Hampson v Hampson

[2010] NSWSC 217

CITATION:	Hampson v Hampson - Estate of the late Iris Willena HAMPSON [2010] NSWSC 217 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9, 10, 11 March 2010
JUDGMENT DATE :	26 March 2010
JUDGMENT OF:	Bryson AJ at 1
DECISION:	2009/00287749: (1) Order that the plaintiff be allowed the period up to and including 27 February 2009 for her application. (2) Order that by way of provision for the plaintiff Lynne Michelle Hampson and in lieu of the provision made for her under the Will of the testatrix she be paid $300,000 out of the assets of the testatrix, with interest at six per cent per annum calculated from the date on which she vacates Lot 2. (3) Order that in the calculation of entitlements on distribution the provision of $300,000 be made available by charging $60,000 against the assets otherwise distributable to each of Gary Geoffrey Hampson, Donald William Hampson and Robert Keith Hampson and by charging $40,000 against the assets otherwise distributable to each of Ian Charles Hampson, Gaye Maree Devoy and Glen James Hampson. (4) Costs reserved. (5) Order 1 of the orders of 7 April 2009 ceases to have effect. (6) Direct that the plaintiff Lynne Michelle Hampson give up occupation of Lot 2 when at least $50,000 of the provision hereby ordered shall have been paid to her; but she is not required to give up occupation before 28 days from the date of these orders. 2008/00281293: (1) Dismiss the proceedings with costs. (2) Order that the costs payable to the defendant under these orders be retained by him out of assets otherwise distributable to Glen James Hampson. (3) Direct that Glen James Hampson give up occupation of Lot 12 by or before 28 days from the date of these orders.
CATCHWORDS:	EQUITY – Proprietary estoppel – Geoffrey owned farm at Main Arm and had seven adult children – Geoffrey died in 1995 and left all land to widow Iris – Iris died in 2007 and left all property all seven children equally – youngest son Glen claimed entitlement by proprietary estoppel to part of land with old cottage based on assurances and encouragement by Geoffrey – consideration of protection of Iris as registered proprietor - HELD Glen’s claim failed because he did not obtain findings that the assurances and encouragement he alleged had actually happened. - FAMILY PROVISION – Claims by adult son aged 43, owned business earning $35,000 p.a. net but no other significant assets, left about $200,000 as one-seventh share of mother’s estate – HELD adequate provision in the Will, claim failed. Claim by adult daughter aged 38, no significant assets, supporting parent of two children aged 3 and 11, no employment, left about $200,000 in Will – HELD provision $300,000 ordered in lieu of benefits under Will. Consideration of significance of other claims and balancing process.
LEGISLATION CITED:	Conveyancing Act 1919, ss 23C, 23D, 54A Family Provision Act 1982, s9(2) and (7), s9(3), s16 Real Property Act 1900, s42(1), s124, s135 Transfer of Land Act 1893 (WA)
CATEGORY:	Principal judgment
TEXTS CITED:	Bahr v Nicolay [No 2] (1988) 164 CLR 604 Bladwell v Davis [2004] NSWCA 170 Bogdanovic v Koteff (1988) 12 NSWLR 472 Plunkett v Bull (1915) 19 CLR 544 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41
PARTIES:	2008/281293: Glen James HAMPSON (plaintiff) Gary Geoffrey HAMPSON (defendant) 2009/287749: Lynne Michelle HAMPSON (plaintiff) Gary Geoffrey HAMPSON (defendant)
FILE NUMBER(S):	SC 2008/281293; 2009/287749
COUNSEL:	R D WILSON (plaintiff Glen Hampson) J NEEDHAM SC/ P KERR (plaintiff Lynne Hampson) M B EVANS (defendant Gary Hampson)
SOLICITORS:	Family Law Solutions ABN 67 751 846 775 (plaintiff Glen Hampson) Trenches McKenzie Cox (plaintiff Lynne Hampson) Hungerford Lehmann & Andrews (defendant Gary Hampson)

- 39 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday, 26 MARCH 2010

Estate of the late Iris Willena HAMPSON
2008/00281293 - Glen James HAMPSON v Gary Geoffrey HAMPSON
2009/00287749 - Lynne Michelle HAMPSON v Gary Geoffrey HAMPSON

JUDGMENT

1 HIS HONOUR: Iris Willena Hampson of Main Arm near Mullumbimby New South Wales died on 28 April 2007 and this Court granted probate of her Will to her eldest son Gary Geoffrey Hampson on 9 July 2007. She made her Will, which was witnessed by her two sisters, on 26 April 2007, two days before she died, and she is not known to have made any earlier Will. There was a body of evidence about the circumstances in which the testatrix made and signed her Will, but this does not call for examination as the grant of probate establishes the validity of the Will. After appointing her eldest son sole executor and directing payment of debts, funeral and testamentary expenses she gave, in one gift, the whole of her estate to her seven adult children. As a practical necessity the executor must convert the assets into money and divide it equally among the seven beneficiaries; there is no prospect of their holding any property together.

2 The late Mrs Hampson’s principal assets are two parcels of land in Main Arm Road, Main Arm and a third parcel at She Oak Road, Goonengerry. Mr Valuer Mark Cochrane of Mullumbimby made a valuation (exhibit A) which was not contentious and states his opinion on values on 2 March 2010 shortly before the hearing. He valued Lot 2 at $600,000 ($420,000 for the land and $180,000 for improvements) Lot 12 at $500,000 (and the rental value at $300 per week) and the land at Goonengerry at $440,000.

3 Lot 2 is said to contain 15.65 hectares, and the house which the testatrix occupied as her home stands on Lot 2. It is said that Mrs Hampson’s late husband bought the farm in 1964 and built the house in 1978. The house is a brick and tile dwelling. There is also a shed, which is occupied as a dwelling by the plaintiff Lynne Michelle Hampson and two of her children, and two demountable dwellings on the land; from evidence and photographs these structures are of very poor quality. There is no current rural activity on the land, of which the valuer said “This parcel lacks the quality of creek frontage, offers no privacy, is mostly steep and is affected by road noise”. Robert Keith Hampson, one of the testatrix’ sons, is now in occupation of the house and he gave evidence that he is willing to buy Lot 2 for $650,000. The executor proposes to sell Lot 2 to Robert, although no binding contract has been made. Robert said in evidence to the effect that he is able to finance the purchase and has bank approval for finance on the security of Lot 2 and a duplex dwelling at Brunswick Heads which he owns.

4 Lot 12 is situated nearby and is said to contain 4.009 hectares. It is the site of a much older house, which was the family home before the new construction in 1978. It has been occupied at most times since 1989 by Glen James Hampson, the other plaintiff, and he claims to be entitled to ownership of it.

5 The executor has been unable to take any steps towards the sale of Lot 2 and Lot 12 because of restraints imposed by injunctions by this Court (Ward J) on 7 April 2009 pending disposition of the proceedings.

6 The land at Goonengerry is about 20 to 25 kilometres from Mullumbimby. It is fenced but there are no other improvements. In the past there were 15 or 20 cattle there, and some banana trees and other crops at different times. The executor has listed the land at Goonengerry for sale, and has received an offer of $500,000, which he did not accept, as he hopes to obtain a higher price. It is vacant land, said to contain 28 hectares, and there is no dwelling.

7 While findings about valuation cannot be precise, I will act on the basis that Lot 2 is worth $650,000, Lot 12 is worth $500,000 and the Goonengerry land is worth $500,000; a total of $1,650,000. Some allowance should be made for costs of realisation. Other assets were disclosed in the probate inventory: $9,259.59 together with $19.71 interest in the National Australia Bank at Mullumbimby and general household items said to be valued at $4,000. In the context of the matters in dispute these are not significant. For reasons which appear later, I adopt $162,458.62 as my estimate of the costs payable out of the assets of the testatrix. Allowing for something for costs of realisation and for contingencies, a one-seventh share would be in the order of $200,000.

8 There are severely conflictual relationships among various members of the family, which have meant that reasonable co-operation in pursuit of shared interests has not been available. There are non-molestiri provisions in the injunction, and there are references in the evidence at various places to aggressive conduct, complaints to and involvement of police and applications for apprehended violence orders.

9 While the hearing was pending there was a mediation, which unfortunately did not produce any outcome, although the case is in a class where mediations are often successful. The costs of the litigation as shown by evidence are so remarkably high that I will embark on further investigation of them. Affidavit evidence of the defendant’s solicitor estimates the defendant’s costs of Glen’s proceedings at $115,559.02 and of Lynne’s proceedings at $73,908.75. Affidavit evidence of Lynne’s solicitor estimates her costs at $88,549.87 and Glen’s solicitor estimates his costs at $118,200. As the hearing took three days and not an estimated four days not all the estimated amounts may have been incurred. The total of the estimates is $396,317.62. Glen also incurred $14,077 to a solicitor who acted for him before litigation. The costs have become so high as to become an impediment to just disposition; if corresponding amounts had been used to adjust the dispositions in the Will, agreed resolution should have been easy. An old pagan would have said that the gods revealed their destructive intentions in the proverbial way.

10 The testatrix did not leave a small estate, but in relation to the needs of the adult children and their claims on her bounty the resources are not ample. No one in the family is well-off and their circumstances range from strained at best to severely adverse at worst. Any decision to increase the provision for one member of the family requires careful attention to the impact in reducing provision for others. The affidavits in the proceedings contained many passages which were of little use, of no use or frankly inadmissible; this contributed to the length of the affidavits and no doubt to the costs. At the hearing counsel conducted the proceedings in ways which limited, but unfortunately did not entirely exclude the intrusion of issues of marginal significance. Some observations I made in Bladwell v Davis [2004] NSWCA 170 at par [11] (with the concurrence of Ipp JA and Stein AJA) are applicable here.

[11] As recurringly happens, it is not possible to meet all the claims on the testator's bounty which have been shown to exist. Determination whether there is power to make an order under the Family Provision Act 1982, and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the testator's bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the testator's bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other such person. Complete success on the appeal would bring no more than an additional $60,000 in provision for the claimant, unless the Court of Appeal took a course which the claimant did not ask the Master to take, and decided to impose the burden of some or all of the provision on legacies given to the four other family members.

11 All seven of the testatrix’ adult children are of course eligible persons as that term is used in the Family Provision Act 1982. There were oblique references in evidence to the possibility that four of the grandchildren of the testatrix may also be eligible persons, but they took no part in the proceedings nor did anyone representing the interests of those of them who are minors. It did not clearly appear whether or not any of them were eligible persons as defined, and met the dependency requirement in par (d)(i) of the definition of “eligible person” in s 6(1), and there is no surplus of resources available after the claims of adult children are met.

12 All three parcels of land were owned in his lifetime by the testatrix’ late husband Geoffrey Charles Hampson as registered proprietor under the Torrens System. He left all his assets to the testatrix in his Will. He died on 23 July 1995 and she obtained probate from this Court on 21 December 1995. She transmitted registered proprietorship to herself by Transmission Application 0917035Q dated 8 December 1996 and registered soon after; and was still the registered proprietor at her death. She had the benefit of the protections given by the Real Property Act 1900 to a registered proprietor and in particular the protection given by s 42(1) under which she was to “… except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, that are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded …” with exceptions none of which are now relevant. This protection is enhanced by ss 124 and 135.

13 There was no claim in the present proceedings and I saw no room for a claim that the exception relating to fraud could have any operation; no fraud was charged against her and there is no basis in her conduct for such a charge. Her entitlement to these protections is not affected by the circumstance that she obtained title under a testamentary gift; see Bogdanovic v Koteff (1988) 12 NSWLR 472 (CA).

14 However the testatrix and her executor may be subject to a personal equity of the kind considered in Bahr v Nicolay [No 2] (1988) 164 CLR 604 where, dealing with the Transfer of Land Act 1893 (WA) the High Court held that the interests of the registered proprietors were subject to a trust created by the conduct of those registered proprietors. Bahr v Nicolay was not a case where the registered proprietors were bound by notice of an equitable interest which already existed; in that case a registered proprietor would plainly be protected, and in Bahr v Nicolay the trust was created by the conduct of the registered proprietors themselves. There was a difference of view in the High Court on whether the trust created by the registered proprietors was an express trust or a constructive trust, but that does not affect the principle established. There were also differences in judicial expressions relating to the existence of fraud in that case, but they too do not affect the principle established.

15 It is not enough that a party claiming, as Glen does, an equitable interest or an equity in Lot 12 should establish some entitlement against Geoffrey and his estate; it is necessary to establish a personal equity enforceable in her lifetime against the testatrix as registered proprietor. It is also necessary for his claim to overcome the difficulties of the absence of any written declaration of trust or other written memorandum, having regard to ss 23C, 23D and 54A of the Conveyancing Act 1919.

16 Recurringly claims come before the Equity Division of proprietary estoppel in dwellings arising out of informal arrangements within families. In Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Brereton J stated the effect of the more important authorities. Notwithstanding the family context and the informality which comes with that, such claims should be carefully and critically examined, and the law of proprietary estoppel does not readily ratify keyhold tenure and word-of-mouth conveyancing around the kitchen table. The present case has characteristics which are fairly often encountered; the arrangements alleged were oral and were made long ago, the terms in which they were made are shown by evidence which could not produce high confidence of its detailed accuracy, and there is poor corroboration, or in the present case no corroboration of the promise. It would be easy for imprecise or casual discussion to pass through the interpretation of an interested person into a recollection of a concrete assurance or promise. There is great wisdom and public interest in the legislation which requires conveyances of interests in land to be evidenced in writing, and it cannot become a matter of course for that wisdom to be circumvented.

17 Facts and circumstances relevant to Glen’s claim to an interest in land of the testatrix may fall within the ample range of matters relevant to a claim under the Family Provision Act, notwithstanding that his claim of entitlement does not succeed.

18 Within the family Glen is often given the name Mary, and when that name is used in evidence it refers to him. Glen commenced his proceedings by Summons on 27 October 2008 and his claim appears in Statement of Claim filed on 18 September 2009. He claims (SC7) that about 1989 Geoffrey represented to Glen that he would give Lot 12 to Glen if Glen lived there and renovated the cottage on the land. There are particulars to the effect that the representation was oral, that Geoffrey promised Glen that he would transfer the land to Glen if Glen lived there and improved the cottage, and further that if Glen lived on the land and improved the cottage Glen would have a home for life; and that he subsequently affirmed the promise to transfer the land but not until the death of his wife. It is alleged (SC8) that in reliance on the promise and the expectation that the land would be transferred to him Glen acted to his detriment and commenced occupation of the land and improvement to the cottage. Particulars are to the effect that he has been in occupation continuously since 1989, has paid tradesmen and purchased building materials to improve the land, provided building materials for improvements from his business, provided materials to tradesmen and labourers in exchange for their labour on the cottage and provided his own labour. It is then alleged that Glen occupied the land with the approval and acquiescence of Geoffrey, that Geoffrey died without transferring the land to Glen and that thereafter Glen continued to occupy and improve the land with the approval and acquiescence of the testatrix. There is also an allegation (SC13) that he has contributed most of his time and resources to the improvement of the land but did not pursue other opportunities in the expectation that the land would be transferred to him.

19 The Statement of Claim goes on to make a claim under the Family Provision Act.

20 Glen’s claim is a claim against the estate of a deceased person, indeed two deceased persons, advanced after the deaths of both of them so that neither Geoffrey nor the testatrix has had any opportunity to deal with or answer the claim, or to state any facts with respect to it. The claim should be approached with the caution appropriate to such claims, stated clearly and fully in Plunkett v Bull (1915) 19 CLR 544; that case has often been referred to and the statements in it have often been acted on. The need for caution has special force in the present case where there is no written confirmation of the arrangement alleged, although ordinarily written confirmation is required by Statute, and Glen’s claim can only succeed if it falls within a limited exception established by judicial opinion. Further, it is necessary to establish a personal equity which was enforceable against the testatrix and to show that it was unconscionable of her not to give effect to Glen’s claim by her Will or in some other way. The Defence puts the whole of this claim in issue by denials or statements of non-admission, except for admitting that Glen continued to occupy Lot 12 for the testatrix’ lifetime from 1995 onwards (D7) and conceding that Glen occupied Lot 12 to the knowledge of Geoffrey. There is a defence of laches and acquiescence (D10) in failing to bring the claim while the testatrix was alive and could give evidence of her knowledge.

21 In his affidavit evidence Glen set out a long history of events relating to Lot 12. The old cottage remained on Lot 12 after the family took up residence in the home on Lot 2 about 1978. Donald the third son lived in the cottage for about 12 months during which the septic system and water tank were installed at Geoffrey’s expense. Then Donald with his wife and family moved to a cottage which Donald constructed on land which had been in the same parcel as Lot 2 but separated by Settlement Road. The lot given to Donald became Lot 1 DP 627031 and contains 0.7587 hectares. Severance from Lot 2 was effected by Deposited Plan 627031 registered on 30 September 1982. Donald and his wife and family occupied the cottage for some years, but they were divorced; and their divorce took effect on 21 December 1989 (Exhibit 2). Lot 1 and the house passed to Don’s former wife in a property settlement at about that time.

22 Gary lived in the cottage on Lot 12 from about 1979 to about 1985 and did not pay any rent. Then about 1985 Geoffrey gave Lot 11 to Gary, who built a house on Lot 11 and occupied it with his wife for some years. Gary separated from his wife in 1989, but he retained Lot 11. According to Gary’s evidence he told Geoffrey that he wished to rent the cottage on Lot 12, and Geoffrey clearly stated that he was not going to transfer Lot 12 to Gary, and did not ever say to Gary anything to the effect of offering to give Gary the cottage on Lot 12 if he renovated it and made it his home. Gary conducted a banana plantation on Lot 2, and for a while on part of Lot 11, for many years, but recently gave up the plantation and farm work. He no longer conducts any significant farming operation.

23 It is Glen’s evidence (affidavit par 21) “Dad told me that he had offered to give Lot 12 to both Gary and Don. I remember that Dad said to me ‘I said to both Don and Gary that they could either have Lot 12 or another parcel of land on the farm. They both said that they would rather have me cut off another parcel of land for them’ or words to that effect.“ Gary and Donald have both distinctly denied making any such arrangement. I find it improbable that Geoffrey made or offered to make any such arrangement with either of them, and I infer that it is improbable that he told Glen that he had done so.

24 Glen’s evidence shows, and other evidence confirms clearly that from about 1985 till 1989 the cottage on Lot 12 was occupied by Mr Al Cason. Glen moved into the cottage on Lot 12 about January 1989, and he has lived there ever since, except for relatively short absences. There had been no discussion with his father about the basis on which he was going to live there until he had been living there for a week or so. However his father had got Glen to assure him that he was very serious about moving to the house and would stay in the local area, not just move in for a while, leave, come back and then leave. He told his father he would like to move in and his father said that when Mr Cason went Glen could move in. According to Glen’s evidence, Geoffrey later changed his mind and spoke about his intentions in other terms. Even later, after Donald’s court case, Geoffrey came to the house and told Glen (t33/1) “Incidentally that is it, no way is any other of my children going to get anything until both your mother and I have died”. Glen understood that by saying this Geoffrey reneged on the gift. This occurred within the first six months, that is in 1989. This conversation took place in the parents’ home.

25 Glen’s oral account of the initial conversation differs somewhat from his affidavit in that in oral evidence he attributed to his father that his father said that Glen had to prove that he was going to stay there, to show him he would make it his home. The evidence does not show that these conversations took place in the presence of any third person, and there is no evidence that Geoffrey told any other person of the terms of the commitment he is alleged to have given. Glen said to the effect (T37) that on one occasion Geoffrey explained to Glen in his mother’s presence to this effect “… now everything is going to go to Mum … and then it will be up to Mum at the end of her death, before Lot 12 will become [Glen’s]”. He was talking about his Will.

26 Glen did not explain under cross-examination, in any way which I could regard as satisfactory or probable, why elements of this conversation with his father which if they happened were quite significant, did not appear in his principal affidavit or in a statement which he made to a solicitor who earlier acted for him. His evidence includes this passage (T37 line 37):

Q. When you say in that conversation your father said it would be up to your mother, I suggest he was saying to you it was going to be her decision as to whether you got Lot 12?
A. I suppose he was leaving on her bat or whatever, you know, leaving it all up to her.

Q. That is what you understood him to be saying at the time?
A. Yes

Q. And you accepted that?
A. Yes.

Q. So if it was decided to not leave Lot 12 to you that was a matter for her, she would make that decision?
A. Yes.

Glen says that he offered to his mother that Glen would pay the rates, quite often. Later (T41, 42) it was put to him that in continuing with the renovation work he knew that there could be a change of mind and if that happened whatever he had done on the renovations simply stayed with the property, he answered (T42A), “Well, I didn’t believe that it would happen, you know, though I suppose if it had had come to that then there’s nothing I probably could have done about it.” He did not ever speak to the testatrix specifically about leaving the property to him “… but it never come up really”.

27 Taking all Glen Hampson’s oral evidence together, the conclusion that it most strongly supports is that Geoffrey told Glen to the effect that the testatrix had a choice whether Glen would get Lot 12 and the house from her estate.

28 Glen’s affidavit evidence is as follows:

24. At or about the time I commenced occupation of the cottage on Lot 12 Dad said to me, "I offered this place to Gary and Don but they didn't want it. I told them both if they were prepared to renovate the cottage and make it their home then I would give it to them." He then said, "If you want me to cut off a block from the farm like I did for Gary and Don then I will but you can have this place [Lot 12] if you want to to live here and fix up the cottage," or words to that effect.

25. At or about the same time Dad also said to me, "If I give this place to you, you will have all that you need in life. You will have land and a home. You will not have to borrow any money to buy a home and I expect you to pay for everything from your savings and not have any debts," or words to that effect.

26. I then formed the intention at that time to make the cottage my home. I have never been interested in living anywhere else and I have lived my life the way Dad expected me to and I never borrowed any money until 2006 when at Mum's request I went down to Hay to help out my Aunt and bought an old house.

27. Dad was very unhappy about the outcome of Don's court case with his wife, and that Don's wife got to keep the land which he had given to Don. By this time I had completed some of the renovations to the cottage on Lot 12 in anticipation that Dad would transfer the title to me when I had finished. However, as a result as a result of the outcome of Don's court case with his wife, Dad said to me, "No other child of mine will put me through this again [referring to Don's court case]. Lot 12 will be yours one day but you will have to wait until your mother and I have died. You can live in it now and renovate it but it will not be yours until we have died," or words to that effect.

28. About 12 months before Dad died he was in Lismore Base Hospital to have an operation for stomach cancer. I was there with him with Mum and as he was being wheeled into the operating theatre he turned around and said to Mum, "If I don't come out of here, you make sure Mary gets his home.” Dad used to call me 'Mary'.

29. I have lived in the house on Lot 12 continuously since in or about 1989 except for a period when I travelled overseas in or about 1998. During the time that I was overseas I rented the house to my sister, Lynne. The total amount of rent I received from Lynne was about $9,000 which she paid to me upon my return. I subsequently used this money to build Lynne a 'day house' adjacent to Mum and Dad's home on Lot 2.

29 The statement attributed to Geoffrey at the hospital would be of limited significance, as he did survive the operation and continued to live for about 12 months thereafter. In any event I do not accept that the statement was made.

30 Glen’s evidence about oral arrangements with Geoffrey was strongly challenged in cross-examination. I have to say that Glen did not in a general way give me a good impression while giving evidence. However his life has not taken him into courses where he would be in any way practised in making a good impression or arguing a case and I should guard against letting a general impression of his demeanour govern the outcome. His evidence left me with the view that he is incapable of precision or clarity when narrating events. Some of the things he claimed he did not know or did not clearly know were quite remarkable: he seemed to assert that he thought that an Income Tax Return and an Income Tax Assessment were the same things.

31 There are some circumstances which support Glen’s general position. From about 1989 onwards and until the testatrix died he has acted in some ways as a person would act if he owned Lot 12 and the house on it. It has been a commonplace for Glen and other family members to speak of Lot 12 as Glen’s home, but not in the context of discussion of proprietorship; rather the reference has been to the place where Glen customarily lives. When Glen asserted that it was his home and he owned it, no-one agreed with him: the testatrix did not. Glen is not a qualified carpenter or tradesman in any of the building trades, but he has had many years working in the building industry doing the work of various trades without apprenticeship or other qualification, including bricklaying, concreting, gyprocking, carpentering and labouring for other trades. He says and I accept that he has carried out many renovations and improvements to the house on an ongoing basis. He has used his own labour on building work, and used building materials and services and the work of tradesmen in a system of exchange for building materials provided by him as the tradesmen he dealt with needed them. He has also purchased materials and paid tradesman and he says “this work has been carried out on a continuing basis since the date I commenced to occupy the home … 1989 to the present day” (Aff 33). He has also over the course of two recent years done work to poison and remove a heavy infestation of camphor laurel trees along the creek line and to re-plant areas where camphor laurel trees have been removed. This has involved obtaining machinery and the work of others on the trees. The extent of this work has been disputed by evidence of Gary.

32 Glen says also that as a consequence of the promise that the house on Lot 12 would be his “… I freely and willing assisted both Dad and Mum as well as my other siblings with other work on the family property” (Aff 37) and that except for a year he spent overseas in 1998 he has spent all his free time after work on weekends and during holidays working on Lot 12 or on Lot 2. He gave evidence of a number of instances of work, including things which in his concept were improvements, which he carried out on Lot 2 and the house on Lot 2. His evidence shows (Aff 39) that in about 1999 Glen built what he calls “a small day house” for Lynne, the youngest adult child, near the house on Lot 2 and he says “I paid for the materials with the $9,000 which Lynne had given me for renting my house when I was overseas. I built the dwelling myself over a period of about 4-6 weeks.” He also said that he renovated the main bathroom in the main house on Lot 2, did repairs on the roof including the fascia boards and guttering, pressure hosed the brickwork and driveways at the house, tiled the hallway floors, patched up the walls and painted the whole of the interior of the house, replaced and renewed door-locks, handles and hinges and carried out improvements to the kitchen. Glen says that he and Ben McClymont painted the interior. There are a number of conflicts in evidence about claims by Glen to have done work or otherwise provided benefits, which I regard as of marginal importance and do not examine closely.

33 Glen also, about 1994 during Geoffrey’s lifetime, helped demolish his old packing-shed and built a new hardwood and colour-bond shed which was almost three times the size of the old packing-shed; Glen says he paid the costs of this up to and including completion of the slab while Gary paid for the materials and Glen built the shed. Although he did not know at the time he later found that the new shed was built on land owned by Gary. His evidence (Aff 44) is:

Dad was very happy with the new shed. Not long after I had finished it I remember being in his lounge room with Mum when he said to Mum ‘You make sure that when I go Glen gets his place over there’.

34 In my opinion full acceptation of Glen’s evidence about what Geoffrey said to him at its most favourable passages would have given Glen an arguable case, not a clear case, against the estate of Geoffrey on the ground usually referred to as proprietary estoppel. The words attributed to Geoffrey are not with entire clarity a promise to transfer title to Lot 12 to Glen, either in Geoffrey’s lifetime, at his death or at the death of the testatrix, but there was an arguable case against Geoffrey of encouragement of Glen to treat Lot 12 and the house on it as his own for an indefinite period or perhaps for ever, and acquiescence in conduct of Glen consistent with his having ownership rights or a long term or permanent expectation of being treated in the position of an owner.

35 However there is no corresponding case against the testatrix and her estate. There is no claim that she ever gave Glen any promise or assurance that he would be treated as or would become the owner of Lot 12, the only relevant things that she ever did were to transmit title to her own name, make a will which did not give Glen Lot 12, and let him stay on Lot 12 and do what he liked without intervention by her, while she paid the rates and did not ask for rent or any other contribution from him. This is an unremarkable indulgence by an elderly mother towards her youngest son who was not doing much to make his way in the world, had no trade, had no significant property and liked to occupy himself, over many years, with work on the cottage on Lot 12 which never seemed to come to an end. Gary and Ian say in evidence to the effect that the testatrix said that she did not want Glen to own any part of the farm because he would only lose it. I do not have confidence in what they say about this, as it may reflect the combative nature of the litigation rather than actual recollection.

36 I do not have enough confidence in Glen and his evidence to make a finding, on the balance of probabilities, that Geoffrey ever indicated or promised to him, or made him understand in any other way, that Glen was allowed to occupy Lot 12 on the basis that in some way and at some future time he would become the owner of it. There are a number of circumstances adverse to finding the facts that way.

37 There is no corroborating evidence in support of Glen’s claim that his father gave him an assurance that Glen would be the owner of Lot 12. There is nothing in writing, and there is no evidence of any other person to the effect that that person heard Geoffrey give any such promise or assurance. Nor of course is there any such evidence about the testatrix. The wisdom of making a written record of any permanent arrangement about land ownership should be obvious to everyone, although experience shows that such arrangements are sometimes made orally and acted on in quite serious ways, and I do not assume that everyone in the community knows that there are legal requirements for writing. I regard it as striking that there is no corroboration or confirmation from any source at all of what Glen says about the existence of such a promise or arrangement. Geoffrey well knew what it was necessary to do to transfer land to another person as he had already transferred a parcel of land which, in the context of this family’s affairs was a significant holding, to Gary, and a small parcel sufficient for a family house to Donald. There were no circumstances which impeded his transferring Lot 12 to Glen when and if he wished to do so. In Glen’s account of events Geoffrey’s attitude changed and he told Glen that the land would not pass to Glen until after the testatrix died when and because Donald lost his land to his wife in a property settlement. I find it incongruous that this event with Donald would have operated in Geoffrey’s mind to postpone a wish to benefit Glen, perhaps for many years. After all, Glen may not have survived the testatrix.

38 Another circumstance which I find adverse to believing Glen’s claim is that a gift, even postponed, to Glen of Lot 12 would be strikingly out of scale with Geoffrey’s treatment of his other adult children. Lot 12 was land with a frontage to an arm of the Brunswick River and ample water, with a cottage which, evidence clearly shows, had been put in habitable order by Mr Cason when he occupied it for some years. It is improbable that Geoffrey stipulated for renovation work or other work to be done on the house by Glen because it had just been worked on and put in habitable order by Mr Cason. Geoffrey had given Lot 11, a significant gift, to Gary his eldest son who carried on the banana plantation on both lots in co-operation with Geoffrey in a partnership; but he left Gary to pay the expenses of subdivision and to build his own house. He gave Donald a much smaller piece of land, big enough for a rural housing lot, but left Donald to build his own house. He did not give any significant land or other benefit to Ian or Robert, or to either of his two daughters, and his Will left all his property to his widow. The alleged benefit for Glen was rather better than the benefit given to Gary and completely disproportionate to any benefit given to anyone else except to Gary, the eldest son who worked with Geoffrey. I find this improbable. There is a suggestion that some benefit had been conferred on Ian in that Geoffrey pointed out to Ian an opportunity for Ian to buy a small parcel of land, which later turned out to his advantage, but if anything this adds to the sense of disproportion.

39 Glen has acted in some ways as if he was the owner of Lot 12. He was absent overseas for a year in 1998, during which Lynne occupied the house on Lot 12, and although he speaks of arrangements with her in terms of rent, it is altogether clear that he did not collect rent from her, that she accumulated money during his absence which he has spoken of as rent, but was used for her benefit, to the extent that building a shed for her to live in on Lot 2 was a benefit; it was not used for Glen’s benefit, except that it enabled Lynne to leave the house on Lot 12. (There are differences in the evidence about how much money Lynne accumulated.) Further and to my mind of high significance, Glen did not act as owner in dealings with the only public authority significantly involved, the Shire Council. He did not comply with a written requirement from the Council for an Engineering Certificate relating to removal of a wall. He did not seek or obtain Council approval for what he puts forward as very extensive renovations to the cottage, involving altering its structure. He did not pay rates on Lot 12, from which fact it should be inferred that he did not notify the Shire Council that he was the owner of Lot 12. He explains this in terms that the Shire rated Lots 2 and 12 under one rating, and that the rates would have been higher if they had been separately rated. This glosses over the circumstance that his father and later his mother paid all the rates on Lot 12 and he did not pay anything for the rates himself. He has not paid rates on Lot 12 since his mother died. If he had arranged for separate rating, it would have been little to do with him, when he paid his own rates on Lot 12, that the total of the rates on the two lots was higher than it might have been if he had not owned Lot 12.

40 A circumstance adverse to finding that the testatrix understood that she was committed to providing Lot 12 to Glen is that she made it possible for him to acquire another house, in Hay; Glen purchased a house in Hay in 2006, and raised $50,000 for the purchase and related purposes, and the testatrix mortgaged Lot 2 and Lot 12 to a bank to secure the bank’s advance to Glen. Very little of that debt has been repaid to the bank, and the executor will be obliged to see that the debt is cleared by making some appropriate adjustment to distribution of benefits to Glen out of the estate. It is improbable that the testatrix would have put property of hers at risk to provide Glen with a second house, if she already had some obligation to give him Lot 2.

41 This is not a case where, on the facts found, either Geoffrey or the testatrix made a promise to Glen that he would have ownership of Lot 12 and thereby induced him to adopt and act on the assumption or expectation that that would happen. It is unremarkable that either parent should have permitted or tolerated Glen to live in a house on the family property which was fit to occupy but no one else was occupying. They could see, if they gave themselves any concern, that he was doing work on it. They did not stop him. This falls well short of playing such a part in the adoption by Glen of the assumption that he would at some time own the land that it would be unfair or unjust to leave the parent free to ignore the assumption. There was no element of encouragement by either parent of a belief that Glen was to be the owner. It was a legend of which he was sole author, and it gained nothing from his repetition. His mother was unlikely to evict him no matter what he had to say and could not stop his mouth. There is no evidence that she ever said anything to confirm or reinforce his idea, and as he said, it never came up.

42 The end of this consideration is that I do not find that there ever were any promise, acquiescence encouragement or other circumstances supporting a promissory estoppel such as Glen’s case relies on. His claim to an entitlement to Lot 12 fails.

43 Glen and also Lynne claim further provision out of the estate for their maintenance and advancement in life under the Family Provision Act 1982. Lynne’s claim was brought out of time. The prescribed period referred to in s 16 expired on 27 October 2008, the day on which Glen issued his Summons, but Lynne’s Summons was issued on 27 February 2009 four months late, and she is in need of an order under s 16(2) allowing a further period. An extension is not opposed and when her application was made Glen’s application and consideration of provision made for all beneficiaries were already under the Court’s consideration. Lynne explained her delay in terms of not having advice until the possibility of her making a claim was pointed to her as a result of attention given to Glen’s claim. No prejudice can have been caused to any beneficiary by the lateness of her application. Lynne is not a sophisticated or businesslike person and in my finding she had shown sufficient cause for not bringing forward her claim until Glen’s claim threatened expectations about what was to be distributed.

44 The tests which claims for provision must pass are stated in s 9(2) and (7) of the Family Provision Act, and matters to be taken into consideration at the second stage are prescribed by s 9(3). The approach to be taken is indicated generally in Singer v Berghouse (1994) 181 CLR 201, although references to moral duty should be understood with observations in Vigolo v Bostin (2005) 221 CLR 191. The circumstances of the Hampson family and of each of the beneficiaries have relevance to both questions to be addressed. I will review their circumstances.

45 The eldest beneficiary is the defendant Gary Geoffrey Hampson, the executor, who was born on 25 September 1955. Gary lived on Lot 12 from 1979 to 1985 when he built his house on Lot 11. He lives in his house on Lot 11, a property of about 4.3 hectares which lies between Lot 2 and Lot 12. He estimates its value at $450,000, which may be a little conservative. There is no mortgage on his property. Lot 11 is very steep. Bananas were grown on part of it at one time. The valuer’s assessment is that Lot 11 has no agricultural viability, is a very steep heavily timbered small rural parcel with attractive views from the home site and its value is as a lifestyle home site only.

46 Gary is married but has lived separately from his wife since 1989. For many years he carried on business as a farmer, growing bananas and grazing cattle, and using Lot 11 and part of Lot 12. He gave up farming in December 2008 because of his health conditions, and his disability pension from Centrelink commenced on 16 March 2009. He suffered injury to his lower back, hip and knees during farming activities and has high blood pressure. His earnings for the financial year to 30 June 2008 were $3,187, and he is now supported by his disability pension. In a list of his assets in his affidavit of 1 March 2009 his farm management account, a bank account with National Australia Bank held $40,000; the earlier taxation advantage as a primary producer had ended. When he ceased carrying on business he paid out a debt to the National Australia Bank which had related to his farming business and was secured by mortgage. He now has about $4,000 in the bank. Glen owes Gary $8,500. Gary also owned several vehicles, a Ford Courier Utility 2006 model, an old Statesman Deville Sedan and Landrover four-wheel drive and a tractor. He attributed values totalling $60,000 to these vehicles and owed $22,000 secured on the Ford, and the net value of vehicles was $38,000. He also owned 1350 IAG shares then valued $5,359.50.

47 Gary carried on farming business in partnership with Geoffrey from 1979 until Geoffrey became ill late in his life, and continued the business thereafter. He had a good relationship with his parents, and in the later years of her life he was in close contact with the testatrix, whose house is 75 metres from his house, visited her often and helped her with household matters such as lawn-mowing and household repairs and maintenance and generally acted as a caretaker for her property. From time to time he took her to doctor’s appointments.

48 Ian Charles Hampson was born on 6 March 1957. He is married and has three children, one of whom now adult still lives at home. He lives in his house in Left Bank Road Mullumbimby and with his wife conducts a fish and chip shop in rented premises in Mullumbimby. He estimates the value of his house at $750,000, subject to a mortgage of $133,198 (as of March 2009). His house is on a small rural holding several kilometres from Mullumbimby, and he has about 30 head of cattle there, the value of which he estimates at $17,600. He estimates the value of the business at $90,000 with a debt liability of $65,000. Other assets are a motor car the value of which he estimated at $15,000, which was exceeded by debt of $16,500 owed on the car, contents of his house $15,000 and cattle $7,600. He owed $12,000 on credit cards and had a debt of $60,000 to his brother Robert Hampson. He and his wife own a half interest in a rural property of about 1,200 acres at Emmaville, and the other half interest is owned by their adult son. He estimated the value of the half interest at $275,500. In his explanation, the Emmaville property was bought after the death of the testatrix, entirely with money raised on mortgage, in the expectation that provision under the Will would reduce the borrowings; but that provision has not yet become available. There are about 20 cattle on the property, worth about $9,000 or $10,000. As things stand Emmaville has proved to be a very poor investment and a net liability. In relation to his affairs and his means of earning income Ian has very significant debts and is in need of the provision made for him under the Will to reduce the debts to more manageable amounts. He has significant assets but his position over all is in no way secure or prosperous. Ian Hampson and his wife and children had a good relationship with the testatrix and visited her usually weekly late in her life, took her for outings and drives and maintained contact with her in pleasant circumstances. At times Ian contributed to expenses for the testatrix’ benefit, on one occasion paying an airfare for her to take a holiday in Western Australia and on other occasions contributing to money for a holiday and living expenses.

49 Donald William Hampson was born on 6 October 1958. He is a bricklayer by occupation and lives in Busselton, Western Australia, where he owns a house the value of which he estimates as $400,000. The house is subject to a mortgage which when he made his affidavit on 9 March 2009 was $37,000. He is a qualified tradesman bricklayer. He owned three vehicles with values which he estimated totalling $11,500 and had about $3,000 in a bank account which was approximately balanced by credit card debt. He had maintenance obligations relating to several children. Two of his sons have now reached 18 years of age left school and are working for him in the building trade for a year before going to university. He has a younger daughter of school age for whom he pays maintenance. He has lived in Busselton since about 1991. He maintained contact and a good relationship with the testatrix, mainly by telephone; she visited him once in Busselton and he visited her in Mullumbimby from time to time, sometimes at intervals of several years.

50 Donald’s circumstances are relatively well settled compared with other family members, but he has dependent children and a mortgage debt and his house is his only significant asset. His only reserve is his ownership of his house and it was appropriate for his mother to make provision for him.

51 Robert Keith Hampson was born on 15 March 1965. He is a qualified tradesman bricklayer. He now lives in the house on Lot 2, which he will purchase from the executor for $650,000. There is an arrangement for him to pay rent of $200 a week to the estate, but he is $11,000 in arrears, which must be adjusted in any distribution. He works as a bricklayer as work is available; however when he made his affidavit on 2 March 2009 this was intermittent. His net earnings in the year to 30 June 2008 were $40,000, including rental income from an investment property at Brunswick Heads, a duplex dwelling which he built in 1991. The annual net income on the property at Brunswick Heads amounted to $23,500, which was part of the earnings referred to. He obtained a bank mortgage to build the duplex and paid out the mortgage in 2006. He estimates the value of that property at $600,000. He owns a 1989 Toyota Camry Wagon the value of which he estimates at $500, had about $11,000 in a bank account and owed about $2,500 on credit cards.

52 When Ian purchased the property at Emmaville Robert borrowed $60,000 from a bank so as to be able to lend that amount to Ian; the amount is still owing by Ian and Robert’s property is still mortgaged to secure the advance.

53 Robert’s evidence showed that he enjoyed a good relationship with his parents and that after his father’s death he kept close contact with the testatrix. Part of this time he lived at Ocean Shores, not far from Mullumbimby; but he also at one period lived in Busselton, Western Australia. He gave evidence that he visited his mother frequently usually weekly, and assisted her in various ways. He lived in Western Australia for about five and half years from about mid-1997; his mother visited Busselton once during this period and he returned to Mullumbimby a few times to visit her. There have been adverse circumstances in his life and he suffered from depression or some such illness and was relatively uncommunicative as a result, but this is no longer the case and has not been his usual position. He says “I got medication and recovered”. There is no reason to think that this is not correct. He gave evidence which I accept of having assisted the testatrix in various ways, buying her furniture, re-carpeting her house, making a payment towards a new kitchen, and other payments towards household items.

54 Glen was born on 15 May 1966, so he is 43 years old. Glen stated his present financial circumstances in an affidavit of 8 March 2010. He now conducts a business in rented premises in Mullumbimby in which he deals in second-hand building materials; typically buying building materials from builders and at demolitions. He values that business at $20,000. He also owns a 1993 Holden Rodeo vehicle, household furniture, and has a small amount of money in a bank. Of course he needs some cash available to run his business. He owns the house at Hay, which he values at $30,000. The house is in need of work for it to be habitable; it has never been rented out or occupied during his ownership. It has proved a poor investment. Glen has significant debts; he owes Gary $8,500, he owes the Commonwealth Bank of Australia approximately $46,000 in respect of the loan connected with the house at Hay, and he has debts to the Australian Taxation Office, credit card, Telstra, neighbours at Hay for fencing and the Office of State Revenue for which he gave estimates totalling $14,200. He said that for the 2009 tax year his gross income from business was approximately $70,000 and the net taxable income before tax was approximately $35,000.

55 Glen left school in 1981 when he was about 15 years of age. He had various employments, fruit-picking and other rural labouring, work in a bakery and after a few years began to work in building trades, although without qualifications, and this included fairly consistent work as a bricklayer and as a carpenter. For about 11 years till 2005 he worked as a carpenter for most of the time for a builder Mr Cameron in Byron Bay. He then spent some months working to assist his Aunt on a property near Hay, and on a house which the Aunt owned in Hay. He then bought a dwelling in Hay, and did some work on that dwelling. While working in Hay he was recuperating from an injury to his shoulder. After about three months work on the farm, at a time when he was working on his own property at Hay and still had some niggling injury, he was more seriously injured when he fell off a fowl shed on his own property and hurt his back and his shoulder. After that he was not able to work for about two years. He then bought the second-hand building material business in Mullumbimby, which he has now operated for over two years. He is not able to go on with the project of working on his Aunt’s house in town. He has never carried out the work which he planned to do on his own house in Hay, it has not been rented and is not habitable.

56 It is correct that Glen has treated the house on Lot 12 as his own in that he has spent about 20 years working on it, without bringing the project to completion. Upon my view of photographs in evidence the results of these many years of work and great effort are not impressive; the house may in some sense have been improved, but it has also suffered from uncompleted tinkering at various parts of it.

57 I do not regard the detailed lists of labour and resources used by Glen in work on the house as reliable. They refer to work over many years and he does not suggest that the list has been compiled from records maintained over many years; he can be in a very poor position to give detail of work done, periods of labour and details of materials used many years ago. Then too he puts forward $100,000 as a general assessment by himself of the value of everything he has expended, without supporting it in detail or showing any valuation expertise. It does not necessarily follow that enhancement of the value of the house corresponds with the resources expended. I accept that over many years he has put in a great deal of labour, both his own and that of others, and materials into the house. Judging by the photographs the end results are not very impressive. The day house or shed on Lot 2 cannot have added value to Lot 2; if anything it may have detracted value.

58 Glen went to Hay in 2006, and stayed there for some months, for the reason given by him that he was to assist his aunt working on her farm until it was sold. There are assertions in the evidence of others that he went to Hay with the encouragement of the testatrix because of his drug usage and in the hope of improving his behaviour. There is no substantial evidence that this is so; but it is significant that very shortly before he went to Hay some marijuana which he was cultivating was found by police, he was prosecuted, and a fine was imposed on him in his absence.

59 Ian gave evidence that Glen showed him marijuana plants which Glen was growing in concealed positions on the Goonengerry property, at some time about the mid-1990s; Glen showed him how the tree coverage would keep the plants from being detected from the air. Glen denied this but I accept Ian’s evidence on this subject. Ian also gave evidence of having on two occasions when visiting Glen at Lot 12 found Glen and others smoking bongs at about 9am; Ian declined offers to join them. Glen denied this but I accept Ian’s evidence. Glen denies that he has ever been dependent on marijuana; however it is clear, from his own evidence, that he has used marijuana from time to time and continues to do so. I am reluctant to make a decision allocating family resources, which are not ample, to a person who uses marijuana, particularly remembering that Glen has a history of having cultivated marijuana.

60 Glen is not a prosperous man. He is a single man and he does not own suitable housing. Glen has no dependants and no continuing significant health problems. He owns a business, which his experience in the building industry has well equipped him to conduct, and his annual income of about $35,000 is, in the family context, relatively high. His only significant investment is the house at Hay, a poor investment which he would be better off without. He has a number of debts, and the provision made for him under the Will would, if he had not incurred large costs in this litigation, have enabled him to become clear of debt and have some reserve which may have assisted him to meet contingencies or perhaps gone some way towards an initial deposit on housing.

61 Glen’s need is that he has arrived at the age of 43, after many years in the workforce, owning a business in rented premises but without any significant asset in the nature of housing; the investment in Hay is small and of no use to him. As he owns the business he is in a position to support himself, quite well in relation to his income in earlier years, and to cope with his debt. In my judgment the testatrix did everything that it was appropriate for her to do by way of provision for Glen. There was no reason why she should have dealt with him more generously than others.

62 It was appropriate for the testatrix to make provision for Glen in her Will, having regard to his circumstances, but the provision when regarded in the context of the family history and resources and of his own history and resources was not inadequate for his proper maintenance and advancement in life. In my finding his case fails at the first of the two stages of consideration indicated in Singer v Berghouse. If the second stage were reached, consideration of the case generally and the matters referred to in s 9(3) would not lead to a decision to order further provision for him. Particularly significant is assessment of his claim in the context of the claims of other family members; there is no good reason why his claim should outweigh any of the others and lead to reduction of their provision. A further consideration is that his history of use and cultivation of marijuana indicate the wisdom of a careful approach to placing family capital in his hands. Glen has the very considerable benefit conferred by his parents of occupation of the house for many years without payment of rent, rates or other outgoings. He has had about twenty years usage of a significant family asset for his long held project or hobby of tinkering with building work without completing anything. It would not be appropriate to order any further provision for him. His claim will be dismissed.

63 Gaye Maree Devoy was born on 26 August 1967 and is the testatrix’ elder daughter. She lives in Toormina near Coffs Harbour, and works part-time as a high school teacher. Her earnings in the year to 30 June 2008 were $46,639. Her husband is a storeman who earned $29,629 in that year. They have a daughter now aged about 13 and a son now aged about 10. They own a house in Toormina the value of which she estimated at $350,000 with a mortgage debt of about $218,000. They have other assets; two vehicles the estimated values of which total $29,000, bank accounts and shares estimated to be worth about $12,000. They have a significant debt to an orthodontist. Mrs Devoy has superannuation with First State Super with an account balance at 31 December 2008 of $76,569.93. She had a good relationship with both her parents and kept in close contact with the testatrix. Until 2001 Mrs Devoy and her husband and family lived in Wee Waa about 650 kilometres from Mullumbimby, about an eight-hour drive, and she visited her mother about twice a year, staying two to four weeks on each visit. The family moved to Toormina in April 2001, about 270 kilometres or a three-hour drive from Mullumbimby; visits became more frequent. She assisted her mother in many ways including cleaning around the house, extensively on each visit, and working on the garden while Mr Devoy did some general maintenance tasks. She took the testatrix to many doctors and specialist appointments and took her on holidays after a serious illness, she was in contact with her mother by telephone several times each week and also spoke to other family members when she needed assistance. She assisted the testatrix in many ways appropriate for a married daughter with family responsibilities of her own.

64 Mrs Devoy may seem fairly well settled in her affairs but her husband does not have high earning capacity and works in a field where employment is not completely secure. In relation to their earnings and the value of their house their mortgage debt is high and Mrs Devoy has a need for the mortgage debt to be significantly reduced. The provision which the testatrix made for Mrs Devoy in her Will was altogether appropriate and a decision to reduce that provision would be difficult.

65 Lynne Michelle Hampson was born on 11 May 1971. She is the second daughter and youngest child of the testatrix. She has never been married. She has three children, a son Zac who was born on 12 June 1990 and recently left her home to live independently, her daughter Kayla who was born on 12 May 1998 and who now attends Mullumbimby High School, and a daughter Jada who was born on 21 November 2006 and is still under school age. For almost all her life Lynne has lived in or near Mullumbimby. She lived in Brunswick Heads for about 12 months in 1992 and in Mullumbimby township for about six months in 1996 to 1997. Mullumbimby is about ten minutes away from Lot 2 by vehicle. Apart from these absences she lived in the family home until she was about 26 years of age.

66 Lynne with her two younger children now lives in a structure, which she speaks of as a cottage but also has been described as a shed, on Lot 2 about 100 metres from the main house. One room serves as lounge room, bedroom and kitchen and there is only one bed. The shed has a kitchen but does not have appropriate bathroom or toilet facilities for occupation as a house; she and her children use facilities at the main house. The structure was built by Glen for her occupation after his return from overseas in 1998; during his absence she occupied the cottage on Lot 12 and earlier she lived in rented premises. Lynne does not explain this transaction in terms of rent. She says (aff 17) “Whilst Mary was overseas, I saved approximately $10,000. I gave this money to Mary upon his return and he built me a one-bedroom cottage on Lot 2.” It is her evidence that she has since expended about $10,000 on the structure, adding a kitchen, connecting electricity and installing a large rainwater tank. The structure is illustrated by photographs and descriptions in evidence; the photographs are clearer than the descriptions. It is obviously an unsuitable structure for family life. It was built without local government approval and would be demolished if any real interest or initiative were taken by the Shire Council and its officers in the structure; they would soon conclude that it should not be a dwelling and should not be there. Glen knew that Council approval was required and had not been obtained for the kind of structure that he actually erected. It is not possible that it adds value to Lot 2. It is a generally disorderly feature.

67 Lynne had a significant adverse mental health condition in the past, but is no longer affected by this. She suffered from a psychotic episode and depression at some time about 1998 and 1999, and the testatrix assisted her to recover. It is her evidence that she always enjoyed a close relationship with both parents, and particularly had a good relationship as a daughter with her mother. She assisted her mother in various appropriate ways for a daughter, for example taking her to doctors’ appointments and on shopping trips and assisting her in shopping and in visits with relatives and friends. There has been evidence offered in contention of this, but in my finding the claim that there was a good relationship is correct overall, although there have been differences such as occur from time to time within families. The two lived quite closely at most times, and did so in the last years of the testatrix’ life, and I accept that there was overall a good relationship with mutual assistance and a real interest by the testatrix in the welfare of her youngest child and of her grandchildren.

68 Lynne attended Mullumbimby High School and completed year 12 in 1988. She then completed a one-year course in advanced secretarial studies at Lismore TAFE. About six months after completing the course her son Zac was born. She stayed at home as a full time mother; then from about 1992 she worked part-time in a Chinese restaurant in Mullumbimby for about three years intermittently, and later had similar employment at Mullumbimby RSL Club. She left that employment before the birth of Kayla in 1998. There was also a period of one or two years when she worked part-time in Ian’s fish and chip shop in Mullumbimby. She has never had any other employment. At present she is committed to home care of her youngest child and of Kayla and cannot address returning to employment. She expressed in evidence a wish to study and gain qualifications, and has considered several fields of study but has never made any concrete plans, or even any realistic enquiries about the availability of courses. In evidence she mentioned considering undertaking a computing course and also gaining qualifications as a nurse. She is however averse to moving to live in Lismore which it would be necessary for her to do if she were to attend any course at Southern Cross University or Lismore TAFE. The journey to Lismore by car takes about 40 minutes.

69 In my finding the prospects of her in fact undertaking any further studies with success or gaining any qualifications are quite small and it is far more likely that when her family responsibilities decrease she will gain employment of the kind she has had in the past; part-time and intermittent employment in a restaurant or Club. Her prospects of gaining sufficient employment to support herself should not be disregarded, but they are not high. She receives sole parent pension and family allowance. These are paid in alternate weeks and currently the family allowance is $447.44 and the sole parent pension $475.80, an average of $461.62 per week. She gave in her affidavit of 5 March 2010 a list of weekly expenses totalling $361 per week which I have no difficulty in accepting. She owns a 1996 Ford Falcon car which is very poor condition and has no real value. She has savings which in April 2009 amounted to about $18,100 but have since diminished. She receives no maintenance from the fathers of either of the children and there do not seem to be any real prospects that she will do so.

70 In her evidence Lynne referred to needs for housing, furniture and white goods, a vehicle and dental work. There is no doubt about her having a real need for housing for herself and her two children. She has no security in her present occupation of the structure on Lot 2, as the structure could be removed at any time by action by the Shire and in any event when this litigation is completed the then owner whether the executor or Robert is unlikely to permit her to remain. She has expressed a wish to purchase a house or townhouse and has put forward general, not specific, references to houses available for purchase in and near Mullumbimby at around $550,000 and Ocean Shores around $400,000 to $450,000. She has expressed a strong wish to remain in the general area in which she now lives, as she has lived there at most times through her life and as she regards her daughter Kayla as well settled in Mullumbimby High School. Lynne has friends in the Mullumbimby area, but has none in Lismore. Evidence surveyed other housing advertised for sale, particularly in and near Lismore and villages nearby, where extremely modest housing, older structures or small townhouses or flats, is available at lower prices; however it is unlikely that acceptable housing is available anywhere for less than a figure in the order of $225,000 to $300,000. Lynne expressed strong views adverse to moving to and living in Lismore; she did not regard Lismore as a safe place for children, there is flooding in many parts of Lismore and her daughter is well settled in Mullumbimby High School. If she purchased a house she would receive the first homeowner’s grant and an exemption from stamp duty, which would moderate the cost. In her evidence renting a property in the area of Mullumbimby and Ocean Shores is not an option as rental properties are scarce and expensive. On the evidence before me this appears to be correct.

71 Lynne has a real need for some furniture and white goods but it would be appropriate for this to be met at a very modest scale. She has a real need for a reliable vehicle which would require expenditure for a second-hand vehicle probably in the order of $10,000 to $20,000. Buying a new vehicle would be an excessive scale of expenditure. She requires dental work for which there is an estimate of $1,500 in evidence. If this were truly pressing she had the opportunity to have it done in or since April 2009 when she had somewhat higher savings than she now has, or to seek to have the dental work as a public patient. However this is a real need.

72 Having regard to the course which Lynne Hampson’s life has taken up to now it is unlikely that she will ever achieve significant earnings or economic independence. There are no aspects of her conduct or character, towards her mother or otherwise, which are significantly adverse to her claim for provision out of her mother’s estate. She falls into a well recognised class of adult sons and daughters, sometimes identified by a harsh sobriquet, who are incapable of economic independence for reasons that are not strikingly unmeritorious and for whom parents should make adequate provision for maintenance and advancement, even though overall the result may seem hard to some degree on other family members who do not have corresponding shortcomings. This class was identified in Re Hatte [1943] St R Qd 1, where Philp J said at 26:

… throughout the argument, Frederick was painted as undeserving, partly because he was inefficient, but I do not think that the Legislature intended that provision under the Act should be given rather to those who are efficient and successful than to those who are not. A just father’s moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving”.

73 It was in all respects appropriate for the testatrix to make the provision which was made in the Will for Lynne, but in my judgment further provision should be made. I have in mind providing Lynne with a fund which will not necessarily enable her to purchase housing, but which will make a significant contribution towards doing so. There are not enough resources to provide her with a fund to meet all her needs or to buy a freehold house clear of debt, which is not the usual situation of members of this family, but she should have enough to make a significant contribution towards housing herself and her two dependent children and also to some degree towards providing her with a useable and safe motor vehicle. The likely future is that she will continue to be dependent on social welfare benefits, at least to a large degree, indefinitely. The choice where Lynne is to live is to be made by her not by the Court. There are not enough resources to give her a free choice when other claims for provision are taken under consideration with hers. The most that the Court can do is order a provision which will greatly assist her, without solving all her needs.

74 This decision involves imposing some degree of burden on other family members which does not represent any demerits on their part. I do not suppose that any family member will find my decision satisfactory: but I have a different object. In my judgment it is appropriate that in lieu of the benefits provided for her under the Will $300,000 should be paid out of the estate assets to Lynne for her maintenance and advancement in life. No-one in the Hampson family is well-off, but some are better off than others. Gary, Donald and Robert are in a better position to bear the burden of extra provision for Lynne than are Ian, Glen or Gaye. I will frame my orders so that out of the one-sixth share which each will have when I set aside the provision for Lynne in the will, Gary, Donald and Robert will each be charged $60,000 to make up the provision for Lynne, and Ian, Gaye and Glen will each be charged $40,000.

75 I am not prepared to make orders which will impose burdens for costs on the estate without understanding a great deal more about the claims for costs which are shown in the affidavit evidence. The amounts referred to appear to me to be out of scale with the work which should have been involved in preparing and presenting the case before me. As other judges in this Division have done from time to time, I have in mind that I may impose caps on the total amounts of costs payable under any orders for costs. Before I make any such orders, any party seeking an order should bring before me, in much more detail than I have seen so far, bills of costs or other explanations of the large amounts referred to in the affidavits. For this reason I have reserved questions of costs relating to payments out of the estate.

76 There are signs that animosities within the family have operated to make litigation more combative than it reasonably should have been. Affidavits by family members were unduly focussed on side issues or frankly irrelevant matter, and were not drafted with the appropriate regard to the law of evidence. The defendant’s affidavit evidence did not deal appropriately with obligations imposed on an executor by the Rules of Court and by the reasonable conduct of this litigation. It should have been obvious, if the beneficiaries made a calm approach with the assistance of realistic legal advice, that there ought to be additional provision for Lynne, although the assessment of its amount was not easy.

77 The defendant’s costs of Gary of Glen’s proceedings can be met by being retained out of moneys otherwise distributable to Glen. Costs payable out of the assets of the estate under my orders will be the costs of Lynne’s proceedings of Lynne and of Gary. However before I make those orders I require to see more detailed bills of costs, in a form suitable for assessment, as I have in mind imposing a cap on the costs recoverable to maintain some appropriate proportionality to the matter in dispute.

78 With my decision the interlocutory injunction and orders of 7 April 2009 will cease to have effect. Glen will no longer be protected in his occupation of Lot 12. In the interests of good order I will fix a time 28 days after giving judgment when Glen is to give up occupation of Lot 12. I will also direct that Lynne is to give up occupation of Lot 2, but not for at least 28 days and not until at least $50,000 has been paid to her on account of her provision under this order. She is to have interest on her provision while it is unpaid, but interest will begin to run when she gives up occupation. She must have some funds in hand when she leaves, to deal with immediate needs.

2009/00287749:

(1) Order that the plaintiff be allowed the period up to and including 27 February 2009 for her application.

(2) Order that by way of provision for the plaintiff Lynne Michelle Hampson and in lieu of the provision made for her under the Will of the testatrix she be paid $300,000 out of the assets of the testatrix, with interest at six per cent per annum calculated from the date on which she vacates Lot 2.

(3) Order that in the calculation of entitlements on distribution the provision of $300,000 be made available by charging $60,000 against the assets otherwise distributable to each of Gary Geoffrey Hampson, Donald William Hampson and Robert Keith Hampson and by charging $40,000 against the assets otherwise distributable to each of Ian Charles Hampson, Gaye Maree Devoy and Glen James Hampson.

(4) Costs reserved.

(5) Order 1 of the orders of 7 April 2009 ceases to have effect.

(6) Direct that the plaintiff Lynne Michelle Hampson give up occupation of Lot 2 when at least $50,000 of the provision hereby ordered shall have been paid to her; but she is not required to give up occupation before 28 days from the date of these orders.

2008/00281293:

(1) Dismiss the proceedings with costs.

(2) Order that the costs payable to the defendant under these orders be retained by him out of assets otherwise distributable to Glen James Hampson.

(3) Direct that Glen James Hampson give up occupation of Lot 12 by or before 28 days from the date of these orders.


**********

01/04/2010 - In the first sentence of par [77], last word, change "Gary" to "Glen". - Paragraph(s) [77]