Haywood v Williams

[2002] NSWSC 593

CITATION:	Haywood v Williams [2002] NSWSC 593
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 5110/2001
HEARING DATE(S):	26/06/02
JUDGMENT DATE:	26 June 2002
PARTIES :	Judith Roslyn Haywood v Dianne Joy Williams (Estate of Gladys Joan English)
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr A.G. Diethelm for plaintiff Mr R.J. Powell for defendant
SOLICITORS:	Galland Elder Lulham for plaintiff Lewis Ackman for defendant
CATCHWORDS:	Family Provision. Claim by a daughter. Inadequate evidence of needs. Small legacy provided. No matter of principle.
DECISION:	Paragraph 22

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 26 JUNE 2002

5110/01 - JUDITH ROSLYN HAYWOOD v DIANNE JOY WILLIAMS - ESTATE OF GLADYS JOAN ENGLISH & ANOR

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Gladys Joan English who died on 23 August 2000 aged seventy-six years. She was survived by her two daughters, one of whom is the plaintiff and the other is one of the defendants. The plaintiff has also been named as a defendant and apparently both were executors and took out probate. The plaintiff should be removed as the defendant and I will do that in due course.

2 The deceased made her last will on 7 September 1984. She left her house to Tracy Joy Montgomery who was the daughter of her daughter. She gave jewellery and other personal items to a number of named persons, including the plaintiff. The residue of her estate she left equally between her two children, Dianne Williams and the plaintiff Judith.

3 The estate consisted of the deceased’s home at 19 Waratah Street, Windang, which is apparently somewhere near Wollongong. There is furniture of $1500 and jewellery which has been distributed. There was cash in the estate of $3992.96 and that has gone to the solicitors to meet the estate expenses no doubt in connection with probate. The house is valued at $235,000 and is, in effect, the only asset in the estate and has to be sold and the following amounts deducted from the proceeds. There will be selling costs in the order of $7600; the plaintiff’s costs, if she is successful, of some $17,400; the defendant’s costs of some $18,000. There is a debt due to Tracy of some $3136 for an amount she has paid in respect of the house and the estate. This leaves a net estate of $188,864. There is only a small estate but fortunately the solicitors have been able to restrain the amount of costs that have been incurred and that is good to see.

4 I will just deal with a brief chronology so far as the parties are concerned. The plaintiff, Judith, was born on 11 April 1941. The defendant, Dianne, was born on 11 May 1945. The plaintiff moved away from home in 1956. Details of Dianne’s earlier life are not in evidence but her daughter, Tracy, was born in 1963. On 3 October 1980 the plaintiff was married. In January 1984 Tracy married Neil Montgomery and their son, Brendan, was born on 31 January 1986.

5 The deceased’s husband died on either 19 August 1984 or 19 September 1984. Having regard to the contents of the deceased’s will, I think it is fairly obvious that he must have died on 19 August 1984. The will was made on 7 September 1984 and contains no provision for the deceased’s husband.

6 In 1986 the plaintiff and her husband sold a road house which they had at Young. They had invested all their savings and apparently the sale was done in a way that the plaintiff ultimately received nothing from it or only a small amount. In 1990 she and her husband leased and operated a farm at Tumut which they continued for some time until 1995 when the plaintiff’s husband died. The plaintiff and her stepson continued to operate the property for some time thereafter.

7 In December 1994 Tracy and Neil Montgomery separated and in February 1995 Tracy and her son started living with the deceased at the home which is still in the estate. In the year 2000 the plaintiff moved to Housing Commission accommodation at Goulburn and then to Koonawarra, a suburb apparently near Wollongong.

8 The deceased died on 23 August 2000 and probate was granted on 30 March 2001. Tracy remarried to Mark Baron on 13 October 2001 and the summons was filed on 19 October 2001 within the time limit within the Act.

9 In applications under the Family Provisions Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take. At p 209 it said the following:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the inter-relationship which exists between ‘adequate provision’ and ‘proper maintenance’ et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

10 As directed by the High Court, I will first consider the situation of the plaintiff. She is sixty-one years of age, single with no dependants. She lives in a Housing Commission flat and after the payment of rent she receives the following amounts: pension of $356.55 per fortnight; TAFE allowance of $124.21 per fortnight; a total of $481.36. In August 2001, when she was receiving a pension of $312 per fortnight, she said that after payment of expenses she had nothing left. There is no current estimate of expenses or what she needs to support herself.

11 She has few assets. There is an old car worth about $500 which will not be re-registered. She has furniture of little value.

12 Her medical situation is that she is now suffering from high blood pressure. She has type 2 diabetes which is not yet insulin dependent. She has problems with her knee. That knee was operated on in 1999 at Wagga Base Hospital, apparently unsuccessfully. It was again operated on in Goulburn in 2000, successfully, apparently, by a specialist this time. The plaintiff has brought a claim in the District Court as a result of what was said to be a negligence of the Wagga Base Hospital in operating on her knee. That claim was for hearing in May this year but was adjourned until later this year. There is in evidence the statement of claim, some medical reports, and a letter from the plaintiff’s solicitors that discloses that the defendant has not responded to an offer of settlement and has vigorously defended the claim. The plaintiff’s solicitors suggest that she might possibly receive something between $10,000 and $50,000 in respect of that matter if it comes to hearing. That compensation, which she will receive, will no doubt deal with the difficulties which she suffers as a result of the badly performed operation effected in the past. The problems with her knee which she now has do not ultimately concern me because she does not put a case that she desires to work. In fact, she does not work as she is on the pension. There is no evidence to suggest that there will be future expenses which she will have in relation to that claim.

13 It is necessary to look at the relationship between the plaintiff and the deceased. There are a number of allegations about the lack of contact with the defendant over the years and there has been in evidence some unfortunate tendency to compare contact that the plaintiff had with contact that perhaps other members of the family had. Although there are some criticisms, it is clear that the plaintiff did keep in contact with the deceased. She said she attended Christmases except the last one because she could not afford to buy presents for her family. She refers to seeing her mother in hospital on a number of occasions when she was ill before she died. At this stage she did speak to her by telephone.

14 Although the deceased may have called her the black sheep of the family, it does seem to me that on the evidence there is no ultimate breach in the relationship between the plaintiff and the deceased and I would not regard any of the matters dealt with as significant as far as her claim is concerned. The important thing to note is that the will of the deceased was made before the plaintiff fell on hard times when the business that she and her husband operated was sold unsuccessfully.

15 It is necessary, of course, to consider others having a claim on the bounty of the deceased. In the absence of any residuary estate, there is only the circumstances of Tracy Baron to consider. She is married, aged thirty-nine. She lives with her husband and his mother in the unit with her husband and his mother own. Apparently her husband, who is an employee and has child support obligations, is also meeting the mortgage on the home he and his mother own. Having regard to those obligations, He has little over at the end of the week. Tracy has savings of some $45,000, a motor vehicle worth $18,000 and debts of $13,500. She occupies a temporary clerical position at $1600 per fortnight.

16 So far as her relationship with the deceased was concerned, there is some dispute in the evidence about that. She lived with her son, along with the deceased, from 1995 to 2000. There were some arguments from time to time between Tracy and the deceased, but that is not unusual and does not seem to be of great moment. It was probably satisfying in some respects for both parties and clearly Tracy had from time to time assisted the deceased.

17 In this case I do not think there is anything in the matters that have been debated which detract from her claim on the deceased’s bounty. There were some promises by the deceased that Tracy would get the house. Apparently the deceased was concerned that Tracy would receive nothing as her mother had remarried and the deceased was worried that nothing would be left to Tracy. In any event, there is no essential contribution to the home which has been made by Tracy.

18 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. It is important for the parties to realise that that is the question the Court has to determine in this matter. The Court is not here to determine what might be described as “a fair will” but merely is able to correct the provisions in a will to provide something for someone who has been left without the appropriate and proper provision for their maintenance, education or advancement in life.

19 In this case there is evidence from the plaintiff that her car is old and needs replacement. That goes without saying and I would think the sum of $15,000 to replace the car is a genuine need on the plaintiff’s part. Apart from this, in respect of how the plaintiff otherwise says, she has been left with inadequate provision, I am reminded what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:

“I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet this claims or need, if they existed. In my opinion, in the circumstances of this case, for the Court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9(2) of the Act , to alter the deceased’s disposition of his property in the absence of proof that he has inadequately provided for the appellant.”

20 It was suggested that the claimant has been left with inadequate provision for her maintenance. The problem with this submission is that there is no estimate as to what are the current expenses or what are said to be her needs which are not met by the income which she has. I have already adverted to the fact that the evidence of expenses is outdated and did not relate to the evidence as to her current income. She has medical problems but nothing has been put in evidence as to the future prognosis in respect of those or future costs which might be incurred.

21 The simple fact of the matter is that she is sixty-one and her health has started to deteriorate and in those circumstances, given her absolute minimum assets, she should have some sum to provide a fund for some contingencies which obviously she will need to draw upon. It is also clear in this case that, given the costs, the house will probably have to be sold. Accordingly, appropriate orders can be made giving relief to the plaintiff.

22 Having regard to all of those factors and what needs have been demonstrated, the orders I make are as follows:

1. I remove Judith Roslyn Haywood as a defendant in the proceedings.
2. Order that the plaintiff receive a legacy out of the estate of the deceased in the sum of $50,000.
3. Order that interest should run on the legacy at the rate provided for under the Wills, Probate and Administrative Act from three months after the date of these orders.
4. The plaintiff’s costs on a party/party basis and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.
5. I order the exhibits be returned.

**********

Last Modified: 08/02/2002