffs but it is not essential to my decision on this aspect. Generally I am satisfied that both plaintiffs were dependent in part upon the deceased.

32 It is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

33 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

34 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

35 I have earlier referred to the close association between Trevor and the deceased prior to 1983. I have also referred to the association between Trevor, Elizabeth and the deceased in the period from 1983 to 1986. The evidence also discloses that after 1986 the plaintiffs kept in touch with the deceased and her husband. In particular they continued to visit and support the deceased after the death of her husband. Letters and cards show the plaintiffs calling the deceased “mother” in 1988. Given the absence of children it seems to me that the plaintiffs occupied a substantial role in the deceased's life. I am satisfied on the traditional basis that there are factors warranting. However, in the event that this is not appropriate I also consider the prospects of success.

36 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it 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."

37 I turn to consider the situation of the plaintiffs. Trevor is 61 years of age and his wife Elizabeth 47 years. Trevor is not in good health as he suffers from cervical myopathy, angina, asthma and a systolic murmur. The first of these causes him substantial pain and effectively prevents him from carrying on any employment. He receives a disability pension of $372 per fortnight and Elizabeth receives a carer's pension as she looks after her husband. They live in rented accommodation and they own little of any value mainly some personal property. They have the equipment which was used in the sandwich shop which is said to be worth some $45,000. The equipment is in storage and they are paying for that storage.

38 I have already spoken earlier in this judgment about the relationship between the plaintiffs and the deceased. Clearly they played a part in the deceased’s life and assisted her in her last years. They made no contribution to the estate of the deceased. The deceased provided the funds for the plaintiff, Trevor, when he needed them and accommodation for Elizabeth at a time of difficulty.

39 It is necessary to consider the situation of others having a claim on the bounty of the deceased in this case being the beneficiary who has died. Her estate passed to her two sons Douglas and Leslie Oliver. There is no evidence as to their financial or personal situation. In these circumstances I can assume that they do not wish the Court to take these matters into account. The only evidence of personal contact with the deceased was quite minimal namely meetings when they took their mother up to see the deceased and her husband.

40 It is necessary to see how the plaintiffs say that they have been left without adequate and proper provision for their maintenance, education and advancement in life.

41 The plaintiff, Trevor Furner, in his affidavit suggested that he would like to purchase accommodation suitable for his disabilities, that is, without stairs and with a railing and invalid supports in the bathroom and toilet. He also would like to replace their old car with a reliable recent one which would cost about $20,000. He also says he would like to have some money put aside for medical expenses. Apart from quantifying the cost of the car in his evidence he does not quantify the other costs to which he refers.

42 The plaintiff, Elizabeth Furner, in her evidence identified a need as being to purchase a single storey property near where they presently live at Lemon Tree Passage. She identified asking prices for homes in the Tanilba Bay and Mallabula Bay area for 2 bedroom homes as between $139,000 and $230,000.

43 In relation to the provision of a home, presumably debt free, it is normally not appropriate for a child in a modest estate to receive sufficient funds for the purchase of debt free home. In Shearer v Public Trustee and Hawke v Public Trustee (unreported, NSWSC, 29 March 1988) Young J had the following to say:-

“The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and 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.”

44 In the present case although I have found factors warranting, the plaintiffs are not in the position of children of the deceased. The other factor that has to be taken into account is that there are in effect no other competing claims. As I have mentioned the two children taking under the estate of Joan Oliver are Douglas and Leslie Oliver have not put on any evidence as to their financial circumstances. I have no doubt that Trevor may need funds for medical expenses. His future is uncertain as he suffers from a number of medical problems. Both plaintiffs have lived their lives without any substantial assets behind them and some small fund to help them in their present circumstances would be appropriate.

45 Accordingly, in this matter the orders that I make are as follows:-

1. That the plaintiff, Trevor Furner, receive out of the estate of the deceased a legacy of $65,000.
2. That the plaintiff, Elizabeth Furner, receive out of the estate of the deceased a legacy of $40,000.
3. The plaintiffs’ costs on a party and party basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
**********

Last Modified: 06/03/2002