Hooper v Rowley

[2003] NSWSC 367

CITATION:	Hooper v Rowley [2003] NSWSC 367
HEARING DATE(S):	27, 28 March 2003
JUDGMENT DATE:	2 May 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1) I order that the amended summons be dismissed; (2) I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis; (3) I order that the Defendants be entitled to be paid out of the estate of the late Ethel Elizabeth Museth ("the Deceased") the difference between the costs of the Defendants on the indemnity basis and the amount of the aforesaid costs which they may recover from the Plaintiff; (4) The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Plaintiff must establish areas of need which should be addressed by an order for provision. - Competing claim of beneficiary - Practical consequence of an order for provision in favour of Plaintiff would be to deprive beneficiary of her residence.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Barbara Elizabeth Francis Hooper (Plaintiff) Mavis Rowley (First Defendant) Patricia Ann Elizabeth Museth (Second Defendant)
FILE NUMBER(S):	SC 2643/01
COUNSEL:	J. Armfield (Plaintiff) M. Gorrick (Defendants)
SOLICITORS:	Gulley Helene Scerri, Solicitors (Plaintiff) Malouf Solicitors (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 2 May 2003

2643 of 2001 BARBARA ELIZABETH FRANCIS HOOPER -v- MAVIS ROWLEY and ANOR

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 The proceedings were instituted by summons filed on 15 May 2001 by the Plaintiff, Barbara Elizabeth Francis Hooper. Subsequently on 31 July 2002 there was filed an amended summons. That document was filed pursuant to orders made on 18 July 2002 by Justice Campbell for the joinder of an additional Defendant, Patricia Ann Elizabeth Museth.

3 By each of the summons and the amended summons the Plaintiff claims substantively an order for provision for the maintenance, advancement and education of the Plaintiff out of the estate of her late mother, Ethel Elizabeth Museth (to whom I shall refer as “the Deceased”).

4 The Deceased died on 21 November 2000, aged eighty-nine. She left a will dated 2 October 1984, probate whereof was on 13 February 2001 granted to Mavis Rowley, the executor named in such will (who was the only Defendant to the summons and who is now the First Defendant in the proceedings as they are presently constituted). By her will the Deceased gave the entirety of her estate to her daughter Patricia Ann Elizabeth Museth (who is the Second Defendant to the proceedings as they are presently constituted). The only significant asset in the estate of the Deceased was the house property situate at and known as 25 Fitzwilliam Road, Old Toongabbie, which had been the residence of the Deceased since 1967. The inventory of property ascribes to that residence an estimated value of $240,000. At the outset of the hearing it was noted that the parties were in agreement that (subject to confirmation of its zoning) the present value of the Old Toongabbie residence is $360,000.

5 It is relevant to the calculation of the value of the distributable estate that, in upholding the terms of the will of the Deceased, the Defendants will be entitled to an order that their costs be paid out of the estate. In addition, the Plaintiff, if she be successful in the present proceedings, will also be entitled to an order for her costs to be paid out of the estate.

6 It is estimated that the costs of the Plaintiff will be in the order of about $34,600, whilst those of the Defendants will total about $56,000. Thus if the totality of the costs, in an amount of about $91,000 were to be paid out of the estate, it would be inevitable that the Old Toongabbie property must be sold. If that became necessary, then additional costs in respect to the sale and by way of administration expenses would be incurred by the estate. It was estimated on behalf of the Defendants that those additional costs and expenses would total about $15,000. Thus, in those circumstances the net distributable estate would be in an amount of about $254,000.

7 The Deceased had been married twice. By her first marriage, to George Norman Niass on 4 June 1932, were born six children, of whom the Plaintiff Barbara was the third. The Plaintiff was born on 17 November 1935 and is presently aged sixty-seven. Mr Niass died, as a result of a motor accident, on 6 June 1949.

8 Subsequently, on 24 May 1952, the Plaintiff married Ronald Patrick Museth (who was twenty years her junior). Of that marriage was born one child, Patricia (who is the Second Defendant to the present proceedings). Patricia was born on 23 April 1953 and is now aged fifty.

9 The Deceased was survived by five of the six children of her first marriage and by the one child of her second marriage. The Deceased was also survived by her second husband Ronald Museth. Although they were still married, they had separated in 1967 and had been living apart since that time.

10 The Plaintiff married Stephen Hooper in November 1956. Their daughter Deborah was born on 23 August 1959 and is now aged forty-three.

11 The Plaintiff and her husband separated in March 1995. From April 1998 the Plaintiff has resided in a residential property owned by her daughter Deborah at Wallawa Street, Nelson Bay. That property contains two separate living areas, joined by an internal staircase. Until very recently the Plaintiff lived in the upper part of that residential property, whilst her estranged husband was living, separately and apart, in what has been described as the middle level flat. (According to the Plaintiff’s evidence, the middle level flat is very large, whilst the upper level accommodation is also very commodious.) The Plaintiff’s husband now resides in another residence at Nelson Bay (the legal title to which reposes in Deborah, who holds it on trust for her father). Since the departure of her husband the Plaintiff has occupied the entirety of the residence at Wallawa Street, for which she pays to her daughter rent of $420 a fortnight.

12 The Plaintiff’s only income is the age pension, (which includes a rent allowance), being in an amount of $247.50 a week at the time when the proceedings were instituted. She gave evidence that her expenses consume the entirety of her income, and that she is reliant upon her daughter to help her out financially. The Plaintiff also stated that she required dental work to be carried out, which she could not presently afford.

13 The present assets of the Plaintiff are as follows:

$17,800, representing the balance of a loan which she made to S.J. Hooper Pty Limited and which has now been repaid to her (in consequence of settlement of litigation)


Furniture worth approximately $4,000.

A half interest in a motor vehicle valued at approximately $2,500.

14 The Plaintiff as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. It will be appreciated that the Second Defendant and the other surviving children of the Deceased are also eligible persons in relation to the Deceased. In addition, Ronald Museth, the husband of the Deceased, is also an eligible person, being such within paragraph (a) of that definition.

15 It is appropriate here to record that Ronald Museth (who, like each of the other eligible persons, has been served with a notice of claim pursuant to Part 77, rule 63 of the Supreme Court Rules) has signed an acknowledgment of such service, which contains the following statement,

I do not wish to make a claim against my former wife’s [ sic ] estate.

16 Each of the other children of the Deceased (apart from the Plaintiff and the Second Defendant) has expressed a view (in most instances by affidavit filed on behalf of the estate) that the terms of the will of the Deceased should not be disturbed and that the Second Defendant should retain the Old Toongabbie property, which has been her residence for the totality of her life.

17 A great deal of evidence was presented to the Court concerning the relationship between the Plaintiff and the Deceased, with a view to establishing, on the part of the Plaintiff, that there was a close and affectionate relationship between them and that the Plaintiff kept in regular and frequent contact with her mother, and with a view to establishing, on the part of the Defendants, that the relationship between the Plaintiff and the Deceased was neither close nor affectionate, and that the Plaintiff had little contact with her mother.

18 In this regard it is appropriate to bear in mind the salutory admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124, where His Honour (speaking of the statutory predecessor to the Family Provision Act, being the Testator’s Family Maintenance and Guardianship of Infants Act 1916) said, at 137,

The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

19 Whilst the relationship between the Plaintiff and her mother may be of some relevance to the claim of the Plaintiff in the present proceedings, the nature of the relationship between the Second Defendant and the Deceased (and even less, that between the Second Defendant’s daughter Kylie and the Deceased), concerning which relationships the Plaintiff presented a substantial amount of evidence, can have no bearing whatsoever upon the Plaintiff’s claim.

20 The Plaintiff must establish her own case upon its own merits. She cannot enhance her claim by establishing (if she can) that, if the Second Defendant had been an applicant for an order for provision, the Second Defendant would have been unsuccessful in such a claim. It must be recognised that the Second Defendant was the chosen object of the testamentary beneficence of the Deceased. It is not necessary for the Second Defendant to prove anything.

21 Nevertheless, the financial and material circumstances of the Second Defendant may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established.

22 The Second Defendant is aged fifty. She lived with the Deceased all her life, with the exception of a period of about two and a half years, during which period she resided in close geographical proximity to the Deceased, and kept in close, frequent and regular contact with her mother. It appears that the Second Defendant did not pay any rent or occupation fee whilst she was residing in the Old Toongabbie property, although she did make some contributions towards outgoings. The Second Defendant was the physical carer of the Deceased during her mother’s declining years, after the Deceased became bedridden, having suffered a series of cerebral haemorrhages. The Second Defendant is in receipt of a Newstart allowance. Her daughter Kylie is a business data manager and resides with the Second Defendant.

23 The Second Defendant left school when she was aged fifteen, in 1968. She worked until shortly before the birth of her daughter, Kylie Elizabeth Esther Museth on 11 March 1972. The Deceased assisted the Second Defendant in raising Kylie, and grandmother and granddaughter had a very close and loving relationship.

24 When Kylie commenced school in 1977 the Second Defendant started work on a full-time basis as a school cleaner. She subsequently worked as a canteen supervisor at the Baulkham Hills High School until early 1999.

25 From then until her mother’s death the Second Defendant was not in employment, but was essentially devoting most of her days to caring for the Deceased.

26 From April 1999 until the death of the Deceased the Second Defendant received a carer’s allowance. She then received a Newstart allowance until she obtained casual employment at the Westmead Hospital, earning $20 a fortnight. That employment terminated in early October 2001, when she returned to the Newstart allowance.

27 The Second Defendant has worked part time at the Baulkham Hills High School as a receptionist performing office duties from October 2002 until February 2003, working one day a week and receiving $201 a fortnight. Since February 2003 she has not been able to find employment, and has resumed receiving the Newstart allowance, which is presently in an amount of $328 a fortnight. The Second Defendant has no savings, and her only assets are a motor car, furniture and personal effects.

28 It is quite apparent that the Second Defendant is in extremely modest circumstances. If she were deprived of her residence, it would be almost impossible for her to obtain even rented accommodation. There would certainly be no prospect of her ever purchasing a residence of her own.

29 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

30 I have had the benefit of receiving from Counsel for the respective parties written outlines of submissions and chronologies. Those documents will be retained in the Court file.

31 In carrying out the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 it is necessary for the Court to reach a conclusion as to whether the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life.

32 The present financial and material circumstances of the Plaintiff are modest. Nevertheless, the Court should not disregard the realities of the personal relationship between the Plaintiff and her husband (who has recently resolved a claim against a firm of solicitors for a total amount of $465,000) and also the realities of the personal relationship between the Plaintiff and her daughter Deborah (who provides the Plaintiff with her present accommodation).

33 It is possible that the Plaintiff would be entitled to some share in the moneys which the Plaintiff’s husband has now obtained in respect to the foregoing litigation. I consider it significant in this regard that the Plaintiff has not chosen to approach the Family Court of Australia in order to seek an adjustment of the rights of her husband and herself in respect to those moneys.

34 The domestic circumstances and living arrangements of the Plaintiff and her husband are somewhat unusual. Concerning those circumstances and arrangements each of the Plaintiff, her husband, and their daughter Deborah gave evidence and was cross-examined. It is somewhat difficult to accept the evidence of the Plaintiff’s husband, Stephen James Hooper, that, although he, on account of religious beliefs, refuses to be divorced from his wife (stating that he does not believe in divorce), nevertheless he does not regard himself as having an obligation to care for or to support that wife. Similarly, it is difficult to accept the response given by the Plaintiff’s daughter in cross-examination that she might cease to allow her mother to continue to reside in the Wallawa Street residence (or in some other property owned by Deborah in Nelson Bay; she owns several properties in that locality). I do not accept that the Plaintiff, in the circumstances of this case, is other than secure in her residential accommodation.

35 The evidence given by the Plaintiff and her husband concerning their respective incomes from Centrelink and concerning various inquiries and investigations by Centrelink relating to their living arrangements and concerning inquiries and communications which they have made and conducted with Centrelink strongly suggest to me that one (if not the only) significant reason for the Plaintiff and her husband living separately and apart is to ensure the continuation of their separate pensions from Centrelink.

36 I am not persuaded in the circumstances of this case that the Plaintiff has, in the absence of provision made for her by the will of her mother, been left without adequate provision for her maintenance.

37 The foregoing conclusion is of itself sufficient to dispose of the Plaintiff’s claim. Nevertheless, even if (contrary to my foregoing conclusion) I considered that the Plaintiff had been left without adequate provision for her maintenance, it would then be necessary for me to proceed to the second stage in the two stage process identified by the High Court of Australia in Singer v Berghouse. In exercising the discretion of the Court in performing that second stage, the situation of the Second Defendant becomes of significance. It has already been observed that the Second Defendant is the chosen object of the testamentary beneficence of the Deceased. Further, the Old Toongabbie property, which is the only substantial asset in the estate, has been the residence of the Second Defendant for the entirety of her life (apart from the period of about two and a half years to which I have already referred).

38 It is apparent that, at least in her declining years, the Deceased was not an easy person to live with. She was at that time largely bed-ridden and apparently incontinent. It says a great deal about the affection and devotion of the Second Defendant for her mother and about her physical and emotional fortitude that the Second Defendant chose to care for the Deceased at home, rather than to allow the Deceased to be placed in a nursing home (as was the suggestion of the Plaintiff).

39 It is possible that the mere fact of the institution of the present proceedings will require the Old Toongabbie property to be sold, in order to meet the costs of the Defendants. If so, the Second Defendant will be deprived of her home.

40 If any order for provision is made in favour of the Plaintiff it is inevitable that the property must be sold and that the Second Defendant will lose her home.

41 It is also relevant in this regard that under cross-examination the Plaintiff was asked (over objection) what order she was seeking to obtain in the present proceedings. She responded by saying that she wanted one-sixth of the estate. It was put to her that one-sixth would have a value of at least $50,000 (or possibly $60,000, if the totality of the costs of the present proceedings be disregarded). When asked what she expected to do with that sum if she were to be awarded $50,000 out of the estate, the Plaintiff said that she had not given any thought to it.

42 The Plaintiff was also asked what she expected the Second Defendant would do if deprived of her accommodation in consequence of any order made in favour of the Plaintiff. The Plaintiff said that she had not given any thought to it. The Plaintiff also added, “I’m human, and I hope I am compassionate”. Neither had the Plaintiff given any thought to the fate of the three dogs, the two cats and the cockatoo which had been the constant domestic companions of the Deceased and which since her death had continued to reside at the Old Toongabbie residence, if that property were required to be sold.

43 The foregoing responses by the Plaintiff concerning what she wanted to receive from the estate constitute an admission on the part of the Plaintiff that she is not seeking to obtain an order for provision in her favour in excess of $50,000 (or possibly $60,000, if the totality of the costs of the present proceedings be disregarded). Nevertheless, it was submitted by Counsel for the Plaintiff that an appropriate order for her provision out of the estate would be a legacy in the sum of $80,000.

44 It should be emphasised that it is for an applicant to present to the Court evidence of the areas of need which the applicant seeks should be addressed by the order of the Court which the applicant is seeking. Here there was a total failure on the part of the applicant to present such evidence to the Court.

45 It was agreed by the Plaintiff under cross-examination that her financial situation (she being a pensioner without any significant assets) was such that even if she were to receive $50,000 (or $60,000) she would not thereby be enabled to acquire a residence, since she would not be able to service any loan which she might possibly obtain, in order to cover the difference between the purchase price of any such residence and the aforesaid amount of $50,000 (or $60,000).

46 Such an order for provision being sought by the Plaintiff would not enable the Plaintiff to obtain a residence of her own. As I have already observed, however, I am satisfied that the Plaintiff does in fact have security of residence in either the present property which she occupies or in some other property owned by her daughter. The evidence does not in any way satisfy me that either the Plaintiff’s husband or the Plaintiff’s daughter would allow her to be deprived of somewhere to live. I do not accept the grossly hypocritical attitude manifested by the Plaintiff’s husband that, although his religious beliefs prevent him from being divorced from the Plaintiff, he does not regard himself as having an obligation to care for her or support her. The evidence strongly suggests that the living arrangements of the Plaintiff and her husband are motivated more by a desire to receive from the public purse separate incomes, rather than by any inability for them to live under the same roof.

47 In any event, I am satisfied that the competing claim of the Second Defendant, the chosen object of the testamentary beneficence of the Deceased, a devoted and loving daughter to her mother, whose principal carer she was during the declining years of the Deceased, are such that the Second Defendant should not be deprived of her home.

48 It follows, therefore, that the competing claim of the Second Defendant is such as would, in any event, extinguish any order for provision an entitlement to which the Plaintiff might otherwise have established.

49 Accordingly, I propose to dismiss the claim of the Plaintiff.

50 I make the following orders:

(1). I order that the amended summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendants be entitled to be paid out of the estate of the late Ethel Elizabeth Museth (“the Deceased”) the difference between the costs of the Defendants on the indemnity basis and the amount of the aforesaid costs which they may recover from the Plaintiff.

(4). The exhibits may be returned.

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Last Modified: 07/10/2003