In the Matter of the Testator's Family Maintenance Act 1912 and in the Matter of the Estate of Daphne Olive Bonnitcha; Hoggett v the Perpetual Trustees and National Executors of Tasmania Ltd

[1989] TASSC 21

Serial No 14/1989
List “A”

CITATION:In the Matter of the Testator's Family Maintenance Act 1912 and in the Matter of the Estate of Daphne Olive Bonnitcha; Hoggett v The Perpetual Trustees and National Executors of Tasmania Ltd [1989] TASSC 21; A14/1989

PARTIES:   HOGGETT, Barbara Anne

V         
  PERPETUAL TRUSTEES
  NATIONAL EXECUTORS OF TASMANIA LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M335/1987
DELIVERED ON:  14 March 1989
JUDGMENT OF:  Wright J

Judgment Number:  A14/1989
Number of paragraphs:  33

Serial No 14/1989
List "A"
File No M335/1987

IN THE MATTER OF THE TESTATOR'S FAMILY MAINTENANCE ACT 1912 AND IN THE MATTER OF THE ESTATE OF DAPHNE OLIVE BONNITCHA HOGGETT v THE PERPETUAL TRUSTEES
AND NATIONAL EXECUTORS OF TASMANIA LTD & ANOR

REASONS FOR JUDGMENT  WRIGHT J

14 March 1989

1. Barbara Anne Hoggett, the step–daughter of the late Daphne Olive Bonnitcha, applies for provision out of the estate. The applicant's mother, Esther Amelia Bonnitcha, died in 1962 when the applicant was aged 24 and married. At this time the applicant's father, Matthew John Bonnitcha, was conducting a successful bookmaking business and was in a sound financial position. His deceased wife's estate passed to him upon her death. The applicant had grown up in the family home at 3 Cavell Street, West Hobart and this was owned by Mr Bonnitcha in fee simple. The property was unencumbered at the time of his death.

1. In 1964 Mr Bonnitcha remarried. His new wife Daphne Olive Bonnitcha, (hereinafter referred to as "the testatrix") had also been married before and she had a daughter Maxine who was then aged approximately 18 years (the second named respondent). After her marriage the testatrix moved to Cavell Street and sold her previous home at Hill Street, West Hobart. In addition to the family home at Cavell Street, Mr Bonnitcha also owned two cottages at Dodges Ferry. He used to speak of these shacks as belonging to his two daughters by the first marriage, ie the applicant Barbara Hoggett and her sister Margot. Margot is now married herself and has taken no part in these proceedings.

1. At some stage after his marriage to the testatrix, Mr Bonnitcha's business acumen began to fail and he began to lose money. The extent of this loss has not been disclosed. However, to help alleviate her father's position, the applicant purchased one of the Dodges Ferry cottages for the sum of $3,000 in an attempt to maintain his financial liquidity. In addition, the testatrix used money which she had obtained from the sale of the Hill Street property to pay off debts which Mr Bonnitcha had incurred, and in 1970 when Mr Bonnitcha suffered a stroke and was unable to keep working as productively as he had in the past, the testatrix sought and obtained work as a tea lady with the Forestry Commission in order to supplement the family income. She was then aged 57 years. The income that she received from this position was used to help support herself and Mr Bonnitcha although in what proportions they then continued to contribute to the family expenses is unclear. In addition, the testatrix used her income to repay a loan of $4,500 which Mr Bonnitcha had incurred in 1972.

1. In 1973 due to declining health, Mr Bonnitcha had to enter a nursing home and he remained there until he died on 14 January 1982. The testatrix continued to work until she was in her late 60's when she retired and began to draw an old age pension. From the date of Mr Bonnitcha's death until her own death in 1987, the testatrix continued to reside at 3 Cavell Street, West Hobart.

1. By his will dated 16 January 1969, Mr Bonnitcha left his entire estate to the testatrix absolutely. However, the will contained the proviso that if she pre–deceased him or died within 30 days of his death, the estate was to be divided equally between his daughters Margot and Barbara, and his step–daughter Maxine. The only asset of his estate disclosed by the executors in the affidavit of assets and liabilities filed after his death, was the house and land at 3 Cavell Street, West Hobart which then had a value of $34,500. The only debt of the estate at that time was a funeral account for $600. Thus the estate had a net value of $33,900 before payment of administration costs and expenses.

1. The applicant made no claim against her late father's estate following his death because as she said in her affidavit:

"I thought it proper that his estate should go to my step–mother presuming she in turn would share her estate out between myself, my step–sister and my sister".

1. Whether or not the testatrix made a will at or about the same time as Mr Bonnitcha made his has not been disclosed, but on the 28 April 1976 she made what was to be her last will and testament by which she gave her entire estate to her daughter Maxine for her own use and benefit absolutely. No provision was made for either of her two step–daughters. At the time of her death her assets consisted of the house and land at 3 Cavell Street, West Hobart, which then had a current government valuation of $37,000, personal property consisting of furniture, $5,000, and two accounts with the Tasmanian Permanent Building Society of $5,511.62 and $40.36 respectively. The only liability disclosed was a funeral account of $1,348.

1. The Perpetual Trustees and National Executors of Tasmania Ltd, (hereinafter "Perpetual Trustees") is the personal representative of the estate of the testatrix and has been joined as the first named respondent in these proceedings. An affidavit filed by one of Perpetual Trustees' trust officers shows that the Cavell Street property was sold for $70,000 and there is a net credit balance in the estate as at 30 June 1988 amounting to $70,203.02. That sum would no doubt have been increased by the receipt of interest on capital since the 30 June last.

1. The foregoing statement of historical facts is taken either from affidavit material or oral evidence given at the trial. The facts as stated are either accepted as true by all parties or are not seriously in dispute, and therefore represent my findings as do subsequently stated facts, except where I have indicated to the contrary. The applicant says that she and her late step–mother were always on good terms and she was in the habit of visiting her step–mother frequently. Her evidence as to this was somewhat contradictory as she stated in her affidavit that these visits were made "say, once every two months". However, in cross–examination she claimed that the visits were more frequent, being about twice per month. I think that the affidavit version is more probably correct. The applicant also said that she would visit the testatrix on her birthday and give her a present and a card and similarly at Christmas time she would call and they would exchange presents. In addition, she said that she had entertained her step–mother to lunch on a few occasions. The second respondent in her affidavit, suggested that the relationship between the testatrix and the applicant was not as friendly or cordial as the applicant had claimed, although she conceded that they were on "reasonable" terms.

1. It is plain that there is an underlying animosity between the applicant and the second named respondent, but I have no reason to suspect that this antedated the institution of the present proceedings. As the major area of dispute between them relates to events which occurred at 3 Cavell Street after the testatrix's death which is of no particular relevance to these proceedings, I see no useful purpose in making detailed findings as to credit.

1. Looking at the whole of the evidence I have little reason to doubt that the applicant maintained a friendly relationship with the testatrix until her death. I do not think this was the close relationship that one may normally expect between a mother and natural daughter, but that is scarcely surprising when it is remembered that the applicant was 24 years of age and living away from home at the time her father and step–mother married. As counsel for the second named respondent put to me, it was a "good adult relationship" which existed. Both the applicant and the second named respondent suggested that the other was neglectful towards the testatrix but these allegations on each side were vague and without real foundation.

1. On the hearing of an application of this kind, I may have regard to the deceased person's reasons, so far as they are ascertainable for making the dispositions contained in the will, or for not making any provision for any person (see Testator's Family MaintenanceAct 1912 s8A(i)). For this purpose I may accept such evidence of those reasons as I consider sufficient, whether that evidence would otherwise be admissible in law. Plainly enough, this enables hearsay evidence to be admitted and much of what follows has that character.

1. In an affidavit dated 22 February 1989, Mrs Marjorie Gladys Wolfe of 30 Hilton Road, Claremont, a widow aged 64 years, disclosed that she was a close friend of the testatrix until her death and after Mr Bonnitcha's death she saw the testatrix two or three times a week. They also spoke frequently on the telephone. She also stated:

"5Daphne and I spoke often to each other about our families and our daily lives. In the early years after Daphne and Matty were married, she spoke about her step–daughters and their families but not all that often. After a few years of her marriage, she used to talk about financial problems she and Matty were having. I recall in the late 1960's that Matty was ill and Daphne talked about not a lot of money coming in.

6Early in the 1970's Matty went into a nursing home. Shortly after Daphne went back to work as a tea lady at the Forestry Commission and then the Police Department. In the next few years Daphne spoke of Anne and Ivan Hoggett" [the applicant and her husband] "in quite disparaging tones. She often said to me 'they aren't worrying about me' she said she felt that they weren't giving her or Matty any help or support.

7On the other hand both before and after Matty died Daphne said she didn't know what she would have done without Maxine.

8While Matty was in a nursing home, Daphne also took in sewing from St. Helen's Hospital sewing hospital gowns and linen to earn money.

9My own husband died in 1985 we had no children and while my husband was self–employed I worked as secretary to five successive Director–Generals of Education from 1956 retiring in 1983. After my husband died I was in some conflict about what I should do with his estate. I felt I should give some of his estate to his brother. I talked to Daphne about it and she told me what she'd done with her estate. She told me that she'd left it all to Maxine. She said she felt Maxine had earned it. She said she didn't feel guilty at all about leaving Anne and her sister out of the will. She said she'd cancelled her obligations to Matty's first family by helping him get out of debt and by giving him support when he needed it.

She said this many times using phrases like 'they haven't earned it' when she talked about whether she should have left any money to Anne or her sister. She also in similar conversation said 'Maxine has been my support – Maxine and her daughter Sandy' these sort of conversations continued right up to when Daphne went to hospital finally before her death."

1. Mrs Wolfe was cross–examined on this affidavit but nothing material was changed or added by her oral evidence. Her evidence contrasts strongly, however, with that of Lucy Doreen Denehey of 24 Montagu Street, New Town.

1. Mrs Denehey's affidavit discloses that she is the mother–in–law of the applicant and that she had known the testatrix since approximately 1964. She also said:

"3After the death of Mr Bonnitcha I kept in touch with Mrs Bonnitcha. We were good friends. In the last three years of her life, we would talk on the phone say once a fortnight and I would call on her say, once every two months and we would go to the Casino together.

4Mrs Hoggett was very good to her father when he was sick in the nursing home and gave great assistance to Mrs Bonnitcha in help and care for Mr Bonnitcha, taking her to visit him in the home and so forth.

5In the twelve months prior to her death I was aware on the basis of what Mrs Bonnitcha told me, that my son Ivan Hoggett had been doing some painting for her and had mowed her lawns".

[This refers to an occasion when Mr Hoggett performed approximately one week's work for the late Mrs Bonnitcha and received payment of $100 therefor. I accept the applicant's evidence that her husband did not wish to charge Mrs Bonnitcha for this work but accepted payment when Mrs Bonnitcha insisted.]

"6I recall that not too many months before Mrs Bonnitcha died that she and I attended lunch at Mrs Hoggett's home.

7A couple of weeks before Mrs Bonnitcha died Mrs Hoggett and I called in to visit her in hospital.

8I do not recall Mrs Bonnitcha referring to Mrs Hoggett in disparaging tones nor complaining of neglecting her. From my contact with Mrs Bonnitcha and Mrs Hoggett I would say that the two were on good terms."

1. Mrs Denehey was also cross–examined and it is fair to say that she too was unshaken in her evidence. The fact that she is related by marriage to the applicant is not a sufficient foundation in itself for disbelieving or discounting her evidence. On the other hand, the testatrix may well have been more frank and confiding in Mrs Wolfe, who was unrelated to the applicant, than she would have been to Mrs Denehey. On the whole of the evidence however, whilst I am prepared to accept Mrs Wolfe's evidence as to her contact and conversations with the testatrix, I think that evidence really does no more than indicate that the testatrix, with the strong love and affinity for her natural daughter which one would expect, found it difficult to engender the same emotion for a step–daughter who was a married adult when she first met her. It is not surprising that in these circumstances she felt able to justify her decision to exclude her step–daughters from her testamentary bounty when discussing the matter with her old friend Mrs Wolfe. Perhaps the most significant feature to emerge from Mrs Wolfe's evidence is the clear acknowledgement by the testatrix of a prima facie duty to her step–daughters, although of course she believed that circumstances had occurred which displaced her obligation.

1. I am quite satisfied that the applicant was not neglectful of the testatrix within the scope of the relationship that existed and was not guilty of any conduct of a kind which would be such as to disentitle her from participating in the testatrix's estate. At the time of the testatrix's death, it is plain enough that the applicant and her husband were in straitened financial circumstances and I am quite satisfied that the testatrix was aware of those circumstances.

1. At some time prior to 1983, the applicant and her husband were engaged in the management of a number of shops at Claremont Village. However, these businesses were unsuccessful. Mr and Mrs Hoggett fell into debt and to meet their liabilities, it was necessary for them to borrow the sum of $33,500 from their three adult sons. These funds were sufficient to pay outstanding creditors but the money borrowed from the sons has not been repaid and, having regard to the present financial circumstances of the applicant and her husband, it is unlikely that they will be in a position to discharge these debts within the foreseeable future.

1. The applicant has two dependent children aged 14 and 11 respectively. She has no income apart from child endowment and her husband has been unemployed since the failure of the businesses at Claremont Village. He is, and since 1983, has been in receipt of unemployment benefits. For a time he supplemented these benefits by working part time as a process server. In this occupation he received $60 per fortnight. He gave up this work in about June 1988 because he considered that he was running an unacceptable risk of physical violence in such an occupation.

1. The applicant's husband is presently aged 54 years and suffers from high blood pressure. Apart from work as a process server he has not been employed since 1983 and I think it unlikely that he will be employed in the future. He now receives $524 per fortnight unemployment benefit and this is the sole family income. Rent on the family home is $98.60 per fortnight and hire purchase payments in respect of the family motor vehicle amount to $54.50 per fortnight. However, of this amount, one half is paid by the applicant's three adult sons, so the outlay from the family income is $27.25 per fortnight. There is a balance debt of $200 owing to Myer stores. This has been reduced from an original amount of $1,300. I have not been told what periodical payments are being made to reduce this debt.

1. The applicant herself is aged 50 years and is in good health. She has not been engaged in paid employment since leaving school at the age of 15. She was married in 1959. When it was put to her in cross–examination that she should be making efforts to obtain employment herself, her response was that she still had a family to care for and if she engaged in employment she would be neglecting the children. In any event, she said it would scarcely be financially worthwhile for her to undertake part time cleaning or domestic work. Up to a point this seems a reasonable response but I find it difficult to accept that even in the current economic climate in which unemployment is rife, neither the applicant nor her husband, will ever be gainfully employed. However, both now and at the date of the testatrix's death, neither of them were working, and I am satisfied that the testatrix was aware of this situation.

1. The second named respondent is aged 46 years. She is employed as a library officer in Canberra and has no dependent children. Her husband was employed with the Commonwealth Department of Communications but he died suddenly on the 25 June 1987, some five weeks after the testatrix's death. The second named respondent has an adult daughter and son by an earlier marriage. She and her second husband purchased a home in Canberra when they moved there in August 1986. This home is heavily mortgaged and despite the second respondent having acquired her late husband's interest in the home by survivorship, and being entitled to his net estate which is estimated to be approximately $15,000, together with an amount estimated to be approximately $27,000 from his superannuation entitlement, this will not be sufficient for the second named respondent to completely pay out the mortgage. She currently receives a salary of $24,200 gross per annum. This has increased from $20,000 per annum which was her income when she swore her affidavit on 16 October 1987. She herself contributes to a superannuation scheme which would entitle her to an income in the event of her retirement due to ill health except on two specified grounds.

1. It is plain therefore that the second named respondent's financial circumstances have improved somewhat since her mother's death. This improvement has been due to her late husband's sudden death and there is no reason why this tragic event should have been foreseen by the testatrix, either at the time of making her will or at the time of her decease.

1. In evaluating the evidence in the case I have encountered a real difficulty in assessing the extent to which the testatrix's own estate should be regarded as having been derived from that of the late Mr Bonnitcha. The Cavell Street property was more valuable than the testatrix's previous home in Hill Street it is true, but nonetheless she contributed some or all of the proceeds of  the Hill Street property to the discharge of Mr Bonnitcha's liabilities. She also worked in her later years when his declining health prevented him from doing so effectively. There is no detailed evidence upon which one can balance her gains from the estate against her actual or indirect contributions to that estate. It was not disputed that she fulfilled her uxorial obligations in a completely proper and commendable way. The applicant herself conceded that it would have been fruitless for her to claim provision out of her late father's estate at the time of his death because of the needs and entitlement of her step–mother.

1. It is plain from the authorities that the nature and extent of the duty that a testator owes to a child or step–child to make provision out of the estate, may depend (inter alia) upon the length and duration of any existing bond between them and the extent to which such claimant child has provided nuture or support to the testator. Mr Thompson, counsel for the second named respondent submitted that the relationship between the applicant and the testatrix was not such as would support the contention that the testatrix owed a duty to the applicant to make some provision for her out of the estate. In support of this submission he cited Pontifical Society for the Propagation of the Faith v Scales (1961–1962) 107 CLR p9. However, as Dixon CJ said at p20:

"'Duty' no doubt does not afford an exclusive test indeed it is not right to treat it strictly as a test at all it is but an element however important an element that is to be taken into account in weighing all the considerations."

Whereas a widow or an infant child has a prima facie claim to be maintained and supported out of the estate, an adult son or daughter must normally establish some special need for provision. The final question must always be "Was the testator morally free to dispose of his estate without regard to the claims of the disinherited son or daughter?" The court is not entitled to rewrite the will or to substitute its own general concepts of fairness for the testamentary dispositions made by the testator.

1. The Court has no jurisdiction to make an order unless it is satisfied that at the time of the testator's death the applicant was inadequately provided for but once that jurisdictional hurdle is surmounted as I am satisfied it has been in the present case, it must assess proper maintenance and support so far as it can on the basis of the actual circumstances existing when the application is heard. (See Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494).

1. Unlike New Zealand, South Australia, the Australian Capital Territory and the Northern Territory, there is no requirement in the Tasmanian legislation that a step–child must have been entitled to maintenance from the testatrix as at the date of death. The jurisdictional test provided in the Tasmanian Act is simply that the applicant must be shown to be a person, who as a result of the terms of the testatrix's will, is thereafter left without adequate provision for his or her proper maintenance and support. This clearly does not predicate a causal connection between the testamentary disposition and the inadequate circumstances of the applicant. It is directed rather to a simple comparison between the applicant's financial position both before and after the terms of the will take effect.

1. The nature of the relationship between a testator and an applicant will often vary enormously as the decided cases illustrate. The strength and durability of the relationship is often examined and may of itself, lead almost inevitably to a conclusion that a particular testator has failed in his or her moral duty to a particular claimant. This may have particular significance in the case of a step–parent and step–child. As Crisp  J observed in In re Lockwood [1960] Tas SR 46 at p48:

"The step–relationship is obviously a factor which may affect, in degree according to the circumstances, the moral obligation of the testator on which jurisdiction to make an order depends. Hypothetically, it may justify differential provision both by the testator and the Court between classes of children, though of course whether this should be done in any given case will depend on such matters as the respective ages at which the relationship was assumed, the extent of other existing provision for step–children, the actual degree of dependence, the extent to which responsibility for maintenance and advancement has been assumed by a step–parent, and a host of other factors. No principle as to the weight to be assigned to it can be laid down, it is simply a factor to be taken into account and I so regard it."

1. However merely because the development of the relationship of step–mother and step–child occurs late in life and at a time when they will not share a home or pursuits which will cause them to form a close–knit bond, does not seem to me to provide a sound basis for refusing relief in an appropriate case. By its very nature, the step relationship can hardly ever exist from birth and I think that Crisp J's comments immediately preceding the passage quoted above that, "the effect of the amendment" [Act No 52 of 1957 which enlarged the definition of child to include step–child] "is more to remove a disqualification than to lay down a positive principle that a step–child should in all respects be considered as on the same footing as a natural child", should be taken as a recognition that the relationship in each case differs in its nature, rather than as an acceptance that different principles of law apply depending upon whether the child in question is a natural child or a step–child.

1. All things being equal except the actual relationship which exists, I think it would be very difficult to justify a substantially different provision being made in the case of a step–child on the one hand, and a natural child on the other. However in the nature of things such a situation will rarely arise. As Windeyer J observed in Blore v Lang (1960) 104 CLR 124 at p137:

"The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward for past services."

On such an application as the present, the primary basis for the Court's declining to split the estate in a way which may be regarded as simply fair or equitable in the absence of constraint, is the firmly entrenched principle that the testator's testamentary wishes should only be disturbed to the extent necessary to make in the applicant's favour the kind of provision contemplated by the Act, whilst preserving so far as possible the bequests to the named beneficiaries. The wholesale redistribution of the estate is not normally justified. (See Lacey v Hogan 69/1977).

1. Plainly enough the fact that the present applicant failed to make a claim against her late father's estate in no way disentitles her from making a claim against the testatrix's estate in the present proceedings. (Compare In re Trackson [1967] QR 124). There are unfortunately, very few cases in which the special problems associated with a claim like the present have been fully ventilated. However, after careful consideration, I have concluded that the lack of an enduring or affectionate relationship between the step–child and the testatrix is no answer to the applicant's claim. I have also concluded that it is legitimate to take account of the extent to which the testatrix's estate was derived from the estate of the step–child's natural parent who would have been under a substantial moral duty to make provision for that child out of his estate had the remarriage not occurred. Whilst there have been difficulties in making an assessment of this kind in the present circumstances, I think it reasonable to infer, and I do infer, that the testatrix's estate was substantially enhanced by her inheritance from Mr Bonnitcha.

1. In the circumstances that I have described therefore, I have concluded that the applicant was left by the testatrix without adequate provision for her proper maintenance and support. Plainly enough, the testatrix gave this question her anxious consideration prior to her death but I think she reached the wrong conclusion as to where her obligations lay for the reasons that I have already touched upon in discussing Mrs Wolfe's evidence. I think she tended to undervalue the claim of the applicant and allowed her natural affection for her own daughter to figure too prominently in her decision to dispose of her estate as she did. Consciously or unconsciously, she may have also been adversely and therefore unfairly, influenced by the fact that the applicant had converted to Roman Catholicism. Although the testatrix herself had worked in the later years of her life to support herself and her husband, and although there has been something of a social revolution in the past twenty years or so in consequence of which young wives and mothers now seem to be expected to contribute to the family income as well as making a home and raising the children, I do not regard it as fair or reasonable to hold the applicant disentitled to a share in the testatrix's estate because she chooses to fulfil the more traditional role of wife and mother, rather than seeking employment of the limited and menial kind for which she may be fitted by her unqualified and inexperienced status.

1. Because of the size of the estate and the general circumstances of both the applicant and the second respondent, it seems to me that it would be inappropriate to make provision out of the estate other than by payment to the applicant of a lump sum. Bearing in mind the principles I have discussed and the net value of the estate (not forgetting the value of personal property which was not realised by the executors but passed straight to the second applicant) I think the sum of $20,000 is appropriate. I therefore order and direct that the personal representatives pay the applicant the sum of $20,000 out of the estate of the testatrix and that a certified copy of such order be made upon the probate of the will of her estate. The costs of all parties to the application should be taxed as between solicitor and client and paid out of the estate. I certify for counsel.