Hulbert v Hulbert

[2004] NSWSC 130

CITATION:	Hulbert v Hulbert [2004] NSWSC 130
HEARING DATE(S):	3 and 4 March 2003
JUDGMENT DATE:	5 March 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 67
CATCHWORDS:	Family Provision Act - claim by adult son of deceased - legacy provided for the plaintiff inadequate - debt due to the deceased by the plaintiff forgiven - further provision made for the plaintiff. - Wills - construction of will.
PARTIES :	Russell James Hulbert v Eva Veronica Hulbert
FILE NUMBER(S):	SC 2425/02
COUNSEL:	Mr J Wilson SC for plaintiff and 1st cross defendant Mr C Harris for defendant Mr L Ellison for 2nd cross defendant
SOLICITORS:	Conroy & Stewart Tonkin Drysdale Partners L Rundle & Co for 2nd cross defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 5 March 2004

2425/02 Russell James Hulbert v Eva Veronica Hulbert

JUDGMENT

1 Master: This is the hearing of an application under the Family Provision Act (1982) NSW (the Act) in respect of the estate of the late Arthur John Hulbert who died on 5 May 2001 aged 83 years. It is also the hearing of a cross-claim brought by the defendant executrix who seeks a determination as to whether upon the true construction of the last will of the deceased, the person referred to as "Jamie Hulbert" in clause 3B of the will is the first cross defendant or the second cross defendant. A judge of the court has referred the hearing of the cross-claim to a Master for hearing.

The family members

2 In order to understand the various relationships involved in the case it is necessary to have some understanding of the family of which the deceased was a part. The deceased married on two occasions and after the separation from his second wife he had a relationship with Daphne Gore.

3 The deceased married his first wife Shirley on 31 July 1948. There were three children from that marriage, his son John who died in 1980, his son Russell James Hulbert (the plaintiff) who was born in 1952 and his daughter Robyn who was born in 1954. The plaintiff had a family of four children including Jamie Russell Hulbert the first cross defendant to the construction summons. The deceased’s daughter Robyn had four children.

4 The deceased and his wife Shirley were divorced in 1970. The deceased married Sylvia Hodge in December 1971. They had no children and they separated in 1983.

5 The deceased’s brother was Edward. He married Yvonne, the executrix under the will of the deceased and defendant in the proceedings. Yvonne had one son by a former marriage known as Leonard who is one of the beneficiaries under the will of the deceased. The latter had three children, a son James Edward Hulbert also known as Jamie, a son Troy Daniel Hulbert and a daughter Melinda Jane Hulbert. The first of these children is the second cross defendant to the cross-claim.

Last will of the deceased

6 The deceased made his last will on 20 November 1998 under which he appointed the defendant Yvonne Hulbert as executrix. His principal place of residence known as 32 Erina Avenue, Woy Woy, was to be held to permit Daphne Gore to reside in the house until her death with provision made in case she should vacate the property. In the events which came to pass after the death of the deceased, Daphne Gore vacated the property and her affairs were placed in the hands of the Protective Commissioner. Accordingly clause 3B of the will applies. That clause is in the following terms:

“Daphne Gore’s death or upon her vacating the property for a period exceeding three (3) months then the property is to be sold and then to be divided equally between Yvonne Hulbert, Russell Hulbert, Len Hulbert, Jamie Hulbert, Troy Hulbert and Melinda Hulbert provided and upon them surviving me and attaining the age of twenty-five (25) years.”

7 In clause 4 there was a bequest of the sum of $5,000.00 to each of the deceased’s children, the plaintiff and Robyn Hulbert. Apparently such legacies have not been paid. The residue, subject to some doubts about the construction of the clause, passes to Daphne Gore. However, in the events which have happened there is no residue in the estate.

The estate of the deceased

8 The principal asset in the estate of the deceased was his home at Woy Woy. That has been sold and the estate comprises an amount of $219,366.00. There is also an amount held in a building society in trust for Robyn in an amount of $5,294.59. Later in this judgment I will refer to a loan due to the deceased by the plaintiff and I find that at the date of death there was an amount of $6,000.00 owed by the plaintiff to the deceased. This is the only other asset apart from some items of personality, which have not concerned the parties to this litigation.

9 There is still some cost to be incurred in the administration of the estate estimated at $550.00. The defendant's costs in respect of these proceedings are estimated at $28,524.00 and those of the plaintiff at $26,000.00. The plaintiff’s solicitors act for the first cross defendant and their costs include such costs. The second cross defendant's costs are estimated at $18,506.00. These costs total $73,030.00.

10 One can see that one is dealing with an estate that will be reduced if orders are made in the plaintiff’s favour. Because of the order of application of the assets, the defendant's costs of these proceedings will be applied to the residue and then to the legacies in favour of the plaintiff and his sister Robyn. In these circumstances, the amount set aside for Robyn will be used for such costs. The amount of the estate less all costs to date referred to above will come to $157,630.00. The plaintiff’s share of this sum is $26,271.00. This is on the basis that he repays the $6,000.00 to the estate.

Family chronology

11 The deceased was born in 1918 and he married wife Shirley on 31 July 1948. Their three children were born between 1950 and 1954. The deceased separated from his wife in 1964 and his wife moved out of the home with the children.

12 The plaintiff left school in 1966 and for a while worked with his mother and her friend. Between 1969 in 1979 the plaintiff and the deceased worked together at the Clyde railway works.

13 As I have mentioned, the deceased divorced in 1970 and married his second wife in 1971. The deceased and his wife moved to Woy Woy where he purchased the property, which is now part of its estate.

14 In 1975 the plaintiff moved to Parkes in connection with his employment with the railway. He married his wife in March 1976 and they then had 4 children. Jamie was born on 31 August 1976. In 1976 the plaintiff and his family moved to Caragabal where they lived in a home that was provided to them rent-free.

15 In 1979 the plaintiff moved to Orange and purchased a house. The purchase price was $25,000.00 and the house was purchased using $3,000.00 given by the deceased. The plaintiff borrowed about $22,000.00 from the bank and contributed a small amount from his savings to the purchase. There is no doubt, given the statutory declaration signed by the deceased, that he intended this amount as a gift.

16 In probably about 1983 the deceased advanced $20,000.00 to the plaintiff, which was used to pay off the mortgage to the bank as that mortgage, attracted a very high rate of interest. I will return to the arrangements for the repayment of this advance, as it is a matter of some controversy in the proceedings. In 1983 the deceased and his wife Sylvia separated.

17 In 1984 the plaintiff and his family moved from Orange to Spring Terrace and then in 1988 moved to Koorawatha. In 1992 the plaintiff was made redundant from his position with the railway department and he received a redundancy payment of somewhere between $70,000.00 and $74,000.00. He applied $45,000 of this to pay off a home loan which he had acquired by that stage on the Koorawatha property and $15,000.00 for the purchase of a car.

18 In 1993 the plaintiff wrote to the deceased sending him a cheque for $1,000.00 in part repayment of the loan and mentioned that he was selling the property. He also mentioned that it was hard to sell and he was out of work. In 1994 a sale of the property was achieved and he and his family moved to Lawrence where they purchased a 300 acre farm. They still reside on that farm.

19 On 16 May 1995 the deceased made a will in which he left his two children a legacy $3000.00 each and otherwise disposed of the residue of his estate. He was critical of the plaintiff and his sister as clause four of this will was in the following terms:

“4 I state that I have made no further provision in my will for my son Russell James Hulbert or for my daughter Robyn Hulbert as they have chosen not to contact me or see to my welfare in my later life. I further state that I have provided for them during my lifetime.”

The proper construction of the deceased will

20 Before proceeding to deal with the application under the Family Provision Act it is necessary to determine who was entitled to the one sixth share of the house which under the will is to pass to "Jamie Hulbert".

21 In submissions the first cross defendant emphasised the usual rule that the court cannot consider extrinsic evidence in order to determine to whom the testator was referring unless there is any ambiguity. Reference was made to National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children (1915) A.C. 207. There it was said inter alia:

“My Lords, I think the true ground upon which to base a decision in this case is that the accurate use of the name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances.”

22 In Perpetual Trustee Co Ltd v Attorney General (NSW) and Public Trustee (estate of late Richard Harris) unreported 2063/86, Bryson J, 27/3/87, said:

‘I was referred to a number of authorities. However, none of them appears to me to decide any matter binding on me and compelling any particular conclusion on the construction of the will before me, and as always it is necessary to remember the need to construe the words of the instrument in question, the meaning of which is incapable of being established by any earlier judicial decision which does not deal specifically with that instrument itself. The meaning of wills are not to be discovered by reference to a body of jurisprudence which has developed around any particular word or phrase and can be taken to establish a legal meaning for it; the cases cited to me almost all precede the decision of the House of Lords in Perrin v organ [1943] AC 399, in which Viscount Simon, LC, at p 406, said the following: ‘My lords, the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course what the testator meant to do when he made the will, but what the written words he uses mean in the particular case – what are the “expressed intentions” of the testator. In the case of an ordinary English word like “money”, which is not always employed in the same sense, I can see no possible justification for fixing on it, as the result of a series of judicial decisions about a series of different wills, a cast-iron meaning which must not be departed from unless special circumstances exist, with the result that this special meaning must be presumed to be the meaning of every testator in every case unless the contrary is shown. I agree, of course that, if a word has only one natural meaning, it is right to attribute that meaning to the word when used in a will unless the context or other circumstances which may be properly considered show that an unusual meaning is intended, but the word “money” has not got one natural or usual meaning. It has several meanings, each of which in appropriate circumstances may be regarded as natural.’ It is, after all testators who are telling the courts what dispositions they wish to make, and the process of construction of wills is not a process of legal education administered by court to testators.”

23 His Honour’s reference to the consequences of only one natural meaning is of course apposite to present case as is His Honour’s admonition in the last sentence.

24 In the present case, the first cross defendant who is the son of the plaintiff has his name recorded in his birth certificate as Jamie Russell Hulbert. The second cross defendant who is the son of Leonard has his name recorded in his birth certificate as James Edward Hulbert. In these circumstances neither name is precisely the same as that used in the will. It is of course common for people to be known by other names rather than the names with which they are christened. In this respect there is more room for confusion particularly if the person uses a nickname or perhaps is known to a testator by that nickname.

25 In the present case there is adequate evidence to show that during his early school years the second defendant was known as "Jamie". It was only when he moved to senior school that he started to adopt the name James. It is also abundantly clear that his grandfather, the deceased, only knew him as "Jamie”.

26 If one turns to the words in clause 3B of the will, one sees that the testator has referred to persons in descending order of generation. The defendant is the oldest generation, the plaintiff and Leonard are the next-generation and the following three are the third generation. It has to be borne in mind that each of the cross defendants is one of a number of children in their generation. There are only three children of Leonard and thus it is likely that the deceased might have been referring to these three children as their names follow the name of Leonard. If that is the case it is notable that the three children are named in order of seniority.

27 There are in evidence greeting cards sent by the deceased to Jamie Russell Hulbert, the son of the plaintiff. They are however all from early years in the late 1970s or early 1980s. The evidence also discloses that Jamie Russell Hulbert did not have contact with the deceased in the later years of his life no doubt because of the distance which separated his family from the deceased and the reasons to which I will refer later in this judgment. This factor is important because the question of identification has to be considered as at the time of execution of the will, which was in 1998. At that stage the deceased had not seen Jamie Russell Hulbert since 1992 when Jamie was 16 years of age. In contrast he had seen James Edward Hulbert on many occasions about and prior to the making of the will. This included taking part in his 80th birthday celebration, and indeed helping organising it during 1998.

28 In the circumstances I am satisfied that the correct construction of the reference in clause 3B of the will to "Jamie Hulbert” is to the second defendant James Edward Hulbert.

The plaintiff's eligibility

29 The plaintiff being a son of the deceased is clearly an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 has set out the two stage approach that a Court must consider. At 209 the following was said:-

"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 interrelationship which exists between 'adequate provision' and 'proper maintenance' etc 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 etc 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 deceased's arrangements to pay creditors."

The plaintiff's situation in life

30 The plaintiff is fifty two years of age and married. He has four children of which one is dependent upon him. He owns his property at Lawrence worth $300,000.00 which is unencumbered. He has a Jeep Cherokee worth $10,000.00, some cattle and calves which are valued at $5,400.00, some household furniture and a Westpac bank account in which there is $450.00 He has a 1984 model tractor estimated at $1,500.00. He has liabilities of $5,000.00 and liabilities in respect of the cost of these proceedings.

31 The plaintiff and his wife are both unemployed and the plaintiff receives a fortnightly pension payment of $342.80. They receive board from two of their children who are living at home. The plaintiff has been unemployed since February 2003. His last job was a casual job at Bunnings Hardware store. Apparently the store closed and he lost his job. When one considers the plaintiff's opportunity to obtain further work, it is important to realise that he left school when he was aged 14. Eventually he settled down to work for the railway and the indications are that in his early days he was a fettler. He has no qualifications and his range of employment opportunities at his age in life must be extremely limited.

32 The plaintiff has not contributed to the estate of the deceased and he has benefited from provision made during the lifetime of the deceased. Effectively the deceased provided the whole of the cost of his first home and as I have earlier mentioned there is debate as to how much of this sum has been repaid.

33 As I have said it is clear that the $3000.00 was a gift made no doubt to satisfy the bank. The evidence of the plaintiff and his wife was that the $20,000.00 was only to be repaid if and when called for by the deceased. Notwithstanding the nature of the loan, the plaintiff and his wife had a plan to repay the loan and said that they had repaid a total amount estimated at $14,000.00. Apparently they had a deposit book which was used for this purpose but that has been lost. Having regard to the fact that the letter of 18 June 1993 refers to the fact that the plaintiff had deposited $1000.00 into the deceased's account it is highly likely that the deposit book did exist. The plaintiff’s wife seems to have a clear recollection of this and having added it up at one stage to come to a figure of some $9,900.00 as the amount that had been repaid.

34 There are statements by the deceased in the early 1990s in which he complained about the plaintiff not having repaid the amount in question. For instance in paragraph 27 of her 18 June 2002 affidavit the defendant reports a conversation that she had with the deceased in which he is reported to have said “the mongrel has not paid back any of the loan". Clearly this was not correct given the letter that is in evidence. This latter statement is also inconsistent with the statement made in 1989 recorded in paragraph 8 in which the deceased acknowledged, according to the defendant, that $2,000.00 had been repaid.

35 It is to be noted that the will made in 1995 expressed displeasure in respect of the plaintiff. That was at a time when there was not a lot of contact between the plaintiff and the deceased and indeed the plaintiff admitted that he had not told the deceased about his move to Lawrence. The plaintiff denied that they had not told the deceased of this move because he would then obviously be expected to have repaid any outstanding amount of the loan.

36 Having regard to the overall evidence, I accept that the plaintiff repaid about $14,000.00 from the funds provided to him by the deceased. In my view this amount was a loan as the letter conceded an obligation to repay. Notwithstanding this repayment, the balance provided by the deceased was certainly a substantial help to the plaintiff and in effect helped set him up in life and enabled him to own a property.

37 It is also necessary to look at the relationship between the plaintiff and deceased. The defendant submitted that the relationship between the plaintiff and the deceased from 1988 onwards was a distant relationship and that this occurred when he moved to Koorawatha near Cowra.

38 Cross-examination of the plaintiff indicated that he is not particularly familiar with the movements of his father in the late 1980s and early 1990s. There is evidence from the defendant that in this period and indeed for the rest of the time up until the deceased’s death, she received calls from both the plaintiff and the deceased in which one of them tried to find out the whereabouts of the other. Apart from indicating the more central role of the defendant played in the deceased life in the 1990s it also indicates that both had difficulty communicating with each other.

39 The statements in the 1995 will make it perfectly plain that the deceased felt that he was not having appropriate contact with his son. This coincides with the time when the plaintiff moved to Lawrence. The plaintiff himself conceded that he did not tell his father that he was moving, although, as is plain from the letter of 18 June 1993 he had told his father that his property was on the market. The plaintiff could give no explanation as to why he did not tell his father and it seems to me that I should conclude that at this time the relationship between them was somewhat distant.

40 There seems to have been a change sometime later because there is evidence from the plaintiff that he spoke to his father on Father's Day on 5 September 1999 and that he rang again a month later when he arranged to come down and visit the deceased. According to the plaintiff he rang the deceased on Christmas Day 1999 and on his birthday in February 2000.

41 The fact that there is more communication in the late 1990s is also indicated by the fact that in the will made in 1998 the complaints about the plaintiff are omitted and he receives not only a small legacy of $5,000.00 but a 1/6th share in the residue of the estate.

42 It is clear that contact between the plaintiff and the deceased did deteriorate after 1988 and was a cause of concern to the deceased. There seems to have been some rapprochement after the middle of the 1990s. Although the plaintiff only then visited the deceased once I would not be critical of the plaintiff for not having seen him more often. He lived a long way away from the deceased, had a difficult and demanding job at times and was not in a good financial situation.

43 I certainly do not think that the plaintiff’s conduct is disentitling and I would only regard it as having a minor significance in the overall considerations of the duty owed by the deceased to his son.

44 It is necessary also to consider the situation of others having a claim on the bounty of the deceased.

The situation in life of the defendant Yvonne Hulbert

45 The defendant is aged 66, is single and has no dependants. She owns her home at 22/80 Monte Place, North Richmond which has a value of between $390,000.00 and $420,000.00. It is unencumbered. She has a car estimated at $19,000.00 a bank account containing $3,975.00 and a short term deposit amounting to $35,541.00. She has her furniture and her son owes her $2,500.00. She owes bankcard $1,100.00. Her income consists of a pension of $450.00 per fortnight.

46 The defendant is a sister-in-law of the deceased and it seems fairly plain that she had a good relationship with the deceased from the time when she first met him in 1965 when she married the deceased’s brother. It also seems apparent that she fulfilled a role of a friend to the deceased after 1994 when her husband died. In some senses she and her grandchildren and perhaps her son had more contact with the deceased than did the plaintiff and his family in the last 10 years of the deceased’s life.

The situation in life of Leonard Hulbert

47 Leonard is employed as a bus driver and earns approximately $50,000.00 per annum. He lives in rented accommodation for which he pays $200.00 a week. Some of his children live with him and pay him board totalling $100.00 per week.

48 The total value of his assets which consist of personal clothing, two motor vehicles, a racing car and other items, amount to $50,000.00. He has a bank account of $4,000.00. He has superannuation worth $20,000.00

49 He appears to have had contact with the deceased through the defendant.

The situation in life of James Edward Hulbert

50 Jamie is a young adult, single and has no dependants. Over recent years he has worked as a car salesman and a truck salesman. Due to a downturn in the industry he has recently been retrenched but is confident that he will be able to obtain further employment. He has not yet applied for a New Start allowance. For the year ended June 2002 his salary was $54,500.00 and the year ended 2003 $33,700.00. Apart from working he also plans to do a TAFE course part-time to become qualified as a personal trainer.

51 It is plain from the evidence that Jamie as with his brothers and sisters had contact with the deceased particularly in the last years of the deceased’s life. He attended the deceased’s 70th birthday party and helped organise the deceased's 80th birthday party.

52 Jamie, like his siblings has not contributed to the deceased’s estate nor has he received any provision from the deceased during his lifetime apart from various golf balls.

The situation in life of Troy Hulbert

53 Troy is also a young adult, single and lives with his father Leonard. He has earnings $836.00 per week gross working as a shop assistant. He has assets of $14,000.00 being personal equipment and has liabilities of about $20,000.00.

54 He had contact with the deceased in the later part of his life from time to time.

The situation in life of Melinda Hulbert

55 Melinda is a young adult, single and also lives with her father Leonard. She is employed as a receptionist at a real estate office and earns $315.00 gross per week. Her assets consist of car having a value of $2,500.00 and a bank account of $365.00. She has a liability of $600.00.

56 Like her siblings she also had contact with the deceased in the latter part of his life.

57 It is necessary to consider the way in which the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. The plaintiff advances a number of requirements required to improve his property and to allow it to be properly farmed and thus provide more income. These include:

1. The cost of fencing part of property being the common boundary fence so that one-third of the property can be used. The fence is said to cost $12,000.00.
2. The cost of yards and a cattle crush estimated at $10,000.00
3. The cost of a shed estimated at $17,949.00.
4. The cost of a farm vehicle to take cattle to market estimated at $36,710.00.
5. Cost of purchasing additional stock in the sum of $10,000.00.
6. A new tyre for the tractor for $440.00.

The total of these amounts years $87,099.00.

58 There was criticism of the quotation given for the boundary fencing as it was said to be subject to an inspection. No doubt the person giving the quotation made that reservation because the area was under water at the time he inspected. I should proceed on the basis that the quotation might be slightly high in order to protect the person giving the quotation. The need however for such a boundary fence is obvious because without it about one-third of the property cannot be used for grazing due to the absence of the boundary fence.

59 The cost of a farm vehicle was the subject of some debate as it was suggested that the price was for a new vehicle rather than a second-hand one. Whatever the result of that debate, if the plaintiff is merely going to raise cattle, his operation will be quite modest and that need could be accommodated by some second-hand vehicle or the use of an occasional hire vehicle to take stock to market.

60 Bearing in mind that the plaintiff has few skills, he was made redundant at age 40 and has struggled since then, it is not unnatural that he is concentrating his efforts on trying to make a success of his small farm. In this respect I am satisfied that what he is planning to do is appropriate in his circumstances and an effort to try improve his position and provide for his wife and one child who has not yet obtained a job.

Conclusion

61 The defendant submitted that the plaintiff had not established an entitlement to an order bearing in mind the provision made for him during his lifetime, the provision made in the will and the distance of the relationship between the plaintiff and the deceased in the latter years of the deceased life.

62 It was emphasised in submissions on behalf of the plaintiff that the plaintiff is the only eligible person making a claim. The only other eligible persons are his sister and the deceased’s second wife who have been given appropriate notice and make no claim. It was also pointed out that although the evidence indicates that the defendant, her child and grandchildren were probably more in touch with the deceased in the last ten years of his life than the plaintiff, they did not at any stage reside with the deceased and were strangers in blood.

63 The plaintiff referred to the following comments of His Honour Mr Justice Holland in Kleinig v Neal (No2) (1981) 2 NSWLR 532 AT 540 as being apposite:-

"If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim."

64 Although the deceased was good to his son and provided him with a very helpful start part way through his life, the present situation of the plaintiff is an important consideration. Naturally the deceased did not know the full situation of the plaintiff when he made his will and in any event this court has to consider the matter at the time of hearing of the plaintiff's claim. Naturally things can change from the position as last known to the deceased.

65 It is of course necessary to have regard to the situation of the other residuary beneficiaries and I have set this out above. The evidence indicates a close association between the defendant and the deceased and the assistance given by the defendant. There is some evidence of somewhat smaller assistance being given by the defendant’s son Leonard. Leonard's children are just starting to make their way in life and given their distance from the deceased their claims cannot rank above that of the plaintiff who was after all the son of the deceased. As was said in Kleinig v Neal once having brought a child into the world there is an obligation to provide for the child unless the obligation is abrogated.

66 In these circumstances I am satisfied that the plaintiff has been left without adequate and proper provision for his advancement in life and that some further provision should be made. I am reluctant to intrude on the provision made for the defendant. Accordingly I think that the burden of the extra provisions should be borne by Leonard and his children.

Orders.

67 The orders I make are as follows:

1. That in lieu of the provision of a legacy of $5000.00 in favour of the plaintiff that the debt of $6,000.00 due by the plaintiff to the deceased is forgiven.

2. That in lieu of the provisions of clause 3B of the will of the deceased, the proceeds of sale of the residence known as 32 Erina Ave Woy Woy shall be held to be divided as follows:

(a) as to one sixth thereof for Eva Veronica Hulbert also called Yvonne Hulbert
(b) as to five one twelfths thereof for the plaintiff
(c) as to five one twelfths thereof to be divided equally between Leonard Hulbert, James Edward Hulbert, Troy Daniel Hulbert and Melinda Jane Hulbert.


3. The plaintiff’s costs on a party and party basis and the defendant's costs on an indemnity basis are to be paid or retained out of the estate of the deceased.

4. The costs of the second cross defendant are to be paid out of the estate of the deceased on a party and party basis.

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Last Modified: 03/08/2004