Katich v Rendell - [2010] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KATICH -v- RENDELL [2010] WASC 101

CORAM: MASTER SANDERSON

HEARD: 24 MARCH 2010

DELIVERED : 20 MAY 2010

FILE NO/S: CIV 1563 of 2009

MATTER :The Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
The Estate of MARY COLLEY, late of 106 Kitchener Road, Alfred Cove, Western Australia, Deceased

BETWEEN: DAVID MAXWELL KATICH
Plaintiff
AND
JANICE MARGARET RENDELL (As Executrix of the Will of MARY COLLEY, Deceased)
First Defendant
JANICE MARGARET RENDELL
Second Defendant
SCOTT KATICH RENDELL
KYNAN RENDELL
Third Defendants
TONY MIOCEVICH [Action discontinued]
Fourth Defendant
THE SALVATION ARMY [Action discontinued]
Fifth Defendant
CARITAS AUSTRALIA (Project Compassion) [Action discontinued]
Sixth Defendant
MISSION AUSTRALIA [Action discontinued]
Seventh Defendant
CHLOE RENDELL
Eighth Defendant

Catchwords:

Inheritance Act claim - Claim by adult son - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     Mr M J McCusker QC with Mr R I Fletcher
Second Defendant         :     Mr M J McCusker QC with Mr R I Fletcher
Third Defendants          :     Mr D P H Engelter
Fourth Defendant          :     Not applicable
Fifth Defendant            :     Not applicable
Sixth Defendant            :     Not applicable
Seventh Defendant        :     Not applicable
Eighth Defendant          :     Mr D P H Engelter

Solicitors:

Plaintiff:     Biddulph & Turley
First Defendant             :     Butlers
Second Defendant         :     Butlers
Third Defendants          :     Williams & Hughes
Fourth Defendant          :     Not applicable
Fifth Defendant            :     Not applicable
Sixth Defendant            :     Not applicable
Seventh Defendant        :     Not applicable
Eighth Defendant          :     Williams & Hughes

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin [2001] WASC 335
Vigolo v Bostin [2005] HCA 11

MASTER SANDERSON: This is the plaintiff's application brought under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). Mary Colley died on 14 October 2008. The plaintiff is her son. Janice Margaret Rendell is the daughter of the deceased. The third defendants are the grandsons of the deceased and the sons of Janice Rendell. (The action has been discontinued against the fourth, fifth, sixth and seventh defendants.) The eighth defendant is the infant daughter of the second‑named third defendant.
The deceased left a will dated 19 July 2004. Probate of the will was granted to the first defendant on 9 December 2008. The will itself appears as Annexure DK1 to the affidavit of the plaintiff sworn 16 March 2009.
The parties were able to agree the value of the estate. As at the date of death of the deceased (14 October 2008) the estate was valued at $1,523,577.87. As at the date of trial the estate was valued at $1,453,721.23. Under the terms of her will the deceased left a number of specific legacies. She then directed the residuary estate should be divided equally between her two children, her two grandchildren and any great‑grandchildren. That means the residuary estate was to be divided five ways.
The upshot of all of this was that by specific bequest Janice Rendell was to receive $750,000, the plaintiff was to receive $100,000 and the third defendants were to receive $50,000 each. Each residuary beneficiary was then to receive $79,906.25. That would mean that so far as the plaintiff was concerned he was to receive just on $180,000 from a total estate of just over $1,500,000.
(A number of points should be made about these figures. Although there is a difference between the value of the estate as at the time of death and as at the date of the hearing the difference has a negligible effect on the entitlement of the plaintiff. Further, the plaintiff disavowed any intention to disturb the specific bequests payable to the former fourth defendant and the charities who were respectively the fifth, sixth and seventh defendants in the proceedings. The plaintiff's claim would therefore have affected only the entitlement of Janice Rendell, the third defendants and the eighth defendant.)
There was no dispute between the parties as to the applicable law in relation to this application. Section 6(1) of the Act directs that a court may make such provision as it thinks fit where adequate provision has not been made from the deceased's estate for the proper maintenance, support, education or advancement in life of the claimant. The court undertakes a two‑stage process in exercising discretion conferred upon it by the Act. This process was explained by Malcolm CJ in Bondelmonte v Blanckensee [1989] WAR 305. His Honour's formulation of principle has subsequently been approved by the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201, 208 and Vigolo v Bostin [2005] HCA 11 [5] (Gleeson CJ). The question as to the jurisdiction to make an order is to be determined at the date of the death of the deceased. This jurisdictional question requires consideration of the applicant's financial position, the size and nature of the testator's estate, the totality of the relationship between the applicant and the testator and the relationship between the testator and other persons who have legitimate claims upon his bounty.
If the jurisdictional question is satisfied then in exercising its discretion the court takes into account developments as they exist at the time of making the order. The court should place itself in the position of wise and just testator rather than a fond and foolish person. It must act as a just but not a loving father or husband towards his wife and children. The wise and just testator must fulfil the moral duty that he owes to his wife and children aware of all the relevant circumstances at the moment of his death.
The evidence in support of the application is found in the affidavit of the plaintiff to which I have already referred. The picture that emerges is of an unhappy and abusive childhood. He was born on 3 January 1943. His father worked as a labourer and the family lived in Gresham Street, Victoria Park. The plaintiff says his parents' marriage was unhappy and both parents treated him appallingly. It is not necessary for me to go into the details. It is sufficient if I say I accept the plaintiff's evidence on this issue and accept that his treatment has left him emotionally scarred.
The plaintiff's parents separated in or about 1955 and after initially staying for a few days with his father custody of the plaintiff was awarded to the deceased. The deceased then placed the plaintiff in Clontarf Orphanage. The plaintiff was very unhappy at the orphanage. He ran away on a number of occasions and eventually was moved to the Tardun Boys Orphanage near Mullewa. Subsequently he moved to the Christian Brothers' Boys Orphanage at Bindoon. He says and I accept his experience at these various institutions was uniformly negative. He was very unhappy. It is clear from the evidence that his experience has scarred him for life.
At around age 14 the plaintiff returned to live with his father. This arrangement proved unsatisfactory and he then went to live with an adoptive family. He stayed there for three and half years. He then moved back with his father when he was 19 and remained living with his father until he was about 22.
It seems clear that the plaintiff has remained in fairly constant employment. He qualified as a mechanic and although he has not worked in that trade for some time he has had other employment. For some 10 years he ran his own cleaning business. In 1989 he obtained employment as a truck driver at Canning City Council. He continued to operate his cleaning business on a part‑time basis until 2006. He has now retired.
The plaintiff did maintain some sort of relationship with his father. He says that up until the late 1980s he used to see him on average about once a month. Thereafter he saw him only once or twice a year. The plaintiff's father died in 1995. The terms of his father's will were such that his father's house went to Janice Rendell. Each of Janice Rendell's children received $20,000 under the will and $20,000 was left to the plaintiff. The plaintiff says he was informed by his sister that she received around $100,000 from the sale of the house. That evidence is not disputed.
It is clear that the plaintiff in no sense had a relationship with the deceased. In fact he went out of his way to avoid coming into contact with her. In cross‑examination he made no secret of this fact. He clearly bears a deep resentment towards the deceased for the treatment he received during his childhood. He clearly does not accept the deceased at any time made any attempt to form a reasonable relationship with him.
The evidence as to the financial circumstances of the plaintiff are found in pars 50 ‑ 54 of his affidavit. Although that affidavit was sworn some time after the death of the deceased it is reasonable to assume the position had not altered significantly between the date of death of the deceased and the date the plaintiff swore the affidavit. At the time the plaintiff was earning between $40,000 and $45,000 year in his employment. He had assets of $375,000. His main asset is his residential property in Kalamunda. He had certain liabilities including a mortgage giving a net worth of $283,000. He says his expenses were $270 per week on the mortgage, $100 per week on hire purchase for his car, and his normal living expenses. He says his home is 37 years old and was very basic. He says it requires repairs which will cost approximately $100,000. He had superannuation of around $100,000. That is the extent of his evidence.
It has to be said this evidence is very thin indeed. For instance, although it is said that repairs to the house might cost $100,000 there is no evidence of what these repairs might be, how urgent it is that they be undertaken, and what effect they may have on the plaintiff's quality of life. Nothing is said about the plaintiff's intentions for the future. There is simply no evidence as to the plaintiff's needs. I will come back to this point later in these reasons.
The evidence of Janice Rendell is found in her affidavit sworn 5 November 2009. She says she is 59 years of age and suffers from an anxiety disorder for which she takes medication. Otherwise she is in good health. She receives a widow's pension from Centrelink. She is not currently employed and does not anticipate being employed in the future. She is divorced. She married in May 1976 and divorced in November 1995.
From the details of her childhood and it is clear that she too had an unhappy and abusive childhood. Her mother placed her in St Joseph's Orphanage and although she did see her mother from time to time it is clear their relationship was not close. It was after she married that her relationship with her mother began to develop. The evidence does not suggest the two were ever close but they did see one another on a regular basis and the deceased took an interest in Mrs Rendell's children. It is also clear that as her mother aged and became more dependent Mrs Rendell looked after her and assisted in whatever way she could. The evidence suggests that in all respects Mrs Rendell was a caring and considerate daughter who made a positive contribution to the deceased's wellbeing.
Mrs Rendell's means are modest. She estimates her assets at $450,000 and of that amount $400,000 is attributed to her residence. She has minimal cash and no superannuation. She says that with the proceeds of her mother's estate she intends to buy a new car, renovate her house, and assist her children and grandchildren with their education, health and housing expenses. She details the renovations she would undertake to her house. She estimates that these will cost in the region of $100,000. She intends to invest the remainder of her legacy with a view to producing an income.
Each of the third defendants has sworn an affidavit in opposition to the application. Each details their relationship with the deceased. In each case the evidence suggests a close and loving relationship with their grandmother. They assisted her with simple household tasks such as washing cars and gardening. She took an interest in their life and particularly in their achievements. Whatever the deceased's limitations as a mother it appears she did her best to be a good grandmother to her daughter's children.
Neither of the third defendants are particularly well placed. Each owns their own home and each has a mortgage. Each in is employment and is not without prospects, but neither could be said to be comfortably placed.
Before dealing with the specifics of this case I should mention the decision at first instance of her Honour Mc Lure J (as she then was) in Vigolo v Bostin [2001] WASC 335. That was a case where the claimant, the son of the deceased, was relatively well off and certainly did not need provision from the deceased's estate to maintain his lifestyle. Her Honour said:
The use of the word 'need' is unfortunate because it carries the connotation that the purpose of the section is to provide a minimum financial safety net. That is clearly not so, as an examination of the facts of Bosch pointedly reveals. An illuminating discussion of the varying approaches taken by different courts in different times to what may amount to 'need' is contained in Bryson J's reasons in Gorton v Parks. On any view it is relative and goes beyond the bare necessities of life. Just where it stops in terms of a ceiling is unclear. It is in this context that the authorities relating to provision for adult claimants are to be understood. In this jurisdiction (unlike Victoria) an adult does not have to establish 'special' need … Further, 'advancement' is a word of wide import and no age limitation is to be implied when considering what is proper provision for a person's advancement in life … .
However, it is the case that the focus must be on whether the claimant has adequate provision for his proper maintenance, support, education or advancement in life, taking into account reasonably foreseeable contingencies. The claimant's conduct prior to the testator's death may be relevant to that question, in particular in relation to what is 'proper'. Further, in many cases where prior deserving conduct is relevant it will have what most would characterise as a moral dimension which may be described as a moral claim giving rise to a correlative moral duty on the testator. I do not understand the majority in Singer v Berghouse to be saying that a moral claim or a moral duty of this nature is inevitably an irrelevant consideration in the value judgment process. However, whether or not it is relevant in a particular case is to be determined by reference to the statutory test [127] ‑ [128].
In this case I am satisfied that the plaintiff has not made out his claim. As I have indicated the plaintiff has not established what his needs were at the date of the death of the deceased with the effect there could be no finding the provision made by the deceased in her will was not adequate. Insofar as there is any evidence on this point I am satisfied the deceased did make adequate provision for the plaintiff's needs. That conclusion takes into account the size and nature of the testator's estate. The estate by modern standards is not large and the plaintiff is not left without provision.
Clearly the totality of the relationship between the plaintiff and the testator was such that no duty to make further provision arose. The plaintiff to his credit did not attempt to disguise the nature of the relationship with the deceased. The relationship was poor and that was largely because he refused the deceased's overtures which may have led to the relationship being improved. On the other hand, the other beneficiaries of the estate did have a close relationship with the deceased and it is not unreasonable she should have provided for them as she did in her will.
There is one further point of which I should make mention. That relates to cl 5 of the deceased's will. It is in the following terms:
I declare that I have made less provision out of my estate for my said son David Max Katich than for my said daughter Janice Margaret Rendell, by reason of the fact that, my said son has not visited me in some thirty years nor has he invited me to his home. Further he has rarely contacted me during this period, despite my sending him regular birthday and Christmas cards every year. Consequently I direct that he shall not receive a penny more than this will shall allow and I believe that the provision made by him [sic] out of my estate is more generous in the circumstances and is made in good conscience by me.
In determining this matter I have not had regard to that clause in the deceased's will. There may be some cases where the intention of the deceased whether made manifest in the will or otherwise can be relevant to the outcome of an application, but there is nothing in the Act which requires the court in determining an application to take into account the intentions of the deceased as expressed in the will or otherwise. In this case, in my view, there is no warrant to take into account cl 5 of the will and I have not done so.
The plaintiff's claim will be dismissed. I will hear the parties as to costs.