JEAPES v Airey as Executor of the Will of Alan Frederick Jensen (Dec)
[2000] WASC 226
•13 SEPTEMBER 2000
JEAPES -v- AIREY as Executor of the Will of ALAN FREDERICK JENSEN (DEC) & ORS [2000] WASC 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 226 | |
| Case No: | CIV:2349/1999 | 29 AUGUST 2000 | |
| Coram: | MASTER SANDERSON | 13/09/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to receive half of residuary estate | ||
| PDF Version |
| Parties: | KATHLEEN MADELEIN JEAPES RAYMOND JOHN AIREY as Executor of the Will of ALAN FREDERICK JENSEN (DEC) RAYMOND JOHN AIREY SUSAN LESLIE WEST SYLVIA MARGARET RYMER JUNE MARIE SHAWCROSS MARIE JOSIE BELL |
Catchwords: | Inheritance Act Application of two stage process Status of moral obligation test Approach to be taken to small estate |
Legislation: | Inheritance (Family and Dependants Provisions) Act 1972, s 6(1), s 7 |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Goodchild v James, unreported; SCt of WA; Library No 940444; 24 August 1994 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978-1979) 134 CLR 143 In Re Allen; Allen v Manchester (1922) 41 NZLR 218 Lacey v Lacey, unreported; SCt of WA; Library No 980359; 25 June 1998 Singer v Berghouse (1994) 181 CLR 201 White v Barron (1980) 144 CLR 431 Wilson v Wilson, unreported; SCt of WA; Library No 930705; 17 December 1993 Atherton v Jacksons Corio Meat Packing Pty Ltd (1967) VR 850 Bosch v Perpetual Trustees Co Ltd [1938] AC 463 Dunning v Public Trustee, unreported; SCt of WA; Library No 960361; 12 July 1996 Goodman v Windeyer (1980) 144 CLR 490 Pontifical Society for the Propogation of the Faith and St Charles Seminary v Scales (1962) 107 CLR 9 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (1984) 1 WLR 271 Triplett v Triplett & Ors, unreported; SCt of WA; Library No 8146; 16 March 1990 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Estate of ALAN FREDERICK JENSEN (DEC)
BETWEEN : KATHLEEN MADELEIN JEAPES
- Plaintiff
AND
RAYMOND JOHN AIREY as Executor of the Will of ALAN FREDERICK JENSEN (DEC)
First Defendant
RAYMOND JOHN AIREY
Second Defendant
SUSAN LESLIE WEST
Third Defendant
SYLVIA MARGARET RYMER
Fourth Defendant
(Page 2)
- JUNE MARIE SHAWCROSS
Fifth Defendant
MARIE JOSIE BELL
Sixth Defendant
Catchwords:
Inheritance Act - Application of two stage process - Status of moral obligation test - Approach to be taken to small estate
Legislation:
Inheritance (Family and Dependants Provisions) Act 1972, s 6(1), s 7
Result:
Plaintiff to receive half of residuary estate
Representation:
Counsel:
Plaintiff : Mr D A Forrester
First Defendant : Mr R J L McCormack
Second Defendant : Mr R J L McCormack
Third Defendant : Mr R J L McCormack
Fourth Defendant : Mr R J L McCormack
Fifth Defendant : Mr R J L McCormack
Sixth Defendant : Mr R J L McCormack
Solicitors:
Plaintiff : Robertson Hayles
First Defendant : Peter J Whyte
Second Defendant : Peter J Whyte
Third Defendant : Peter J Whyte
Fourth Defendant : Peter J Whyte
Fifth Defendant : Peter J Whyte
Sixth Defendant : Peter J Whyte
(Page 3)
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Goodchild v James, unreported; SCt of WA; Library No 940444; 24 August 1994
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978-1979) 134 CLR 143
In Re Allen; Allen v Manchester (1922) 41 NZLR 218
Lacey v Lacey, unreported; SCt of WA; Library No 980359; 25 June 1998
Singer v Berghouse (1994) 181 CLR 201
White v Barron (1980) 144 CLR 431
Wilson v Wilson, unreported; SCt of WA; Library No 930705; 17 December 1993
Case(s) also cited:
Atherton v Jacksons Corio Meat Packing Pty Ltd (1967) VR 850
Bosch v Perpetual Trustees Co Ltd [1938] AC 463
Dunning v Public Trustee, unreported; SCt of WA; Library No 960361; 12 July 1996
Goodman v Windeyer (1980) 144 CLR 490
Pontifical Society for the Propogation of the Faith and St Charles Seminary v Scales (1962) 107 CLR 9
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (1984) 1 WLR 271
Triplett v Triplett & Ors, unreported; SCt of WA; Library No 8146; 16 March 1990
(Page 4)
1 MASTER SANDERSON: Alan Frederick Jensen ("the deceased") died on 18 April 1999. He left a will dated 29 June 1996. The will was informal within the meaning of Part X of the Wills Act 1970. On 7 March 2000, Heenan J granted probate of this will to the first defendant. His Honour also ordered that the costs in respect of the application for the grant of probate be paid out of the estate.
2 By his will the deceased left £1,000 sterling to each of the third, fourth and fifth defendants. He left $2,000 to the second defendant. The rest and residue of his estate he left to the sixth defendant. He left nothing at all to his only child, the plaintiff. What is more, the will contained the following provision:
"I expressly direct to my Executor that no monies, asset or property real or otherwise in any form whatever is to be paid to or taken by my daughter KATHLEEN MADELEIN JEAPES of 309 Fulham Street, Cloverdale Western Australia nor to my grandson RICHARD ALAN JEAPES of 309 Fulham Street, Cloverdale Western Australia from my estate.
Furthermore should any claim against my estate by either one or both of KATHLEEN MADELEIN JEAPES or RICHARD ALAN JEAPES then I hereby direct my Executor or any agent appointed by him to utilise all if necessary of my estate in deference to the beneficiaries stated above in countering any claim made by them against this my will to the extent of all of the value of my estate whatsoever."
3 The first defendant appears to have taken the deceased at his word. There has been stout resistance to the plaintiff's claim. This is not to suggest that the actions of the first defendant have been in any way inappropriate. But the result has been a plethora of affidavits. There have been a total of 13 separate affidavits filed in support of, and in opposition to, this application. That suggests the estate is substantial. In fact the estate is quite modest and has been significantly depleted by legal expenses.
4 The first defendant filed an affidavit of 25 August 2000 which annexed an asset and liability statement as at 31 July 2000. This showed that the total assets in the estate amounted to $135,640.95. Of that total, just over $106,000 was the proceeds of a sale of a property at 34 Apollo Way, Carlisle. The rest was made up of cash and shares. The liabilities of the estate were said to be $65,747.81. Of this amount just over $18,000
(Page 5)
- was incurred in relation to the Part X application. As I read the statement of liabilities, the costs associated with this application, actually incurred and anticipated, are in the region of $41,000. During the course of the hearing I was advised that it was likely a further $10,000 in legal fees would be incurred consequent upon the hearing of the application. Assuming that each of the legatees was paid out their entitlement under the will, that meant that the net proceeds available to the residuary beneficiary were $69,893.14 without taking into account the incurred, but as yet, unquantified legal fees associated with the hearing. Assuming, as all parties urged I should, that these fees were in the region of $10,000, the amount of the residuary estate is likely to be just over $58,000. Clearly this is not a substantial estate.
5 As is so often the case in applications of this nature, the affidavit material filed by the parties is of little value. The affidavits are shot through with inadmissible hearsay. What remains is to a large extent irrelevant. Despite all the material filed, the picture that emerges is quite straight forward and the story can be simply told.
6 The plaintiff's mother, Justina Jensen ("Justina"), was born in Belgium on 29 November 1908. The deceased was born in the United Kingdom on 23 December 1923. The sixth defendant was born on 2 September 1928 and was the daughter of Justina. The fifth defendant was born on 25 June 1946. She is the daughter of the sixth defendant and stands in the position of step-granddaughter of the deceased. The deceased and the plaintiff's mother married in the United Kingdom on 23 September 1948. The plaintiff was born in the United Kingdom on 12 September 1949.
7 The deceased and his family migrated to Australia in 1951. The deceased was by trade a bricklayer and in 1958 he commenced a bricklaying business in partnership with the father of the first defendant. In 1972 the deceased and his late wife commenced construction of a duplex at 34 Apollo Way, Carlisle ("the property"). The property was held by the deceased and his wife as joint tenants. The plaintiff married in 1970 and has two sons - Christopher John Jeapes, born 29 May 1973 and Richard Alan Jeapes, born 7 November 1975. Neither of her two sons are presently dependent upon, or resident with, the plaintiff.
8 I will deal with the relationship between the plaintiff and the deceased in more detail below. However, it is appropriate at this stage to mention a number of other significant dates. On 20 July 1995 the deceased's late wife left the property and went to live with the plaintiff at
(Page 6)
- her residence at Fulham Street, Cloverdale. On 16 August 1995 the plaintiff's mother made a will leaving all of her estate to the plaintiff. She left nothing to the sixth defendant. The plaintiff's mother died on 2 December 1995. The deceased was taken ill in September 1998 and in March of 1999 he was admitted to the St John of God Hospice at Murdoch. He died just over a month later.
9 It is plain from the affidavit material that the plaintiff and the deceased never enjoyed a close and warm relationship. Why that should have been so is unclear. The plaintiff in her affidavit sworn 14 January 2000 in support of the application puts the position in the following way, (par 36):
"My relationship with my father was civil but distant. During the times when my mother was sick, I would visit very often to attend to my mother's needs. I would see my father during those visits and our relationship had always been civil. My father was not a demonstrative person nor was he communicative. Quite often, when I asked him how he was or where he was going he would reply 'none of your business'."
10 The evidence of the plaintiff is to the effect that the relationship between her mother and father was not a happy one. It must be said that this does not accord with what is said by all witnesses, but in so far as there is a conflict on the evidence between the plaintiff and other witnesses, I accept what is said by the plaintiff. I accept that the relationship was combative and that this may have had an adverse effect on the health of the plaintiff's mother.
11 When the plaintiff's parents separated, Justina was 87 years of age and the deceased was 72 years old. The plaintiff says that her mother had often threatened that she would leave her father and eventually matters came to a head. The plaintiff's mother waited until the deceased was out of the property and simply moved out, taking all her furniture with her. She moved in with the plaintiff. This clearly upset the deceased and whatever semblance of relationship had existed between father and daughter was entirely destroyed. It would appear that after her parents separated the plaintiff had little contact with her father.
12 The plaintiff says that when she learned her father was ill, she visited him in hospital. She stayed with him for "a few hours", but the deceased appears not to have appreciated his daughter's visit. Subsequently the plaintiff contacted the deceased by telephone, but the discussion was short
(Page 7)
- and was terminated abruptly by the deceased. When the deceased was admitted to the hospice at Murdoch the plaintiff contacted him again, but was told not to visit. Thereafter she contacted the hospital and asked the nursing staff to advise her father she had called. The deceased made no attempt to contact the plaintiff. They did not meet again before his death.
13 There is one further matter which is of significance. As I mentioned above, the property was held jointly by the deceased and his wife. After the couple separated, the plaintiff's mother decided to pursue a property settlement. The necessary documents were to be lodged with the Family Court on 1 December 1995. However, for one reason or another the documents were lodged too late to be received on 1 December and were not stamped until 4 December. The plaintiff's mother died on 2 December 1995. All the joint assets of the deceased and his wife, including the property, passed to the deceased by survivorship. The plaintiff, who was the sole beneficiary under her mother's will, received nothing.
14 The plaintiff is entitled to bring this action as a child of the deceased by virtue of s 7(1)(c) of the Inheritance (Family and Dependants Provision) Act 1972. The application falls to be determined under the provisions of s 6 of that Act. Section 6(1) is in the following terms:
"If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose."
15 The approach to be adopted was considered by the High Court in Singer v Berghouse (1994) 181 CLR 201. The majority Mason CJ, Deane and McHugh JJ, referred with approval to the decisions of White v Barron (1980) 144 CLR 431 and Bondelmonte v Blanckensee [1989] WAR 305 and put the position in the following terms (at 208 - 209):
"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a
(Page 8)
- determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. That description means no more than that the court's power to make an order in favour of the applicant under s 7 (of the equivalent New South Wales legislation) is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a)."
16 In determining the jurisdictional question, regard is to be had to the financial position of the plaintiff as at the date of the death of the deceased: see Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494. Despite the fact that the plaintiff filed three affidavits in support of her application, there is no direct evidence as to her financial position as at 18 April 1999. However, the first affidavit filed in support of the application was sworn 14 January 2000 and it may be assumed that the financial information provided in that affidavit is a reasonable guide to the plaintiff's position some eight months earlier. In her affidavit the plaintiff says that she is in full employment with the Department of Transport and has a net fortnightly income of $871.82. She says that her home in Cloverdale is worth approximately $130,000 and has a mortgage of $100,000. She says that the house is in need of some repair, but she does not have the funds to undertake these repairs. She says she has no other savings and no other source of income. The plaintiff is 50 years old and suffers from diabetes. The treatment regime for the diabetes costs her $21 per fortnight. There is no other detail as to her outgoings. As I have indicated above, although she has two sons, she presently has no dependants.
17 Returning to the decision of the majority in Singer and Berghouse, their Honours provide the following guidance when dealing with the jurisdictional question (at 209 - 210):
"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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
(Page 9)
- the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."
18 Looking at each of the matters referred to by their Honours, it is apparent that the plaintiff's financial position, while not desperate, cannot be said to be comfortable. On the information provided by the plaintiff, she has net assets of some $30,000. This is the value of her home after taking into account the mortgage. She has no other savings and no access to any other funds. Although she is in full time employment, her net disposable income after payment of the mortgage on her property and all the costs associated with the day to day running of the property, is hardly significant. In my view her financial position could be regarded as sound, but not comfortable.
19 For present purposes the deceased's estate can be regarded as being in the region of $60,000 in cash. It is clearly not a large estate and there is little to be gained by dividing it in a multitude of ways. None of the parties wished the specific legacies to be disturbed and the net value of the estate is calculated on that basis. That leaves the plaintiff and her half-sister as the two claimants to the modest estate.
20 Taking into account the totality of the evidence relied upon in this case, I am unable to reach any firm conclusion as to how or why the plaintiff forfeited her father's affection. Clearly when the plaintiff assisted her mother to move out of the matrimonial home, her father blamed the plaintiff and whatever the relationship may have been prior to that date, it thereafter broke down completely. But that does not explain the rather cool and distant relationship between the plaintiff and the deceased prior to her parents separating. What can be said, based upon the evidence, is that the plaintiff appeared to do nothing to alienate her father. In my view it cannot be said that any actions of the plaintiff led to the cool relationship. Put another way, the relationship between father and daughter, whilst cool, was not prior to the separation of the deceased and his wife hostile and there is no reason to sheet home to the plaintiff any responsibility for the difficulties between father and daughter.
21 Finally, there appears to be no other party beyond the plaintiff having a legitimate claim upon the bounty of the deceased. There is no evidence that the deceased supported the sixth defendant to any extent at all. He was certainly close to her, but she lived in England, he in Australia and they saw one another but rarely. The sixth defendant was not in a position to provide comfort and solace to the deceased on a regular basis. The
(Page 10)
- relationship, while undoubtedly close, does not adversely affect the plaintiff's claim.
22 In all the circumstances and applying the tests proposed by the court in Singer and Berghouse, I am satisfied that the jurisdiction question should be answered in the plaintiff's favour.
23 In reaching that conclusion I have not referred at all to what is sometimes called the moral obligation test. This test is derived from what was said by Salmond J in In Re Allen; Allen v Manchester (1922) 41 NZLR 218 at 220 - 221:
"The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."
24 In Singer v Berghouse the majority cast doubt on the applicability of this test. Their Honours say (at 209):
"For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language."
25 This statement builds upon what was said by Murphy J in a number of earlier cases. For instance, in Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978-1979) 143 CLR 134 his Honour said (at 158):
"Many cases suggest that an applicant must show a moral claim as well (see eg Bosch v Perpetual Trustee Co Ltd); this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme."
26 There is no doubt that the majority in Singer v Berghouse approached the jurisdictional question without in any way referring to the moral duty or moral obligation of the testator. Justices Toohey and Gaudron in the same case took a different approach and relied upon what was said by Salmond J in In Re Allen. In this Court differing approaches have been adopted: see Wilson v Wilson, unreported; SCt of WA; Library No 930705; 17 December 1993 and the differing approaches of Rowland and Seaman JJ and Owen J. In Goodchild v James, unreported; SCt of
(Page 11)
- WA; Library No 940444; 24 August 1994, Ipp J concluded that the jurisdictional question had a "moral element". However, that decision was published prior to the decision of the High Court in Singer v Berghouse.
27 In Lacey v Lacey, unreported; SCt of WA; Library No 980359; 25 June 1998, the Full Court, Kennedy, Franklyn and Walsh JJ, considered what matters were to be taken into account in answering the jurisdiction question. Franklyn and Walsh JJ refer specifically to Singer v Berghouse and both refer to the moral element of the appellant's claim. Franklyn J points to the difference between the New South Wales legislation under consideration in Singer v Berghouse and the Western Australian legislation. It is not entirely clear whether his Honour is of the view that the difference between the legislation is such as to limit the applicability of what the majority have to say in Singer v Berghouse about the moral aspect of the claim to New South Wales. In my view a fair reading of all three judgments makes it plain that their Honours took into account a moral dimension when considering the jurisdiction question.
28 Lest the approach that I have taken in following Singer v Berghouseand putting any moral obligation questions to one side is wrong, I should say that in my view a just and wise testator in the deceased's position would have provided for the plaintiff in his will. The plaintiff, while not in necessitive circumstances, is not comfortably off and any benefit she received from the deceased's will would clearly assist her proper maintenance and provide her with support. Furthermore, it is readily apparent from the length of the marriage between the deceased and his wife that if an application had been made in time to the Family Court by the wife, she would have been entitled to an interest in the property. There is no evidence as to what that interest might have been. Given that the deceased's wife left her entire estate to the plaintiff, in my view a just and wise testator would have recognised that his wife had an interest in the property which, if it had been realised, consequent upon an application to the Family Court for property settlement, would have passed to the plaintiff. Accordingly, in my view, a wise and just testator in the deceased's position would have left at least half his estate to the plaintiff.
29 Having concluded that the jurisdictional question is answered in the plaintiff's favour, it then becomes a matter of how the estate should be distributed. Returning again to Singer and Berghouse, the majority said (at 211):
(Page 12)
- "The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense. This is evident from the term 'may' in s 7 … The fact that the court has a discretion under s 7 means that, as stated above, it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour."
30 This discretionary aspect of the second stage of the process has been acknowledged in this Court in numerous cases. I need only refer to Bondelmonte v Blanckensee to support the principle.
31 In this case I am satisfied that a proper exercise of my discretion is to divide the residuary estate equally between the plaintiff and the sixth defendant, while leaving the specific legacies to the second through to fifth defendant untouched. The estate is not large and much of it has been consumed by legal expenses. In the circumstances it is a matter of doing the best with the little that is available. This division of the estate recognises the legitimate claims of the plaintiff while not attempting to rewrite the will of the deceased.
32 I will hear the parties as to the precise form of the orders.
0
6
1