Hastings v Hastings

[2008] NSWSC 1310

CITATION:	Hastings v Hastings [2008] NSWSC 1310
HEARING DATE(S):	04/12/08
JUDGMENT DATE :	9 December 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	1. Order that the summons be dismissed and that paragraph 3 of the cross-summons be dismissed; 2. order that the plaintiff pay the defendant’s costs of the proceedings; 3. exhibits may be returned after 28 days.
CATCHWORDS:	FAMILY PROVISION AND MAINTENANCE – claim by adult son – criminal history – little contact with testatrix – impecuniosity due to forfeiture of assets following criminal conviction – brother’s competing claim – held plaintiff not entitled to order for provision
LEGISLATION CITED:	Family Provision Act 1982 (NSW)
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Re Hatte [1943] SR (Qld) 1 In re The Will of F. B. Gilbert (1946) 46 SR (NSW) 318 Price v Roberts (23 September 1992, Court of Appeal NSW, unreported) Hoadley v Hoadley (17 February 1987, Young J, unreported)
PARTIES:	Phillip Hastings v John Hastings
FILE NUMBER(S):	SC 2991/08
COUNSEL:	Plaintiff: K Morrisey Defendant: L Ellison SC
SOLICITORS:	Plaintiff: Coode & Corry, Solicitors Defendant: Thomas McDarra & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 9 December 2008

2991/08 Phillip Hastings v John Hastings

JUDGMENT

1 HIS HONOUR: The plaintiff is the younger son of Violet Edwina Hastings who died on 29 February 2008. He seeks an order for provision out of her estate pursuant to s 7 of the Family Provision Act 1982 (NSW). Mrs Hastings was survived by two sons: John (the defendant) and Phillip (the plaintiff). Her estate was initially valued for probate purposes at $643,789. The principal asset is a house at 4 Rayner Avenue, Narraweena. Market appraisals of that property range between $610,000 and $760,000. The average is in the order of $685,000.

2 T Counsel for the plaintiff submitted that he should receive an order for provision calculated as follows:

“ i) To pay off his car loan and credit card debts, ~ $35,000
ii) To assist with retraining, and/or to help establish
a small stone importing business, ~ $40,000
iii) To assist with medical treatment (orthopaedic
condition) ~ $20,000
iv) Accommodation ~
v) As a capital fund to meet unexpected contingencies $25,000
Total $140,000 ”

3 The deceased had three sons: the defendant, now aged 61; Robert, who died on 29 July 2004; and the plaintiff, now aged 57. By her last will made on 18 February 2005, she appointed the defendant the executor and gave him all her estate. In earlier wills made on 16 August 1993 and 7 September 1998, she divided her estate (or in the case of the 1993 will her residuary estate) between the defendant and Robert equally. In none of her wills did she provide for the plaintiff.

4 The principal question in this case is whether the plaintiff’s criminal conduct and long absences disentitle him from being considered as a proper object of his mother’s testamentary bounty. That question is to be answered having regard to the circumstances as they exist today.

5 The plaintiff committed serious crimes involving the importing and distribution of marijuana in America. He left Australia in 1969 when he was 18. After travelling extensively he settled in Hawaii in about 1976. He deposed that he moved to California in the mid-1980s and that during his time in the United States he was involved in the drug trade. He further deposed that in the early 1980s he went into a property development business with his brother Robert and provided finance to the company established to operate that business from the proceeds of criminal activity.

6 In 1988 he was arrested when on holiday in Mexico on charges of drug importation. He remained in custody for three and a half years. He says he was tortured whilst in custody and was ultimately acquitted. There is hearsay evidence, not objected to, that the plaintiff’s release in 1991 was procured by bribes provided by his brother Robert.

7 Newspaper articles were published in Australia in 1990 and 1991 in relation to the plaintiff and his alleged ill treatment. The newspaper articles said that he had been arrested on drug-running charges. At the time, the deceased thought that people avoided her or gossipped about the charges.

8 The plaintiff returned to Australia in 1991 and to Hawaii in 1992. He deposed that he started a charter fishing business. At that time, according to the plaintiff, he was receiving income from Robert’s property development company which he had financed through the proceeds of criminal activity. There was a falling out with Robert and payments from that source ceased. The plaintiff deposed that in about 1996 and 1998 he became involved with a number of people selling marijuana in California.

9 A warrant for his arrest was issued on 13 March 1998 in California to answer an indictment of conspiracy to import and distribute marijuana. The indictment alleged that the plaintiff, along with 19 other defendants, conspired to import and distribute 18,000 pounds of Thai marijuana.

10 The plaintiff learnt of the indictment when he was in Australia. He fled Australia to Canada and then to Fiji where he lived under an assumed name. In July 2001 he was arrested in Fiji and imprisoned, awaiting extradition. He deposed that the United States did not have an extradition treaty with Fiji and that whilst in custody he reached a plea agreement with the Californian authorities. He pleaded guilty to a charge of distributing Marijuana, was deported to Canada, and thence to the United States where he served a term of imprisonment. He was released in July 2005.

11 The plaintiff deposed that all of his assets were seized by the drug enforcement authorities and forfeited.

12 Even on the plaintiff’s evidence, he had little contact with his mother after he left Australia in 1969. He said he sent gifts to her on her birthday and at Christmas. The defendant denies this. I am not satisfied that he did so. The plaintiff says that his mother visited him in Hawaii on several occasions in 1977 and 1980. The evidence is not corroborated and I do not accept it. There is no dispute that the deceased visited the plaintiff in 1984.

13 The defendant said that until 1984, the family had no idea where the plaintiff was living and had no way of contacting him. I accept that evidence.

14 The plaintiff said that after he left Australia in 1999 on hearing of the fact that charges had been laid against him in the United States, he deliberately had little contact with his mother so that she would not be put in a difficult position if the police made inquiries as to his whereabouts. The plaintiff said that after his arrest in Fiji he and his mother spoke regularly by telephone and that he was also in communication with her when he was imprisoned in California. In March 2004 she obtained a copy of his birth certificate and sent it to the prison in California so that he could apply for an Australian passport after his release.

15 After the plaintiff’s release, he worked for a company in California which produced surfboard “blanks”. A blank being the core of a surfboard. He and some unidentified partners established a business manufacturing such products and leased a factory in Mexico for their manufacture.

16 In July 2007 the plaintiff was advised by the defendant that their mother had been diagnosed with cancer. The plaintiff left Mexico on or about 28 July 2007 and returned to his mother’s house. A couple of weeks later, he returned briefly to Mexico but was refused entry. He returned to Sydney and then left for 18 days to travel to Thailand to investigate the possibility of being appointed a distributor in Australia of Thai stone. On about 17 September 2007, he returned to the Travelodge at Manly and then to his mother’s house for a couple of weeks before moving to Queensland where he established a residence. He stayed with his mother over Christmas 2007 and then returned to Queensland before returning to stay with his mother in mid to late January. He stayed until his mother’s death on 29 February 2008. He has continued to reside in his mother’s house, without paying rent to the defendant. On 13 November 2008 Windeyer J ordered that he give vacant possession of the property to the plaintiff by 11 December 2008.

17 The plaintiff’s counsel submitted that the plaintiff had left his business in California and Mexico to look after his mother on learning of her terminal illness. While there is a measure of truth in that, nonetheless, in the seven months after he returned to Australia at the end of July 2007 until his mother’s death on 29 February 2008 he spent no more than two and a half months with her.

18 I accept that during the time the plaintiff was with his mother, he provided her with care. Nonetheless, that belated and short contact affords no substantial basis for a claim on her estate.

19 The deceased’s solicitor, Mr McDarra, made a contemporaneous file note of his conference with the deceased on 9 February 2005 when he received instructions for a new will. The deceased told Mr McDarra that she needed to update her will because Robert had died. She said she wanted to leave everything to the defendant and nothing to the plaintiff. Mr McDarra recorded her reasons as follows:

“ She wants to leave everything to John only

- Phillip to get nothing -

Because :- 1. she gets on with John & his two sons – they visit her and call her regularly
2. re: Phillip – she hears from him only every couple of years now
- but he disappeared for about 20 years at least (between 1968-1988)
- he rang her out of the blue about 15/20 years ago
- his lifestyle has been ‘fast’ – ‘rich & then in jail then rich again.” He even dragged his brother Robert into it – all the stress killed Robert (heart attack)
- she believes he sold drugs. He’s been in the paper – charged with drug smuggling – very embarrassing for her – her name was even printed (illegible)
- he has lived in S/Africa, England, USA, Mexico (illegible)
- she knows Phillip will blow his share immediately
- she looked after the house for years and she’s worried he’ll just piss it up against the wall
- she doesn’t know if he’s well off but he manages to get by
- John is more responsible and has earned it.
- he has also helped with the house over the years & added value to it. ”

20 Mr McDarra advised her of the possibility of a claim under the Family Provision Act. His file note reads “Told her about FPA – she wants to take the punt”.

21 Mr McDarra was again consulted on 2 July 2007. At her request, he prepared a power of attorney appointing the defendant as her attorney. When Mr McDarra met the deceased they had a conversation to the following effect:

“ Me: Do you still want to leave your will as it is and leave him out completely?
Deceased: Yes. Leave it as it is.
Me: Do you think your son Phillip will make a claim against your estate?
Deceased: I don’t know. I don’t really know him as a person because I have had so little to do with him for years and years, so I don’t know what he might do. But John can take care of it whatever happens.
Me: There is always the option of leaving something in your will to Phillip, to prevent a claim, but the question is always how much is adequate.
Deceased: No. I don’t want him to get anything. ”

22 There were numerous conflicts between the plaintiff’s and the defendant’s evidence. I prefer the defendant’s evidence. Even where there is no conflict, I do not accept the plaintiff’s evidence unless it is corroborated or is in accordance with the objective facts. My adverse assessment of the plaintiff’s credit is partly due to his criminal record. He was also cross-examined to some effect on a false application he signed in late 2007 to obtain car finance. He signed an application for finance which stated that in the preceding five years he had not been imprisoned for three months or more, nor been convicted of any criminal offence. I was unimpressed by what I consider to be his pretence in the witness box of not being able to find the particular statements in the form on which he was being cross-examined and to which his attention had just been drawn. The purpose of that pretence seemed to be to attempt to convince me that the plaintiff had not known to what statements he had placed his signature.

23 The plaintiff deposed that at about the end of January 2008, his mother said to him “You’re not going to like what is in my will. But now I know you are not the person I thought you were, you can work it out with your brother.”

24 That evidence was not corroborated and I do not accept it. In any event, it does not indicate that the deceased had changed her mind and regretted not leaving any part of her estate to the plaintiff. She was familiar with the steps needed for making or changing a will. Her solicitor had previously visited her on her giving a power of attorney. Had her testamentary wishes changed, she would have asked for Mr McDarra to attend on her to change her will.

25 The plaintiff has considerable financial needs. He currently lives in the deceased’s home but has been ordered out of the property by 11 December 2008. He deposes that he has no assets of any substance except his car. There is no contrary evidence and I assume that that is so. The plaintiff has no current income except social security benefits. He owes a debt of $15,728 in respect of a loan for the car. He owes about US$12,000 on various United States credit cards. No repayments have been made on those cards for many months and it is likely that the debts will be written off. Nonetheless, the plaintiff is liable for those debts. The plaintiff will be unable to return to the United States for five years.

26 The plaintiff has significant health problems, most particularly with his back. These prevent him from taking employment requiring physical labour which places strain on his back.

27 The defendant has powerful claims on his mother’s bounty which she recognised. The defendant lived with his mother for many years after his brothers moved out in the 1960s to the mid-1980s. He is a plumber by trade and did a lot of work around his mother’s house. The deceased told Mr McDarra in 2005 that the defendant had been a good son, had looked after the house and done work on it and that she saw the defendant and his sons regularly and that they talked regularly by telephone.

28 The defendant lives in Jindabyne. He has sold his house there and bought an investment unit in Jindabyne for $475,000. He proposes to live in the house that belonged to his mother. He is substantially better off than the plaintiff, but not wealthy. After settling the purchase of the Jindabyne property, he will have cash funds of about $210,000 as well as the investment unit. He owns three motor vehicles. He is 61 and has no superannuation. He currently works in Jindabyne as a plumber and intends to seek work in Sydney. His current net income before tax is about $600 per week.

29 Sections 7 and 9(2) and (3) of the Family Provision Act provide:

“7 Provision out of estate or notional estate of deceased person

Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.
...

9 Provisions affecting Court’s powers under secs 7 and 8

...
(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:
(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate, ...
...
is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.
(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:
(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
(i) the acquisition, conservation or improvement of property of the deceased person, or
(ii) the welfare of the deceased person, including a contribution as a homemaker,
(b) the character and conduct of the eligible person before and after the death of the deceased person,
(c) circumstances existing before and after the death of the deceased person, and
(d) any other matter which it considers relevant in the circumstances. ”

30 All the circumstances relevant to what would be “proper” maintenance and advancement in life for the plaintiff must be considered at both stages of the two-stage process the Act mandates (Singer v Berghouse (1994) 181 CLR 201 at 209-210).

31 The character and conduct of the plaintiff is not only relevant in determining what provision ought to be made if it is found that the will made inadequate provision for the plaintiff’s proper maintenance and advancement in life. It is also relevant to determining what is “proper” maintenance and advancement in life for which adequate provision should be made.

32 In Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, Gibbs J, with whom Mason and Aiken JJ agreed, said (at 156):

“ 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 provision from the estate of the testatrix. The stronger the applicant’s case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision. ”

33 Gibbs J also cited with approval the statement of Philp J in Re Hatte [1943] SR (Qld) 1 at 26 as follows (at 148):

“ ... a just father’s moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving. ”

34 In In re The Will of Gilbert (1946) 46 SR (NSW) 318, Jordan CJ, speaking of s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), said (at 321):

“ Section 3(2) of the Act provides that the Court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order. I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default .”

(See also per Maxwell J at 326.)

35 The context of this statement was the rejection of a submission that perjury committed by the plaintiff in her application for provision disentitled her from relief.

36 In Price v Roberts (23 September 1992, Court of Appeal, unreported) Clarke JA, with whom Handley JA agreed, said (at 6):

“ It cannot be doubted that the character and conduct spoken of are related to the purposes of the Act but I do not think that there should be an inflexible approach to the application of s 9(3)(b) of the Act nor should the field of inquiry be limited by the terms of the illustrations given by the judges in Gilbert . ...
Because the statutory provision is expressed in such general terms I do not think that there should be any qualification upon the character or conduct taken into account except insofar as it must be borne in mind that it must be relevant to the purposes of the Act. ”

37 In Price v Roberts, the plaintiff was the deceased’s daughter for whom no provision was made by the will and for whom in ordinary circumstances, provision would have been required. But the plaintiff had been convicted of murdering her husband. Clarke JA said (at pp 7-8):

“ The appellant had been convicted of a very serious crime and although the deceased was not, in the strict sense, a victim of that crime the evidence supported two conclusions. First, that the deceased’s attitude to the appellant changed following the conviction and, secondly, that the need which the appellant established was contributed to in a significant way, if not caused by, her own criminal conduct.
In these circumstances I do not think that it can be said that the Master was wrong when he concluded that sensible members of the community would not have felt that in the circumstances the appellant should have been provided for in the will. ”

38 Here also, the plaintiff’s criminal conduct affected the deceased. She felt that she was shunned and was embarrassed by the publicity.

39 Moreover, the plaintiff’s present impecuniosity is the direct result of the confiscation of his property by United States authorities. That confiscation is the direct result of his crimes. That is so even if, as the plaintiff said, the property confiscated was not the proceeds of crime.

40 A criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (17 February 1987, Young J, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote.

41 In this case it was submitted that the plaintiff, having served his sentence, had paid his debt to society for his crimes and should not be further punished by being deprived of any part of the estate to which he otherwise had a proper claim under the Act. It was also submitted that the plaintiff was contrite and acknowledged his wrong-doing. As to the latter, it is true that the plaintiff acknowledged his criminal conduct. He could hardly have done otherwise. I do not regard that as an act of contrition. It is only partly true to say that the plaintiff has paid his debt to society. He admits having engaged in unspecified criminal conduct during the 1980s involving the drug trade for which he has not been tried and convicted. Nonetheless, he is not to be punished for that by now being denied provision.

42 In my view, the plaintiff’s submission mischaracterises the true question. It would not be further punishment for the plaintiff for him not to receive provision from the estate. Rather, that would be a recognition that his conduct, when considered with all other factors, is such that he does not have a legitimate claim on the deceased’s testamentary bounty. Refusing his claim under the Act means that he is not relieved from the financial predicament to which his own crimes have brought him. In that sense, to deny him a claim under the Act means that there is no mitigation of the punishment entailed by the forfeiture of his property. However, punishment, or mitigation of punishment, is not a relevant consideration. Rather the question is whether his character and conduct, when considered with all the other relevant circumstances, is such that, considering matters as they presently stand, no provision need be made for his proper maintenance or advancement in life out of the estate.

43 The deceased was well able to judge the relative desserts of her children. The defendant had substantial claims on her as she recognised. The plaintiff’s character and conduct, the fact that his financial needs are due to his own fault, the shame his conduct brought on the deceased and the family, and the very slight contact he had with his mother during his adult life, indicate that he does not have a legitimate claim on his mother’s property. That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life. I do not think sensible members of the community would feel that in circumstances the plaintiff should have been provided for in the will even had the testatrix known of the plaintiff’s current financial circumstances and his current state of health.

44 The defendant did not press for an order for mesne profits pursuant to the cross-summons. The defendant said that the benefit that the plaintiff has had in being able to live rent-free in the property since his mother’s death was a reason for concluding that he was not entitled to further provision.

45 For these reasons I order that the summons be dismissed and that paragraph 3 of the cross-summons be dismissed. I order that the plaintiff pay the defendant’s costs of the proceedings. Exhibits may be returned after 28 days.

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