Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell
[2008] WASCA 256
•10 DECEMBER 2008
GWENYTHE MURIEL LATHWELL as Executrix of the Estate of GILBERT THORLEY LATHWELL (Dec) -v- LATHWELL [2008] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 256 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:71/2007 | 23 OCTOBER 2008 | |
| Coram: | PULLIN JA BUSS JA LE MIERE AJA | 9/12/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GWENYTHE MURIEL LATHWELL as Executrix of the Estate of GILBERT THORLEY LATHWELL (Dec) CAMILLE KRISTY LATHWELL AMANDA GAY DAVIDSON BETTINA JOSE LATHWELL PAULETTE JOANNA LATHWELL |
Catchwords: | Inheritance (Family and Dependants Provision) Act 1972 Claim by four daughters of deceased not provided for in the will Whether sufficient evidence Whether disentitling conduct |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA) |
Case References: | Delacour v Waddington (1953) 89 CLR 117 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Goodchild v James (1994) 13 WAR 229 Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 In re Green (decd), Zukerman v Public Trustee [1951] NZLR 135 Pogorelic v Banovich [2007] WASC 45 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GWENYTHE MURIEL LATHWELL as Executrix of the Estate of GILBERT THORLEY LATHWELL (Dec) -v- LATHWELL [2008] WASCA 256 CORAM : PULLIN JA
- BUSS JA
LE MIERE AJA
- Appellant
AND
CAMILLE KRISTY LATHWELL
First Respondent
AMANDA GAY DAVIDSON
Second Respondent
BETTINA JOSE LATHWELL
Third Respondent
PAULETTE JOANNA LATHWELL
Fourth Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : LATHWELL & ORS -v- GWENYTHE MURIEL LATHWELL as Executrix of the Estate of GILBERT THORLEY LATHWELL (Dec) [2007] WASC 83
File No : CIV 2418 of 2002
Catchwords:
Inheritance (Family and Dependants Provision) Act 1972 - Claim by four daughters of deceased not provided for in the will - Whether sufficient evidence - Whether disentitling conduct
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA)
Result:
Appeal dismissed
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr D L Jones
First Respondent : Dr J J Hockley
Second Respondent : Dr J J Hockley
Third Respondent : Dr J J Hockley
Fourth Respondent : Dr J J Hockley
Solicitors:
Appellant : Young & Young
First Respondent : Talbot Olivier
Second Respondent : Talbot Olivier
Third Respondent : Talbot Olivier
Fourth Respondent : Talbot Olivier
Case(s) referred to in judgment(s):
Delacour v Waddington (1953) 89 CLR 117
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Goodchild v James (1994) 13 WAR 229
Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
In re Green (decd), Zukerman v Public Trustee [1951] NZLR 135
Pogorelic v Banovich [2007] WASC 45
(Page 4)
1 PULLIN JA: This appeal is against an order made by Master Sanderson under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA). The deceased left an estate worth $2.2 million at the date of his death (but estimated at $3.8 million as at the date of orders made by the master). By his will the deceased left the entire estate to the appellant, his widow, to whom he had been married for two months. The deceased left nothing to the respondents who were his four adult daughters. They were children of a marriage between the deceased and Gay Christine Lathwell ('Gay') who were married in 1968 and divorced in 2001, only a few months before the deceased's marriage to the appellant.
2 It was not in dispute that from the date of their marriage, the deceased and Gay ran a 2,200 acre farming property in Donnybrook. The deceased also ran an electrical contracting business. The farm carried up to 3,000 sheep and 400 head of cattle. The four daughters were brought up on the farm and each of them contributed to the day-to-day running of the property. In November 1994, Gay suffered a burst cranial aneurysm. She was in hospital for eight months and in 1995 she moved to the Bunbury Regional Hospital and subsequently to the Donnybrook District Hospital. At the time of the hearing before the master, she was institutionalised and took no part in the proceedings.
3 In 1996 Gay commenced property settlement proceedings in the Family Court. These were concluded in 1998 and it was a term of the settlement that Gay would make no claim upon the estate of the deceased after his death.
4 In 1996 there was a complete breakdown of the relationship between the deceased and his four daughters. They left the farm in acrimonious circumstances. On the respondents' uncontested evidence, the deceased had become increasingly violent and abusive in his behaviour, at least towards one of the respondents and perhaps to others. In March 1996, the deceased told Amanda, the second respondent, that he did not want her to leave the farm as he did not want the responsibility of looking after his wife, but Amanda resolved to leave. Her sisters supported her decision. The deceased then announced that if she was to go, then 'you all go'. He threatened to kill the girls if they left. There was physical aggression shown by the deceased when they attempted to drive away. All four daughters left the farm at this point. After that, an effort was made to reach an accommodation with the deceased and settle issues between them but this effort came to nothing.
(Page 5)
5 The deceased and the appellant became acquainted in the early 1990s and in 1997 the friendship became closer. In that year the deceased became unwell and he was diagnosed with cancer which was inoperable and terminal. During his treatment with chemotherapy, he stayed with the appellant. In 1999 the deceased and the appellant moved into a property in Bunbury. In 2001, as mentioned above, the deceased divorced Gay.
6 Master Sanderson was of the opinion that the disposition of the deceased's estate effected by his will, was not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of his daughters. In the exercise of his discretion the master ordered that the net estate of the deceased be divided into five equal shares, with one share going to each of the four daughters and his widow.
7 The master referred to, and adopted the principles as stated in Pogorelic v Banovich [2007] WASC 45 [4] - [12]. Since the master's decision, this court has published its reasons in Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 in which the principles are discussed in more detail. As there is no issue about the proper principles to be applied when deciding an application of this kind, it is not necessary to say anything more about the principles stated in those cases.
8 Each of the respondents filed two affidavits and information contained in them was set out by the master in his reasons as follows:
Camille left school after year 11 and obtained a hairdressing apprenticeship in Bunbury. She attended a TAFE course one day a week for three years. She worked in Bunbury, Busselton and Perth. She boarded everywhere she went. In 1989, she wanted to go back to live on the farm and so she obtained a hairdressing job in Collie.
Some time thereafter, she commenced business in Donnybrook. She was financed into this business by her father and she says that over the years she repaid his initial investment. After March 1996 and the breakdown of the relationship with her father, she gave up that business. She commenced another business in Donnybrook with money she borrowed from the bank.
Camille says that between March 1996 when she and her siblings left the farm, she helped pay for her sisters' general living costs as well as her mother's costs. There is no evidence that as at the date of death of the deceased Camille owned any real property. It would appear that her assets were limited to the business in Donnybrook. Apart from that business, she appears to have owned nothing of substance.
(Page 6)
- Amanda left school at 15 and undertook a TAFE course in Bunbury in office and secretarial studies. This was a one year course which ran four days a week.
After Amanda finished her course, she did a traineeship in Bunbury and she did the books for her father's electrical business in Donnybrook. In 1989, she obtained employment at a building society in Donnybrook. This lasted for 12 months. She then obtained employment with an insurance company in Bunbury. She remained there until the end of 1992. In 1992, she worked for a clothing store in Bunbury and had a second job as a waitress. In January 1994, she went overseas and only returned to Australia in November of that year when she learned of her mother's illness. Thereafter she returned to doing the books for her father's business.
In 1996, she obtained employment with FAI in Bunbury. It was part-time employment that provided little income. She was, as she says, 'totally broke'. She did subsequently obtain nearly full-time work with an insurance company. In 1996, she met Paul Davidson. They married in 1998. They bought land in Donnybrook and built a house. Amanda became pregnant and was too ill to work during the course of her pregnancy. Although the exact nature of the illness is not detailed, it would appear to be a liver complaint. When the couple's child was born, she was ill and required specialist medical treatment. The couple were forced to refinance their home in Donnybrook to cover their medical expenses. That appears to have been their position in 2001. Subsequently they were forced to sell that house (in 2003) and they now have a block with a mortgage.
Bettina was, it seems, the daughter of the deceased most interested in running the farm. She attended St Mary's School in Donnybrook to year 7 and then Bunbury Catholic College for years 8, 9 and 10. She was keen on horses and had her own horse for most of the time. She used this for mustering on high rocky parts of the farm. By the time she was in year 10, she would take at least a day off a week from school to help run the farm. She left school at the end of year 10 and worked on the farm. The deceased told her that there was no point in her going on with school as she was not clever enough and one day she would have the farm.
After leaving school (in 1990) she went and did a business course at TAFE. But she continued to work on the farm and she appears to have been instrumental in actually maintaining the farm as a going concern. She received no remuneration for her efforts.
In 1993, aged 19, while she was still doing farm work full-time, she started holiday riding camps. She was assisted by her mother and her younger sister. The whole enterprise was financed by her own efforts - her father contributed nothing. She pursued her interest in equestrian events - again financing her activities herself.
(Page 7)
- During her mother's illness, Bettina continued to work on the farm and play her part in looking after her mother. But eventually this position became intolerable. She left the farm, taking with her the horses which were her property. She eventually had to sell those horses to pay the rent. She essentially walked away from the farm with nothing.
By 2002, Bettina was working at a racing stable. In 2003, she moved to an old house on the property where the racing stable was situated. She studied part-time at TAFE. Her only assets were two horses.
In 2004, in an effort to provide herself with a career path, she returned to TAFE to study human massage. She completed that course while working at the racing stable. By this time, she was living in New South Wales. She has worked intermittently at massage clinics. It is not entirely clear as at the date of death of her father what assets Bettina held. In her affidavit sworn 5 October 2006, she listed her assets as two horses, a small motor vehicle and a 1994 Landcruiser, a horse float and a block of land in Busselton. She says that the block of land was bought for $133,000 and she owed $80,000 under a mortgage. She had savings of $25,000.
Paulette completed schooling to year 12 and then undertook an accounting and business studies course at TAFE. In 1998, she obtained employment in Bunbury as a secretary. She went to live in Boyanup. In 2000, she left her secretarial job in Bunbury and took a number of part-time jobs. In 2001, she followed up her passion for horses and obtained a job managing a 100 acre horse stud. As at the date of her father's death, she had no assets of any significance. Her position had not changed significantly as at the date of trial. [24] - [36]
9 The master also made the following observations:
In considering whether the deceased made adequate provision for the [respondents], there are two other factors which should be taken into account. First, there is the contribution made by all of the [respondents] to the Estate of the deceased. In large measure, the deceased's Estate was made up of farming properties. Doubtless most of the value in those properties attached to the real estate. But there is no doubt from the uncontradicted evidence of each of the [respondents] that they contributed significantly to the running of the farm over many years. It is not possible to put a dollar value on their contribution: nor is it possible to put a value on the Estate if they had not contributed as against their having contributed. But there can be no doubt that in part, the value of the deceased's Estate is attributable to the efforts of his children.
Second, it clearly emerges from the evidence that the deceased was mean in his dealings with his children. While he demanded continual assistance in running the farm, he refused to contribute anything which would have allowed the [respondents] to enjoy their childhood. It may be the case, as was submitted by counsel for the [appellant], that the deceased did from time to time provide horses so each of the girls could indulge their
(Page 8)
- enthusiasm for equestrian events. But the contribution was minimal. The fact that so little was put by the deceased into the children must necessarily have contributed to the assets available in his Estate. Again, it is not possible to put a dollar value on this aspect of the family relationship. But it must be acknowledged that in spending nothing on his daughters, the deceased reserved the assets for his Estate. [37] - [38]
10 As to the relationship between the deceased and the appellant, the master said:
It should also be noted that the [appellant] really commenced her relationship with the deceased in or about 1997. The evidence makes it clear that from the date the deceased was diagnosed with terminal cancer until he passed away, he was supported by and enjoyed the company of the [appellant]. The deceased and the [appellant] were close for around four and a half years. The [appellant] says that during the deceased's illness her daughter's fiancé ran the farm. No detail was provided. There is no evidence to suggest the [appellant] herself contributed to the deceased's estate. [39]
11 The master said that he was satisfied that the will of the deceased did not make adequate provision for his daughters taking into account the asset position of each of the respondents, the relative size of the estate, the contributions made by the respondents to the estate and the limited claims on the bounty of the deceased by the widow [40].
12 The master held that he was satisfied that in each case there was sufficient evidence available from each of the respondents' first affidavits to ascertain their financial position as at the date of death of the deceased and he also concluded that as at the date he made the order that the four daughters had very limited financial means.
13 The master also dealt with a submission that there was disentitling conduct on the part of the daughters. The master said:
It was the uncontested fact that between March 1996 and the death of the deceased in late 2001, there was no contact between the deceased and the [respondents]. It was the [appellant's] case that the failure of the [respondents] to make contact with the deceased was conduct which would justify a refusal to make an order that they benefit from the Estate.
It is convenient at this point to say something of the circumstances of the [respondents] leaving the farm. As I have mentioned above, in 1995 the [respondents'] mother was moved from Perth to first the Bunbury Regional Hospital and then to the Donnybrook Hospital. In March 2006 Amanda decided that she could no longer remain on the farm. She told her father she was intending to leave. On the [respondents'] uncontested evidence the deceased was becoming increasingly violent and abusive in his
(Page 9)
- behaviour at least towards Amanda and perhaps the other children. Amanda says that the deceased told her that he did not want her to leave the farm as he did not want the responsibility of looking after his wife. But Amanda had resolved to leave. Her sisters supported her decision. The deceased then said: 'If you go, you all go'. He threatened to kill the girls if they left. As they attempted to leave in the car the deceased pulled Amanda's seatbelt bruising her neck and chest. He locked the gate so that they could not get out. But eventually they managed to drive away. It was clear from the way that each of the [respondents] gave their evidence that this incident was highly distressing. It represented awful treatment of the [respondents] by the deceased.
In my view, the plaintiffs behaved perfectly reasonably in not making greater efforts to contact their father. They were effectively evicted from the farm, their home, in March 1996. After that eviction they tried on several occasions to reach an accommodation with their father and settle issues between them. These efforts came to nothing. But there was no want of trying on the part of the [respondents] - particularly so in the case of Camille. In my view, there was nothing further that could have been done.
To state the position in that way, while an accurate reflection of the evidence, does not convey the depth of feeling each of the [respondents] had for their father. Each of the [respondents] gave evidence and each of them struck me as strong women. But each of them was reduced to tears. In my view, there was no doubt that each of them wanted to love their father; each of them were mourning their unhappy childhood. They exhibited some resentment towards the deceased, but no outright hatred or contempt. They had no reason to believe that any approach they may have made to their father would have been reciprocated. Quite the reverse. He stated he wanted nothing to do with his children and he maintained that position.
In my view, there was nothing in the behaviour of the [respondents] which could be said to amount to disentitling conduct. [41] - [45]
14 When it came to making his orders, the master said:
The precise value of the Estate as at the date of the hearing of this application does not clearly emerge from the evidence. That is because the precise value of the properties is uncertain. But it is reasonable to assume that the present value would be somewhere around $3.8 million dollars.
In my view, a proper division of the Estate would be to order that all the assets of the Estate be realised and the Estate then be divided equally between the four [respondents] and the [appellant]. This would mean that each party would receive approximately $750,000.
I have reached that conclusion for these reasons.
(Page 10)
- First, there is no reason to differentiate between each of the [respondents].
Second, there is no one part of the property to which either the [respondents] or the [appellant] have any particular claim. The [appellant] is resident in the Bunbury property, but that forms such a significant part of the Estate that to leave that to the [appellant] would, in my view, be an unreasonable outcome. That means all of the property must be sold.
Third, there is no particular warrant for giving a greater proportion of the property to the [appellant] as against the [respondents]. I have already dealt with the respective contributions of the parties.
Finally, there is no great difference between the asset position of the [respondents] and the [appellant]. The [appellant], for her part, does not have any dependents or any calls upon her resources of any significance. In my view, there is no reason why she should benefit particularly from the assets of the Estate. [46] - [52]
The appellant's grounds of appeal
(a) Ground 1 alleges that the master erred in fact in making a determination that adequate provision for proper maintenance, support, education or advancement had not been made for the respondents because there was no or no sufficient evidence of their financial circumstances at the time of the deceased's death.
(b) By ground 2 the appellant alleged that the master erred in law in directing himself that he could exercise his discretion as to what would constitute adequate provision for the respondents when he had no, or no sufficient evidence that the financial position of the respondents at the time of the hearing or of their aspirations or needs on which to form an opinion as to how to exercise his discretion.
(c) By ground 3 the appellant alleged that the master erred in law in the exercise of his discretion as to what provision would provide the respondents with adequate provision in that he gave consideration to irrelevant considerations and disregarded fundamental principles of law in determining what would be adequate provision in that he:
(i) rewrote the will of the deceased to arrive at the proper distribution of the estate and failed to address the question as to what would constitute adequate provision;
(ii) applied notion[s] of fairness in his determination;
(iii) disturbed the provisions of the will to a greater extent than was necessary to provide adequate provision;
- (iv) treated the appellant's expectations under the will as being in competition with the claims of the respondents;
(v) placed undue weight on the past contributions of the respondents to building up the estate; and
(vi) treated the applications of the four respondents as a class action.
- (d) By ground 4 the appellant alleged that the master erred in law in directing himself that the conduct of the respondents towards the deceased was not disentitling conduct when the respondents were aware for some years before his death that their father was seriously ill and had cancer but made no effort to contact their father prior to his death, including failing to distinguish between the conduct leading to the estrangement between the respondents and the deceased and the conduct of the respondents following their becoming aware that the deceased was seriously ill.
Grounds 1 and 2
15 Since the hearing of the case before Master Sanderson, a practice direction (Practice Direction No 4 of 2008) has issued, replacing Practice Direction No 11 of 2007, to deal with applications of this kind. The practice direction is necessary because, perhaps in this State, as in other States, applications of this kind are often characterised by the presentation of affidavit evidence which poorly addresses the evidence which must be led. The 2008 practice direction requires that the applicant's affidavits must set out in statement form details of the applicant's assets and liabilities and income and expenditure and that where there has been any significant delay between the date of death and the date of the affidavit, the applicant's financial position at each of those dates should be addressed.
16 The respondents' affidavits did not contain any statement of assets and liabilities or statement of income and expenditure. Nevertheless, in my opinion, there was sufficient evidence to allow the master to make his findings about the financial position of each of the four daughters as at the date of death and as at the date of the hearing.
17 None of the daughters were able to accumulate any moneys before they left the farm. The three elder daughters left school before completing Year 12. The youngest daughter Paulette completed schooling to Year 12. There was no evidence that any of the daughters had any unforeseen luck which produced any unexpected income or assets. I will refer to the
(Page 12)
- uncontradicted affidavit and oral evidence of the four respondents even though to a large degree it duplicates what the master set out in his reasons.
18 The first respondent, Camille, deposed that she worked until 1997 in a hairdressing business. That business appeared to have been owned by the deceased, because the lease and all bank accounts were in his name. When Camille left the business she did not receive any long service leave pay or holiday pay although she had worked in the business from 1989 to 1997.
19 It was necessary for Camille to borrow $20,000 from a bank to enable her to set up her new hairdressing business in Donnybrook. It may be inferred that Camille had no means of accumulating any assets before her father died. In her second affidavit Camille revealed that after the death of the deceased, she became engaged to a man who worked in the north of the State and so she sold her hairdressing business and moved to Karratha. She earned $25 per hour in her employment and her fiancé worked as a mechanical fitter. In 2004, the two of them purchased a house for $300,000 in Bunbury having borrowed money to do so. They owed $260,000. As at the date of her supplementary affidavit in 2006, she had $492 in her bank account and a credit card debt of $4,000. In oral evidence, Camille said that one of her bank accounts only had $6 in it, her credit card debt was $3,000 and the bank debt was $256,000.
20 The second respondent, Amanda, said that she completed a TAFE course in office and secretarial studies after she left school at 15. This was a one year course. She worked on the farm and in her father's electrical business doing the books. She subsequently worked at Home Building Society for a time, but lost her job and then about the time she was about 18 or 19, went back to the farm. Next she worked at FAI Insurance before again returning to the farm and later worked in a women's clothing store in Bunbury. She travelled overseas for the greater part of 1994. In 1996, she met a man who she had married by the time she made her first affidavit in 2002. In Amanda's second affidavit, she deposed that she and her husband had put enough money together to place a deposit on a block of land in Donnybrook on which they built a house, but expenses overcame them and they had to refinance their house and by 2003, they were forced to sell the house to pay living expenses. In 2006 she was working in the north-west, earning $56,000 per annum and had saved enough to put a deposit on a block of land in Busselton valued at $133,000, but upon which there was $106,000 owing. She and her husband had a $35,000 car loan and a credit card debt of $5,800. She was
(Page 13)
- also suffering from health problems. At the hearing Amanda gave evidence that there had been no subsequent change to her circumstances.
21 The third respondent, Bettina, did not have a job at the time she left the farm in 1996. She was 22 at the time and was working on her father's farm. For a while Bettina looked after her mother full time and she then worked briefly with horses, earning only her keep. She also picked cauliflowers to earn money. In her second affidavit (sworn in 2006), Bettina said that in 2002, when she swore her first affidavit, she was working part-time and was not earning enough to keep herself. In her second affidavit she deposed that she had moved into an old house on a property where racing stables were situated and where she worked and that her only assets were two horses, one of which she had to sell to make ends meet. She then studied and worked as a masseuse for a time but had to give this up because she suffered pain in her hands and back. She deposed that in 2006 her assets were two horses, a Laser car, a 1994 Toyota Landcruiser, a horse float and a block of land valued at $133,000 on which she owed $80,000. She had savings of $25,000. At the time of the hearing she said the only change to her circumstances were that she had used some of her savings.
22 The fourth respondent, Paulette, after schooling and TAFE, worked in Bunbury as a secretary for two years and then took up three part-time jobs living in Boyanup. In 2001, she worked managing a 100 acre horse stud. In her first affidavit sworn in 2002, she said she had no capital assets. In her second affidavit sworn in 2006, Paulette revealed that in January 2005 she took up a position as an administrator/accounts manager with the Small Business Centre for Bunbury/Wellington, but that her health was not good and in September 2006, she had three weeks sick leave because of troubles with her back which for a time disabled her so that she was not able to walk. In her affidavit she deposed that she had to resort to her savings to get herself back into the position where she could walk, that her only assets consisted of a house where she lived, but with a mortgage of $425,000. In her affidavit she said that she was facing the situation where she would be only able to meet her mortgage repayments for the next 12 to 18 months and then would have to sell the house. At the hearing she said that she was now engaged and her debt on the property had increased to $495,000.
23 The three older respondents had only modest jobs and therefore it may be inferred - modest incomes. After the death of the deceased, Paulette had a more substantial job and it may be inferred - a reasonable
(Page 14)
- income; but she had serious health problems which affected her financial position to the point where she faced the loss of her house.
24 It may be inferred from the evidence given by each respondent that as at the date of the death of the deceased, none had other than modest net assets and modest incomes. No evidence was necessary to prove that the respondents each required for their proper maintenance, support or advancement in life, a home of their own to live in, help with ordinary expenses of living and some capital to provide on-going maintenance and support for the exigencies of life.
25 In my opinion, grounds 1 and 2 must be dismissed. There was sufficient evidence to support the master's conclusion that given the circumstances of the respondents the size of the estate and with the appellant as the only other claimant to whom the deceased owed a moral duty, the will did not make adequate provision for proper maintenance, support and advancement in life of the respondents.
Ground 3
26 In this ground, the appellant asserts that the master 'rewrote the will', 'disturbed the provisions of the will to a greater extent than was necessary to provide adequate provision' and 'applied notions of fairness in his determination'.
27 These points are merely assertions. The review of the evidence set out above reveals that the master did not disturb the provisions of the will to a greater extent than was necessary to provide adequate provision to the respondents.
28 The part of ground 3 which complains that the master applied a 'notion of fairness' in his determination, is a suggestion that the master disregarded the task imposed upon him by s 6 of the Act. In my opinion there is nothing to sustain that contention. The mere fact that he divided the estate equally between the parties does not mean that the master ignored the considerations in s 6.
29 The particular that contends that the master placed 'undue weight' on the past contributions of the respondents to building up the estate, is an acknowledgement that past contributions of the respondents are relevant. They are relevant to the issue of the 'moral duty' of the deceased to make adequate provision for the proper maintenance, support, education and advancement in life of persons within the statutory class. The nature and extent of that duty has to be determined by reference to the totality of the
(Page 15)
- relationship between the claimant and the deceased and contemporary accepted community standards. See Devereaux-Warnes [86] (Buss JA). The master did not place 'undue' weight on the past contributions.
30 That part of ground 3 which alleged, in effect, that the master should not have taken into account 'the appellant's expectations under the will as being in competition with the claims of the respondents' has no merit. The master properly took into account the position of all people within the statutory class of claimants.
Ground 4
31 The deceased gave reasons in his will why he had left his whole estate to the appellant. The will read in part:
I DECLARE that the reason I have not made provision under my Will for my daughters is due to my having made adequate financial provision for each of them during my lifetime AND FURTHER, for the last 5½ years, my daughters have had no contact with me even though I have become very ill in that time but there is now complete estrangement between us. … For the past FIVE (5) YEARS my spouse and her children have cared for me and provided me with support.
32 He further declared in his will that he did not wish to have his daughters present at his funeral.
33 Section 6(3) of the Act empowers the court to refuse to make an order in favour of any person on the ground that that person's conduct is such 'as in the opinion of the court' to disentitle that person to the benefit of an order. In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 156, Gibbs J said that the question whether conduct is sufficient to disentitle an applicant to relief, must depend not only on the nature of the conduct itself, but also to some extent, on the strength of his need or claim to the provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been that person's conduct to disentitle them to the benefit of any provision. Conduct amounting to disentitling conduct must refer to character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator. See Delacour v Waddington (1953) 89 CLR 117, 127. In Goodchild v James (1994) 13 WAR 229, 239, Ipp J said that an estrangement between testator and child may reduce the moral claim the child might have to maintenance or support or advancement. The word 'estrangement' does not in fact describe the conduct of either party. It is merely the condition which results from the attitudes or conduct of one or
(Page 16)
- other or both of the parties. If the estrangement is entirely caused by the unreasonable conduct or attitudes of the testator and sustained by the unreasonable conduct of the testator, then the estrangement alone could not amount to disentitling conduct on the part of the applicant.
34 Evidence of the reasons the testator gives for making a will is admissible. The reasons given do not prove the truth of the statements made, but evidence of the reasons is received only as evidence of the testator's subjective reasons. The reasons are not conclusive. See In re Green (decd), Zukerman v Public Trustee [1951] NZLR 135, 141 and Hughes v National Trustees Executors & Agency Co of Australasia Ltd, 152. The deceased's statement that he had made adequate financial provision for his daughters was not borne out by the evidence.
35 It is true that the deceased and his daughters were estranged, but the estrangement was due to the conduct of the deceased and the history of the deceased's dealings with his daughters as set out in the master's reasons, sustaining the master's conclusion that the respondents 'behaved perfectly reasonably in not making greater efforts to contact their father … [and] … they had no reason to believe that any approach they may have made to their father would have been reciprocated. Quite the reverse. He stated he wanted nothing to do with his children and he maintained that position' [43] - [44].
36 The case of the appellant that there was disentitling conduct was based merely upon the fact that between March 1996 and the deceased's death in 2001, there was no contact between the deceased and the respondents. As the master correctly held there was nothing in the behaviour of the respondents which could be said to amount to disentitling conduct.
37 Ground 4 must be dismissed.
38 The appeal should be dismissed.
39 BUSS JA: I agree with Pullin JA.
40 LE MIERE AJA: I agree with Pullin JA.
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