Jeffery v Guider; Parry v Guider

[2010] NSWSC 705

CITATION:	Jeffery v Guider; Parry v Guider [2010] NSWSC 705
HEARING DATE(S):	23 June 2010
JUDGMENT DATE :	2 July 2010
JUDGMENT OF:	Ball J
DECISION:	1. That, in place of the gift made to the plaintiff in proceedings 2010/12473 by clause 3 of the will of Valerie Anne Barraclough (the deceased), the plaintiff receive 55 per cent of the net estate of the deceased after payment of all debts, expenses and costs and Mark Edward Keith Campbell receive 20% of the net estate. 2. The plaintiff in proceedings 2009/291030 be released from any claim the estate has in respect of the sum of $20,450 and jewellery belonging to the deceased that are in the plaintiff’s possession. 3. The costs of the defendants on an indemnity basis be paid out of the estate of the deceased. 4. The costs of the plaintiff in proceedings 2010/12473 on a party and party basis be paid out of the estate of the deceased. 5. The costs of the plaintiff in proceedings 2009/291030 in the sum of $20,000 be paid out of the estate. 6. Direct that, in the event that any party seeks a costs order other than the ones made, that application be made not later than 12 July 2010. 7. Direct that these orders not be entered before 19 July 2010.
CATCHWORDS:	SUCCESSION - Family provision - adult son - adult daughter - costs order where plantiff only partially successful.
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Robinson v Tame (NSWCA, Kirby P, 9 December 1994, unreported) Singer v Berghouse (No. 2) [1994] HCA 40 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11
PARTIES:	Louise Allison Jeffery (First Plaintiff) Gregory Dean Parry (Second Plaintiff) John Guider (First Defendant) Terrie Jean Stanhope (Second Defendant)
FILE NUMBER(S):	SC 2009/291030; 2010/12473
COUNSEL:	K Morrisey (First Plaintiff) Mrs M Bridger (Second Plaintiff) R D Marshall (First & Second Defendants)
SOLICITORS:	Jamie Fisher & Associates (First & Second Plaintiffs) Richardson Legal Solicitors (First & Second Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

2 JULY 2010

2009/291030 LOUISE ALLISON JEFFERY v JOHN GUIDER & ANOR
2010/12473 GREGORY DEAN PARRY v JOHN GUIDER & ANOR

JUDGMENT

1 HIS HONOUR: These are applications pursuant to s 7 of the Family Provision Act 1982 (“FPA”) by an adult son (who, for convenience, I will refer to as “Gregory”) and adult daughter (“Louise”) that provision be made for them out of their mother’s estate. By her will, their mother, Valerie Anne Barraclough (“the deceased”) left 25% of her estate to each of the plaintiffs. She left the remaining 50% to Mr Mark Campbell (“Mark”), who is not related to the deceased, but whom the deceased treated, in many ways, as a son.

Background

2 The deceased was born in 1935 and died, at the age of 73, in 2008. In 1957, she married Cyril John Parry. They lived in Nyngan. The deceased’s husband was a heavy drinker and often out of work. The deceased worked at the local hotel to make ends meet.

3 Louise was born in 1958 and Gregory in 1963. Both of them had unhappy childhoods. Their parents fought regularly and the police were often called to the house. The deceased’s relationship with her children appears to have been affected very substantially by her relationship with their father. That was particularly true of Gregory, who was the younger. Both of them were often the subject of corporal punishment at the hands of their mother. From an early age, they were largely left unsupervised. Both of them did most of the household chores. From the age of about 6 or 7, Gregory used to go to the hotel where the deceased worked as a barmaid. The deceased gave him a counter lunch together with a shandy (beer and lemonade). He started working at the age of 8 or 9 for Larsen’s Transport Company, assisting with deliveries. He was collected from his house by the person for whom he worked at about 3.30pm and worked until about 6.30pm making deliveries. He frequently missed school. When he got home, he used to fix himself something to eat and have a couple of beers. The deceased did not get home until about 10.00pm or 11.00pm. Gregory received approximately $2.50 per week for the work he did which he gave to his mother. On most weekends, he used to carry out farm chores on his maternal grandfather’s rural property known as “Beetree”.

4 In 1970, the deceased and her husband separated. At about the same time, the deceased met Barney Barraclough (“Barney”), who became the deceased’s lifelong partner.

5 Louise left home in 1974 when she was approximately 16 and moved to Newcastle to undertake a secretarial course that the deceased had arranged for her. From around that time, she was financially independent. At about the same time, Barney started to live with the deceased.

6 In 1978, at the age of 15, Gregory left school and home without telling anyone and went to stay with an aunt. The aunt arranged for him to be collected by his father who took him on in his painting business. It appears that the deceased made no attempt to contact Gregory after he left home.

7 From then on, the deceased and her two children largely went their separate ways.

8 Louise first worked as a receptionist in Nelson Bay. She married Kerry Martin in 1997. That marriage lasted four years. In 1985, she married Brett Jeffery and went to live on his family farm called “Trowell Creek” at Hermidale, which is approximately 70 kms from Nyngan. They had two children, Lee and Shane, who are now 22 and 19 respectively. The farm had to be sold in the early 1990s and Louise and her husband moved to Nyngan. She worked in various positions there. She was employed by a dentist for 13 years and, since 2002, has worked at the Department of Ageing, Disability and Homecare, a State government department. Her husband obtained a position with Country Energy, where he still works. From the time she left home until March 2007, Louise maintained some contact with the deceased. It appears that she visited the deceased on a number of occasions, although those visits decreased in frequency when her children started at school. Louise and the deceased also kept in touch by telephone and mail and Louise sent photographs of her family to the deceased. The relationship, however, was by no means close and the deceased rarely, if ever, spoke of her family to her friends.

9 Gregory worked with his father until early 1979. He then moved to Sydney where he worked as a storeman. Between 1979 and 1990 he was employed in various jobs in Yennora, Dunedoo and Sydney. He married Leanne in 1988. He has three children – Toni, who is 26, Daniel, who is 22 and Bradley, who is 21. In 1990, Gregory moved to Wellington where he worked as a self-employed painter and decorator with his father. He was divorced from his wife in 1992. It appears that some time after that he moved to Long Jetty, where his mother and Barney had bought a nursery. Then, in 1996, he moved back to Wellington to work as an assistant greenkeeper. He left that job some time before 2001 and worked as a handyman and was unemployed in Wellington before moving to Lismore, where he worked as a self-employed painter. In 2005, he commenced a de facto relationship with his current partner, Jo-Anne Wright. Like his sister, Gregory maintained some contact with his mother. He said (and I accept) that he sent the deceased cards for her birthday, Christmas and Mothers Day. While he was at Long Jetty with Leanne and his children, he would often help out at the nursery and he developed a fatherly relationship with Barney. In 1990, at the deceased’s request, he spent three weeks painting his maternal grandfather’s house. In 1996, he postponed his new job as a greenkeeper at Wellington Golf Club in order to look after the nursery while the deceased and Barney went to Fiji on a holiday. He maintained regular contact with the deceased through visits and telephone calls. He has had a constant struggle with alcohol addiction, which he had developed at an early age.

10 The deceased and Barney lived on various rural properties during 1978 to November 1980. In 1978 or 1979, they were living at Wingadee Station for about a year. While they were there they met Mark, who was 4 or 5 years old at the time. Mark also lived at Wingadee, about 2 kms from the deceased and Barney, with his family. During that time the deceased and Barney established a close relationship with Mark. He spent a lot of time with them. He regularly slept at their place and they treated him as a son. In 1980, the deceased and Barney moved from Wingadee to manage other properties in the Nyngan area. Mark went to stay with them during school holidays.

11 In 1983, the deceased and Barney moved to Long Jetty where they had bought a nursery and art gallery business which they continued to operate until the end of 1998, when they retired. Mark used to spend school holidays there and continued to visit them after he left school at least once a year for one to two weeks. The deceased and Barney visited Mark in about 2006 at West Kimberley where he was working at the time. Mark also invited the deceased and Barney to attend his wedding in Broome in 2007. However, due to Barney’s ill health, they were unable to go.

12 Barney died in March 2007. Louise, Gregory and Mark attended the funeral. It was the first occasion on which Mark can recall meeting Gregory and Louise.

13 In June 2007, the deceased gave Louise a power of attorney and, on 3 July 2007, she made a will in which she appointed Louise as her executor, gave a legacy to Mark of $10,000 and left the residue to be divided equally between Louise and Gregory.

14 In April 2008, the deceased advised Louise that she had been diagnosed with pancreatic cancer. In the meantime, the relationship between the deceased and Gregory had deteriorated considerably. Shortly after Barney’s death, the deceased asked Gregory to paint her house at Long Jetty, which he was unable to do because of work commitments. The deceased was upset with his refusal. Nonetheless, he visited her on two other occasions. However, Gregory’s encounters with his mother exacerbated his alcoholism and, following one of those visits, he attempted suicide and was hospitalised.

15 The deceased died in November 2008. Following Barney’s death up until August 2008, the deceased had been looked after by a close friend, Terrie Stanhope, and, in June 2007, the deceased appointed Mrs Stanhope as her enduring guardian. In August 2008, the deceased made a new will appointing John Guider and Mrs Stanhope as her executors. By that will, she left 50% of her estate to Mark and 25% to each of Louise and Gregory. What caused the deceased to change her will is unclear.

16 From June 2008, Louise gradually became increasingly involved in caring for the deceased. She, her husband and their son, Shane, visited the deceased on a couple of occasions while she was in hospital and Louise spent 11 days in Sydney while the deceased was having an operation and recuperating. Louise visited the deceased again on the weekend of 18 July 2008 and telephoned her frequently. In August 2008, a friend who had been staying with the deceased had to leave because her own father had died. From that time on, Louise largely took over the care of her mother until her mother’s death. During that time, Louise took possession of $20,450 cash which the deceased had kept at home and jewellery to the value of approximately $2,500.

17 Gregory also visited his mother while she was in hospital, although during that visit she was hostile towards him.

18 From the time the deceased was diagnosed with pancreatic cancer to the time of her death, Mark also kept in contact with her. They spoke often over the telephone and he visited her in all on about 5 occasions.

19 The estate has been realised and is now held in the form of cash deposited in the executors’ solicitor’s trust account. The total amount realised was approximately $509,000. However, Mrs Stanhope has made a claim for commission of between $7,000 and $14,000 and the estate’s legal costs are estimated to be approximately $61,000. Although the deceased did not lodge a tax return for several years, it appears that no tax will be payable by the estate. The net value of the estate is estimated to be $444,000 (not including the claim for commission and the money held by Louise). Louise’s legal costs are approximately $50,000. Gregory’s are estimated to be approximately $38,000. Louise and Gregory have each received $23,000 from a superannuation policy held by their mother.

20 Gregory has no significant assets. Following his mother’s funeral, his alcoholism reached a critical point. In January 2009, he closed his business and completed four and a half months in rehabilitation. His partner, Jo-Anne, paid all his outstanding business and personal debts and has largely supported him. He successfully completed his treatment in April 2009 and since then has continued treatment through a private psychologist, who he sees once a fortnight, attendance two or three times a week at Alcoholics Anonymous and attendance weekly at AXIS, a Drug and Outreach Rehabilitation meeting. He has recently completed a Training and Assessment Certificate, which qualifies him to train and assess apprentice tradesmen and he hopes to get a job in that field. At the moment, however, he is hampered by the fact that he lost his driver’s licence for 3 years for a drink-driving offence. He does not get his licence back until next year. In the meantime, he has been working voluntarily for an organisation called Habitat for Humanity, which assists people in need to do up their houses. During this time, he has received payments from Centrelink. He lives with Jo-Anne and contributes $70 per week from his Centrelink payments towards accommodation costs. He is deaf in both ears and requires hearing aids which cost approximately $1800 each. He has a number of other medical conditions.

21 Louise owns a house with her husband worth approximately $250,000. There is currently a mortgage over the house of approximately $18,000. They own two cars and a boat and have cash and shares worth approximately $15,000. Louise also has superannuation to the value of $61,000 and her husband superannuation worth approximately $100,000. Her health is fair to good. She is currently employed as a Senior Project Officer and earns $64,500. Her husband is employed at Country Energy and earns approximately $65,000 per year.

22 Mark is currently 35 years old. He married in January 2007 and has two daughters. He is in business as a welder which he operates with his wife. They have a house in Cootamundra worth approximately $190,000 which is the subject of a mortgage of $135,000. They own two vehicles and have savings of approximately $27,000. He maintains a close relationship with his family.

23 Whether an order should be made under s 7 of the FPA raises two questions. The first is whether the plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life. The second is, assuming they have, what provision, if any, should be made for them: Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. The assessment is to be made having regard to the circumstances as they exist at the time the order is made: FPA s 7.

24 As McClelland CJ in Eq pointed out in Re Fulop Deceased (1987) 8 NSWLR 679 at 679, the word “proper” in FPA s 9(2) connotes a standard that is appropriate to all the circumstances of the case. Those circumstances include:

“(a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff; (c) the nature and extent of the plaintiff’s present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.” (ibid)

25 Section 11 of the FPA gives the court a broad power to determine the manner in which provision should be made. The court may do so in any manner it thinks fit.

Gregory

26 In my opinion, the deceased did not leave Gregory with adequate provision for his proper maintenance, education and advancement in life. Gregory has no real assets. Although it is clear that he has made very substantial strides in overcoming his alcoholism, he still faces significant hurdles in finding suitable employment. He maintained relations with his mother and, although those relations were not good, I think his mother is largely responsible for that fact. Moreover, I think his mother must bear some of the responsibility for the life that Gregory has had. The only other person with a significant claim to testamentary recognition is Louise. However, her claim is not nearly as strong as Gregory’s. The estate is not large. A 25% interest of it is not likely to be worth more than approximately $100,000.

27 Gregory gave evidence of a number of things that he needed. To some extent, those needs were addressed by the superannuation payment that he received. Some of his needs are ongoing needs which are likely to be paid out of the income he has. In oral evidence, he described his principal need as sufficient money to buy a house in the Lismore area which he could do up and rent and which, if necessary, could become his home if his relationship with Jo-Anne does not continue. He estimated the costs of buying such a house as between $210,000 and $220,000. An adult child cannot always expect a parent to ensure that the child will have a house to live in on the parent’s death: see Taylor v Farrugia [2009] NSWSC 801 at [57] per Brereton J. However, in my opinion, it is appropriate to measure Gregory’s need by reference to the cost of buying a house of the type that he has described. A house of that type will give Gregory a form of occupation and something to work towards, which I think is an important aid to his recovery from alcoholism. In addition, it will give him a form of security which he did not have as a child and which he has never had in his life. The estate is sufficiently large to afford a bequest that would achieve those goals. For those reasons, I accept Ms Bridger’s submission that Gregory should receive 55% of the estate. The estate should also pay his legal costs.

Louise

28 The position of Louise is much more difficult. Louise may feel with some justification that she has been treated poorly by her mother. That, however, is not the test: see Robinson v Tame (unreported, New South Wales Court of Appeal, Kirby P, Handley and Sheller JJA, 9 December 1994) 8 per Kirby P. Under the will, Louise received 25% of the estate. The total value of the estate (including the cash held by Louise) was approximately $530,000. Even assuming that the claim for commission succeeds, that means that Louise stood to inherit approximately $135,000. In addition, she received $23,000 from her mother’s superannuation. Consequently, the total amount that Louise might have expected to receive was in the order of $160,000. That amount has been reduced substantially because of the legal costs the estate must pay. Some of those costs, of course, were incurred in defending the claim brought by Louise. Those costs should not be taken into account. However, some of those costs were incurred in defending the claim brought by Gregory; and that claim was not in Louise’s control. In these circumstances, I accept that Louise has not been left with adequate provision for her proper maintenance, education and advancement in life because she will not receive the amount her mother might reasonably have thought she would receive. In many cases, that consideration may be of limited relevance because of other claims on the estate. However, in this case, the only other claims on the estate are those of Gregory and Mark. Gregory’s claim has been addressed and Mark’s claim for testamentary recognition is weak. In those circumstances, I thin it is appropriate to measure the adequacy of the provision she will receive by reference to what she could have expected to receive absent any other claim.

29 The total amount of costs the estate is likely to incur for which Louise is not responsible is in the order of $80,000 to $90,000. That amount consists of Gregory’s costs of approximately $38,000, the costs the estate would have incurred if only Gregory had brought a claim - which are likely to be in the order of $30,000 to $40,000 - plus the possible claim for commission. Louise’s share of that amount is approximately $20,000. In those circumstances, in my opinion, it would be appropriate to make provision for Louise by an order releasing her from any claim the estate has to a return of the jewellery and the $20,450.

30 That leaves the issue of costs. In my opinion, it would be desirable to make an order for costs now in the hope that that will avoid the necessity for the parties to incur further costs in making submissions on that issue. I recognise, however, that I do so without having heard submissions on the question of costs and possibly without knowing all the facts relevant to the question of costs. For that reason, I think that I should give leave to the parties to make an application to vary any costs order that I make.

31 The normal principle is that costs follow the event: UCPR r 42.1. However, in the case of Louise’s claim, in my opinion it would be appropriate to make a different order. I say that for several reasons.

32 First, although Louise was successful, the degree of her success was small. I think that that is a matter that I should take into account in determining what costs order should be made.

33 Secondly, I think that the costs incurred by Louise are disproportionate to the success that she has had. Her costs are in the order of $50,000. They are substantially more that those of Gregory. Part of the reason for that is that she filed affidavits from a number of other witnesses going to her relationship with her mother. In my view, they were of marginal relevance and, having regard to the size of the estate and the strength of her claim, the costs of obtaining them are not costs for which the estate should be liable.

34 Thirdly, I do not think that the question of costs can be divorced entirely from an assessment of the provision that should be made for each party out of the estate. Having regard to the size of the estate, the costs that the estate is required to pay will have a major impact on the amount that each beneficiary receives and, in particular, the effectiveness of the provision made in Gregory’s favour to achieve the purpose intended by it. I think that that is a matter that I should take into account, particularly in circumstances where I have determined that the provision for Louise was inadequate having regard to the estate’s liability to pay costs.

35 Taking these matters into account, I think that I should order that the estate pay Louise the sum of $20,000 in respect of her legal costs.

36 Obviously, the defendants should be indemnified by the estate for their costs.

Orders

37 The orders I make are:

1. That, in place of the gift given to him by clause 3 of the will of the deceased, the plaintiff in proceedings 2010/12473 receive 55 per cent of the net estate of the deceased after payment of all debts, expenses and costs and Mark Edward Keith Campbell receive 20% of the net estate.

2. The plaintiff in proceedings 2009/291030 be released from any claim the estate has in respect of the sum of $20,450, and jewellery belonging to the deceased, which are in the plaintiff’s possession.

3. The costs of the defendants on an indemnity basis be paid out of the estate of the deceased.

4. The costs of the plaintiff in proceedings 2010/12473 on a party and party basis be paid out of the estate of the deceased.

5. The costs of the plaintiff in proceedings 2009/291030 in the sum of $20,000 be paid out of the estate.

6. I direct that, in the event that any party seeks a costs order other than the ones that I have made, that application be made by arrangement with my Associate and not later than 12 July 2010. I direct that the order not be entered before 19 July 2010.

**********