Judgment Suppressed
[2005] WASC 201
•14 SEPTEMBER 2005
MWL -v- THE PUBLIC TRUSTEE [2005] WASC 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 201 | |
| Case No: | CIV:1351/2002 | 23 AUGUST 2005 | |
| Coram: | MASTER NEWNES | 14/09/05 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Provision for grandchildren increased | ||
| B | |||
| PDF Version |
| Parties: | ML, PL and BL by their guardian LEX MCCULLOCH the Executive Director Metropolitan Services of Family and Children's Services THE PUBLIC TRUSTEE (as Executor of the Will of EL) OEL |
Catchwords: | Succession Inheritance (Family and Dependants Provision) Act 1972 (WA) Bequests under will of testator to his grandchildren and their mother Mother was de facto wife of testator's deceased son Grandchildren made wards of the State Whether adequate provision for grandchildren Turns on own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1) |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 Goodman v Windeyer (1980) 144 CLR 490 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Singer v Berghouse (No 2) (1994) 181 CLR 201 Franks v Kitson [2000] WASC 115 Grainger v The Public Trustee WA, unreported; SCt of WA; Library No 950670 Pead v Perpetual Trustees WA Ltd as Executor of the Will of Hilda May Pead (1999), unreported; SCt of WA; Library No 990077 Stanley v Malcolm John Kirby (As Executor of the Estate of Norman Edward Ranyard deceased) (1998), unreported; SCt of WA; Library No 980025 Vigolo v Bostin [2005] HCA 11 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
The Estate of EL late of Western Australia (Dec)
- Plaintiffs
AND
THE PUBLIC TRUSTEE (as Executor of the Will of EL)
First Defendant
OEL
Second Defendant
Catchwords:
Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Bequests under will of testator to his grandchildren and their mother - Mother was de facto wife of testator's deceased son - Grandchildren made wards of the State - Whether adequate provision for grandchildren - Turns on own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1)
Result:
Provision for grandchildren increased
Category: B
Representation:
Counsel:
Plaintiffs : Ms A G Braddock SC
First Defendant : Ms N N Oldfield
Second Defendant : In person
Solicitors:
Plaintiffs : Clairs Keeley
First Defendant : Public Trustee
Second Defendant : In person
Bondelmonte v Blanckensee [1989] WAR 305
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Goodman v Windeyer (1980) 144 CLR 490
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (No 2) (1994) 181 CLR 201
Case(s) also cited:
Franks v Kitson [2000] WASC 115
Grainger v The Public Trustee WA, unreported; SCt of WA; Library No 950670
Pead v Perpetual Trustees WA Ltd as Executor of the Will of Hilda May Pead (1999), unreported; SCt of WA; Library No 990077
Stanley v Malcolm John Kirby (As Executor of the Estate of Norman Edward Ranyard deceased) (1998), unreported; SCt of WA; Library No 980025
Vigolo v Bostin [2005] HCA 11
- Note: On 14 September 2005 the Court ordered that in relation to these proceedings no matter likely to lead members of the public to identify any of the plaintiffs, or to identify any of the schools the plaintiffs attend, shall be published in any written publication available to the public or be broadcast, without the leave of the Court.
1 MASTER NEWNES: This is an application under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) by the plaintiffs by their guardian, the executive director, Metropolitan Services of Family and Children's Services, for further provision for them under the will of their late paternal grandfather, EL.
2 The plaintiffs are brothers. MWL (to whom I shall refer as ML) was born in 1989. PHL (to whom I shall refer as PL) was born in 1991 and BDJL (to whom I shall refer as BL) was born in 1994. The father of ML, PL and BL was RL, who died in 1994. It seems that at the time of his death, RL had no significant assets. The second defendant (to whom I shall refer as Mrs L) is the mother of the plaintiffs. She was not married to RL but changed her surname in approximately 1992. The second defendant was born in 1955 and is therefore currently 50 years of age.
3 RL's father, and therefore the grandfather of ML, PL and BL, was EL, who died in 2001. He left a will dated 13 September 1999. Probate of the will was granted to the Public Trustee on 18 September 2001. Under the will, after payment of expenses, the estate is to be divided into six equal parts, three of which are to go to Mrs L and one part each to ML, PL and BL. At the date of EL's death, the value of his estate was $360,433.85.
4 On 29 September 1999 by consent orders made in the Children's Court, ML, PL and BL were committed to the care of the Department of Community Development for two years (the "Department"). It is unnecessary for present purposes to go into any detail in relation to the circumstances in which those orders were made. Suffice it to say that the orders were made after a pattern of neglect of their welfare by Mrs L. That followed a familiar pattern, all of Mrs L's surviving children having at some stage been made wards of the State or placed in foster care. ML, PL and BL are the youngest of those children.
5 On 27 September 2001, the Minister for Community Development extended the wardship of ML, PL and BL until they attained the age of 18 years. By virtue of s 4(2) of the Child Welfare Act1947 (WA), ML, PL and BL are wards of the State and the executive director of the Department is their guardian.
6 EL was a widower at the time of his death and RL, his only child, had pre-deceased him. His only surviving issue were ML, PL and BL. The present application is brought on their behalf and is opposed by Mrs L. It was not in issue on this application that both at the time of death of EL, and now, Mrs L is of very modest means, with no significant assets and a low income. I will come back to that in due course. Mrs L now resides interstate.
7 On 29 August 2003, ML, PL and BL were each assessed by Dr Linde, a consultant psychiatrist and child psychiatrist. Dr Linde had assessed BL earlier, on 15 October 2002, when he identified BL as having an attachment disorder, specific learning disorders and probably a language disorder. Dr Linde reported that other agencies had diagnosed attention deficit hyperactive disorder ("ADHD") and recommended that BL undergo a trial on Dexamphetamine. It was clear from Dr Linde's report at that time that BL had educational needs and required help for social and behavioural problems. He also suffered from asthma. The position had not changed, in Dr Linde's opinion, when he saw BL again on 29 August 2003. At that time BL was on Dexamphetamine for his ADHD.
8 When he assessed them on 29 August 2003, Dr Linde concluded that ML and PL had similar educational needs to BL and also required similar help for social and behavioural problems. In addition, he considered that PL had ADHD, for which he had been prescribed Dexamphetamine by a paediatrician, and that he needed to be assessed for depression. In Dr Linde's opinion both ML and PL had an attachment disorder.
9 Dr Linde concluded that BL and PL needed ongoing psychiatric reviews and medication, and possibly counselling. He considered ML would probably need medical reviews and counselling. They might all need Education Department reviews and academic help.
10 In Dr Linde's opinion, in the future ML, PL and BL will be more vulnerable than the average person to psychiatric disorders, such as depression. They will also be more vulnerable to psychological problems, relationship disturbances, alcohol overuse and a lack of resilience in overcoming problems. Dr Linde noted that recent neuro-psychological and other research had confirmed early research which found that early infant and childhood traumas and neglect can damage brain development and the development of things taken for granted in maturity. He considered that early intervention, which prevents long-term negative effects, was too late for ML, PL and BL. Dr Linde considered that whilst in the future the involvement of a clinical psychologist might only involve infrequent reviews, each boy may need full weekly counselling, even into their 20s or 30s.
11 In an affidavit sworn on 4 December 2002, Mr McCulloch noted that ML had been in trouble at school and had been suspended. There had been a lack of progress and motivation with his school work and he continued to lack basic social skills. Mr McCulloch said that after five years of care, each of the boys was far from functioning normally in society and was likely to continue to have special needs into adulthood. There had been difficulty finding appropriate carers for them and they had been living in cottage accommodation.
12 Mr McCulloch also gave evidence at the hearing to provide more current information regarding ML, PL and BL. His evidence was much more encouraging, each of the boys now appearing to be more settled and more motivated, and making friends in their respective peer groups. PL and BL had ceased taking medication and their peer relationships and social behaviour had shown very substantial improvement. PL and BL have some learning difficulties for which they are receiving professional assistance. Mr McCulloch was not aware that any of the boys had articulated specific career ambitions and, in particular, was not able to comment on Mrs L's contention in cross-examination that ML and PL intended to join the army.
13 Mr McCulloch confirmed that the needs of ML, PL and BL, including extra needs, were being met by the Department and Mercycare, and that that would continue to be the case while they were in the care of the Department. Mr McCulloch said that the money the boys obtained from the will of their late grandfather would be placed with the Public Trustee for investment and, subject to the Trustee's discretion to make advancements to the boys when they were older, would be available to them in full upon turning 18 years of age.
14 It is necessary then to turn to the position of Mrs L. In her evidence in these proceedings, Mrs L said that she met EL when she first established a relationship with RL some 15 years ago. She says she was very close to EL. With the birth of each of ML, PL and BL, EL said that he had made provision in his will for them. She says EL said that he had left some of his estate to her and asked her to make sure she purchased a house as a home for the plaintiffs. According to Mrs L, EL often said to her that he would make sure she had enough money to buy a home for herself and the boys to live in.
15 In an affidavit sworn on 3 September 2002, Mrs L deposed to her financial position at that time. There is no specific evidence as to her financial position at the date of EL's death, but I think it is properly to be inferred that it was substantially the same as at the time she swore the affidavit. In her evidence at the hearing, Mrs L said that her current position remained the same as that referred to in her affidavit of 3 September 2002.
16 According to Mrs L, at the time she swore her affidavit her income comprised a non-taxable payment of $6000 per annum for service in an armed forces reserve and weekly sums of $223.40 by way of a pension and domestic allowance, $34.47 income support, $27.98 rent assistance and $2.90 pharmaceutical allowance, a total weekly sum of $404.13. Mrs L estimated her fixed weekly expenditure at that time as rental of $155 and legal fees of $25. Mrs L estimated her weekly living expenses at $302 per week. Her assets, as at 3 September 2002, totalled $713, including an amount of $200 for a car.
17 On an application of this nature the Court is required to carry out the two-stage process described by the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208 -210. The first stage calls for a determination of whether the applicants have been left without adequate provision for their proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicants, requires the Court to decide what provision ought to be made out of the deceased's estate for the applicants.
18 The determination of the first stage 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, education and advancement in life appropriate for the applicants having regard, amongst other things, to the applicants' financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicants and the deceased and other persons who have legitimate claims upon his bounty.
19 The determination of the second stage 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 applicants. There may, however, be some circumstances in which a Court could refuse to make an order notwithstanding that the applicants are found to have been left without adequate provision for proper maintenance.
20 The High Court said that the first question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicants have been left without adequate provision for their proper maintenance, education and advancement in life. The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense.
21 In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
22 Whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in the life of the claimant, is to be determined as at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 494. If that question is answered in the affirmative, the Court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order: Bondelmonte v Blanckensee [1989] WAR 305 per Malcolm CJ at 307.
23 It is, of course, well established that, in exercising its powers under the Act, the Court is not entitled to rewrite the will to accord with its own views of fairness or justice: Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146. The freedom of testamentary disposition should not be so encroached upon that the testamentary wishes of the deceased as expressed in the will are to have only prima facie effect, the real dispositive power being vested in the Court: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon J at 19.
24 It was submitted on behalf of the plaintiffs that they have the strongest claim for provision from the estate of their late grandfather, being the only children of his deceased son and his only surviving issue. Their needs are, and will continue to be, substantial, although their immediate costs are being met by the Department. It is, however, likely that, upon attaining their majority, they will require ongoing assistance and will face more than the usual difficulties in making their way independently in the world.
25 Senior counsel pointed out that once they cease to be under the care of the Department the plaintiffs are likely to be left largely to fend for themselves, with possibly limited assistance from government agencies, in relation to their accommodation, furnishings, household goods, transport and the other necessities of life. Based on Dr Linde's assessment, they may also need further education or training, and are likely to require additional psychological or psychiatric treatment in adulthood. All of those things will involve expense which it is important they be put in a position to meet if and when the need arises.
26 In the circumstances, a wise and just testator, knowing the circumstances of the plaintiffs, would have sought to ensure that they were in a position to start their adult lives with more than simply the basic necessities, but, particularly given the problems they inevitably face, with reasonable and adequate provision for their likely day-to-day needs and the inevitable contingencies, and with provision to secure education and training to develop a career and for any psychological, psychiatric or medical treatment they might reasonably require.
27 It was submitted that Mrs L, on the other hand, had little moral claim on the estate. It was evident that in bequeathing money to her, the deceased intended it to be used by Mrs L to provide support and nurture for the plaintiffs, a role which she has failed to fulfil and which the State has had to assume. It was consistent with Mrs L's evidence that the deceased did not intend to provide her with a substantial proportion of the estate for her separate and independent enjoyment, but rather as a means of ensuring accommodation and a stable home life for ML, PL and BL.
28 Senior counsel referred to evidence of DT, who was a close friend of EL. In an affidavit sworn on 29 October 2002, DT said that EL had told him his main concern was to provide for his grandchildren and he wished to leave his estate to them, but an officer from the Public Trustee's Office had told him he must make provision for Mrs L to avoid her making a claim against his estate.
29 Evidence of statements made by a testator explaining why he made his will as he did are admissible in evidence in proceedings of this nature: Hughes v National Trustees and Executors Agency Co of Australasia Ltd (supra) per Gibbs J at 150. However, senior counsel for the plaintiffs, very properly, acknowledged that as DT was unable to attend for cross-examination on his affidavit due to ill health and is of very advanced years, his evidence must be treated with some caution.
30 Mrs L maintained that she had been very close to EL and it was always his intention to ensure that she was adequately provided for and had the means to obtain her own house. She said that the moneys she received from the will would eventually provide a home for ML, PL and BL and ultimately would be theirs. Mrs L also referred to a letter, apparently written by ML and PL to the solicitors acting on the instructions of the plaintiffs' guardian, opposing any disturbance to the bequests under the will.
31 I do not think there can be any doubt that the deceased's intention was substantially to provide for the welfare and future of ML, PL and BL and that the substantial bequest to Mrs L was, at least in part, seen by him as a means to that end. It is unnecessary to go the evidence of DT in relation to that. It clearly emerges from Mrs L's own affidavit evidence.
32 It is not difficult to understand the deceased's concern to provide for ML, PL and BL. Even prior to his death, the boys had been placed in the care of the Department for two years because of Mrs L's failure adequately to care for them. By reason of the trauma associated with their early upbringing and the assumption of their care by the Department, it was likely the difficulties they would encounter in adulthood, particularly in early adulthood, would be much greater than the average person would normally expect to encounter and their needs were therefore likely to be substantial. That has been borne out by the assessments that have been carried out by Dr Linde.
33 I accept that Mrs L's means and income-earning capacity are very modest, but in light of all the evidence I am quite satisfied that the will of EL did not make adequate provision for the plaintiffs.
34 The question then is what provision should be made for them from the estate. As at the present time, the value of the estate of the deceased is $370,702.
35 I was not provided with up-to-date figures for Mrs L's income and expenditure and, consistent with her evidence, assume for present purposes that, although the monetary figures will have changed since 2002, the levels of income and expenditure continue to be very modest.
36 Mrs L says she lives on her own in a three-bedroom, two-bathroom unit which contains minimal furniture, all of which is second-hand. She has no superannuation entitlements. Mrs L said in her affidavit of 3 September 2002 that she consumed minimal food because she could not afford to purchase more.
37 That portrayal of her circumstances, however, is to be contrasted with a statement she made at the hearing that she has purchased a computer for the plaintiffs and a car to the value of $5000 for ML. It is not clear whether her financial circumstances have improved since September 2002 or whether she rather overstated her degree of deprivation in that affidavit. In any event, I am satisfied, and it was not in issue, that her means are very modest and her lifestyle is, at best, frugal.
38 There is no evidence that Mrs L is in paid employment, apart from her service in the armed forces reserve, but there is also no evidence that Mrs L is unable to work, if work is available. Her occupation is described in some of the papers in evidence as a cook. Mrs L apparently has no current dependants.
39 While I accept that Mrs L is without any significant assets and has only a modest earning capacity, and apparently has no provision for her later years, in my view Mrs L does not have the same claim on the estate as the plaintiffs, particularly given the difficult circumstances of their childhood and the problems they are likely to encounter in later life.
40 The plaintiffs' essential needs until they reach the age of 18 years will be provided by the Department. It is evident, however, that they will each start adulthood at a distinct disadvantage, having to find their own way in life from the outset without the sort of family support that would assist in that process, against the background of a difficult and in many respects traumatic childhood, with social and educational problems stemming from it which may require further professional assistance, and with the prospect of future psychological and psychiatric problems requiring ongoing treatment.
41 I accept the submission of their counsel that what constitutes proper provision in these circumstances is not susceptible to any specific monetary assessment, but that the need for greater provision than was made for the plaintiffs in the will is manifest.
42 In light of all the circumstances, I consider that 80 per centum of the estate should go to ML, PL and BL, to be divided equally between them, and 20 per centum should go to Mrs L.
43 I will hear the parties on the form of the orders to be made and on costs.
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