Kennard v Sheehan - [2010] NSWSC 882

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CITATION: Kennard v Sheehan [2010] NSWSC 882

HEARING DATE(S): 04/08/2010

JUDGMENT DATE :
9 August 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 9 August 2010

DECISION: See paragraph 64

CATCHWORDS: Family Provision. Application by son who was left a small legacy. Consideration of relationship between parties and other beneficiaries. - Provision increased.

PARTIES: Trace Robert Kennard v Sandra Ruth Sheehan

FILE NUMBER(S): SC 2009/00290296

COUNSEL: M Sneddon & C Alexander for plaintiff
Mrs J Hill for defendant

SOLICITORS: Bartier Perry for plaintiff
Ritchie & Associates for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 9 AUGUST 2010

2009/290296 TRACE ROBERT KENNARD v SANDRA RUTH SHEEHAN

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Jill Cheryl Kennard who died on 8 October 2008 aged 59 years. The deceased was survived by her only child, the plaintiff.

Last will of the deceased

2 The last will of the deceased was made on 13 June 2004 and she appointed her two sisters as executors. In her will she made different bequests in respect of the two major assets, namely, her home and her superannuation. The relevant clauses in the will are:

“3. I give all my superannuation entitlements, money in savings and bank accounts, term deposits and managed funds to my Trustee upon trust to distribute as follows:

(a) 15% to Trace Robert Kennard.

(b) 10% to Sandra Ruth Sheehan.

(c) 10% to Robert Shane Russell.

(d) 10% to Sharon Lee Wilkinson.

(e) 10% to Damien Laurence Cullen.

(f) 10% to Katherine Dawn Cullen.

(g) 10% to Joshua Darryl Schofield upon the attainment of twenty- five (25) years of age.

(i) 10% to Ronald James Kennard.

(j) 5% to Janice Newham.

In the event the preceding trust of this my will fail, it shall form part of my residuary estate.

4. I give my real estate property at +3 Pyramid Avenue,+ Padstow to my Trustee upon trust for the proceeds of sale to be distributed in the following shares;

(a) 10% to see University of Western Sydney Foundation for the ‘Evelyn Cullen Nursing Prize.’

(b) 22% to Katherine Dawn Cullen.

(c) 19% to Damien Laurence Cullen.

(e) 42% to Sandra Ruth Sheehan.

In the event the preceding trust of this my will fail, it shall form part of my residuary estate.

5. I direct that funeral testamentary and other expenses of my estate are to be paid out of the proceeds of my superannuation entitlements, savings, term deposits and managed funds prior to distribution in accordance with clause 3 of this will.

6. I give the residue of my real and personal estate of whatsoever kind and nature and whatsoever situate to such of Sandra Ruth Sheehan and Sharon Lee Wilkinson as survives me if more than one in equal shares and as joint tenants.”

3 In order to understand the relationship between the deceased and the beneficiaries the following should be noted:

Damien Cullen, Deanne Schofield and Katherine Cullen are Evelyn Cullen’s children and the deceased's de facto stepchildren.

Isabelle Cullen, Chelsea Cullen, Joshua Schofield, Luke Schofield, Ryan Schofield and Erika Schofield are Evelyn’s grandchildren and the deceased's step grandchildren.

4 The defendants have helpfully prepared a family tree, which I will attach to this judgment as it provides an understanding of the relationships.

Assets in the estate

5 The deceased’s home at Padstow has been sold and, after discharging the mortgage, the sum of $405,844.39 is held in trust.

6 The superannuation of $138,616.85 has been realised and, after deductions and expenses in accordance with clause 5 of the will, there remains some $116,214.32, the residue of which passes under clause 6 of the will and is in the sum of $12,180.97.

7 The plaintiff’s costs are assessed at $55,000, and those of the defendant are a like amount.

8 If only the defendant’s costs are paid from the estate, they will fall on the superannuation under clause 5 and the plaintiff’s share in the estate will amount to $9182. If all the amounts of the costs are paid from the estate, the plaintiff’s share will amount to $932.

Family History

9 The late Jill Cheryl Kennard was born in May 1949. She had a somewhat difficult upbringing as her mother was exposed to violence. As she described it, her mother was used as a punching bag, even when she was pregnant.

10 The deceased, when she was 16 years of age, gave birth to her son, the plaintiff Trace Robert Kennard, in March 1966. The plaintiff has never known who his father was.

11 After his birth, the upbringing of Trace was helped by assistance both from the plaintiff's mother and her aunt.

12 In 1972 the deceased, when the plaintiff was about six years old, decided she wanted to travel overseas without him, which she did. She left her son behind. He was looked after by various relatives while she was away.

13 On that trip, when she was in England, the deceased was driving a car with three of her nursing friends. A front tyre of the car blew out and there was an accident when she lost control as a result of the blowing of the tyre. Kerry, a very close friend of the deceased, died in the accident. This accident, it is apparent from the notes left behind, substantially affected the deceased and it haunted her for the rest of her life.

14 In 1973 the deceased return to Australia from England. At the time the plaintiff was around seven years old and living with his great grandmother.

15 In due course he lived with his mother at Cronulla. His mother met Evelyn Cullen in 1977 and commenced a relationship with her in 1978. The plaintiff and his mother moved in with Evelyn and her three daughters, who was then aged between nine and two years. The plaintiff was then aged about 12 years. It was the first time he had to live in a household of that size.

16 In 1980 there was an incident, to which I will return later, when the plaintiff left home. After spending a night on the Town Hall Station, he went to live with his grandmother and never returned to live with his mother.

17 He became engaged in June 1991 and married in 1992. Thereafter he had three children.

18 In 1985 the deceased and her partner, Evelyn, purchased the Padstow property with the assistance of a mortgage. Both were working at the time in well-paid employment. Evelyn Cullen died unexpectedly in 2003.

19 The house was transferred to the deceased on Evelyn's death as the det facto partner of Evelyn. The deceased also received Evelyn's superannuation of approximately $168,000. From that superannuation she paid out a mortgage of $95,500. Evelyn's children only received a small amount of approximately $15,000 each . Evelyn's children accepted the situation without dispute.

20 The deceased made her will on 30 June 2004. It is apparent she intended to benefit Evelyn's children, who had been part of her family for many years.

21 These proceedings were commenced within time on 28 August 2009.

Eligibility

22 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

Ellis v Leeder

23 The plaintiff is 43 years of age, married with three children aged seven, 10 and 12 years. He recently lost his job which prompted him to sell one of his investment properties. He has regained employment and works 71 hours a week for a wage of $25 per hour. This is $1775 per week. He works long hours and only has a few days off after three weeks work. His wife earns a negligible amount from typing. They live in rented accommodation. Their weekly expenses total a sum of $1674.

24 They have sold an unencumbered investment property for $250,000 and have an investment unit at Minto worth between $250,000 and $275,000 which is subject to a mortgage of $173,231. They have to old cars, their home contents, and they have superannuation in the amount of $104,300.

25 A substantial amount of evidence has been led in respect to the relationship between the plaintiff and his mother. The plaintiff gave evidence of what he said was sexual abuse, and also physical abuse by his mother. The sexual abuse, he said, occurred when he was six years of age and consisted of his mother sharing a bed with him. He described the abuse as her being naked and touching him with her body and other like matters. This conduct did not continue when she commenced her relationship with her partner Evelyn.

26 He also gave evidence of when he was beaten by his mother and Evelyn. This happened on two occasions, according to his evidence. On the second occasion he gave evidence of his bruises being observed by a teacher at school.

27 The events which led to him leaving was, according to him, another beating he received. He told a teacher about this and reported that fact to his mother which, according to him, led to some more violence. The next day Evelyn took an overdose and he was accused of being the cause of her distress. He then left the household.

28 Strangely, none of these events were reported on by the other children living in the house and, of course, neither Evelyn nor the deceased can give their versions.

29 Unfortunately the deceased had been through some difficulties of her own by this stage. As I have mentioned, in her childhood she had seen her mother bashed by an aggressive husband.

30 She also chronicles some of the problems in a eulogy which she wrote for her own funeral. She described one of these being the car accident in these terms:

“I have never talked to any of you about this except mum. When I was in England I had a terrible car accident on the motorway outside London. There were four of us in the car, Gail, Kerry, Sue and myself. I met the three of them on the ship to England. They were all registered nurses from S A. They were on a working holiday like me, we were all 23 years old.

We used to hire a car every weekend and drive to Wales, Scotland etc. We would take turns in driving. I was driving when the accident happened. The front tyre just blew. I was doing 90 mph on the motorway and I lost control of the car. Kerry died in the accident. It haunted me every day and I carried that guilt with me to my grave. The accident changed me for ever. When I returned to Australia, I couldn't talk about it.

I started to drink very heavily and drive really fast. I was always in a hurry. I didn't deliberately drive fast to have an accident. But I didn't care if I had an accident and died. I believe I should have died in England because I was driving at the time. I was drowning in my guilt. I found I had to keep myself busy working as much as I could, that's why I had three jobs at once (only for six months) so I didn't have time to think.

31 I do accept that there were occasions when the plaintiff was hit by the deceased and Evelyn but I hesitate to accept the causes and attributed blame for those events. It is not necessary to do so because it is apparent from the evidence of the plaintiff's first fiancee, Megan Elliott, things resolved between 1984 and 1986 when the plaintiff and his fiancee frequently visited the deceased and stayed over at her place for the night.

32 In the evidence of the plaintiff's second fiancee, and now his wife, we see in 1991 the deceased came to their engagement party but did not come to the wedding in 1992 due to a dispute about a guest at the wedding. In 1993 there were three visits, in 1994 there was one.

33 The plaintiff describes the fall off this relationship in these terms:

“(h) My mother and I stayed in contact until I was 30. She attended my eldest daughters baptism in 1997.

(i) As an adult, I wanted to talk with my mother about our past but she didn't want to talk and her relationship with me soured over time. Our relationship didn't improve and I realised at the age of 30 that we would never have a normal mother - child relationship.

(j) My mother wanted to have a normal relationship with my children, but I could not accept this when she did not want to have a normal relationship with me. I was concerned that she would try to buy the affection of my children with lavish presents and that she would attempt to undermine the authority of my wife and I over our children by criticising us, and our Christian faith, and our friends.

34 The correspondence at that time in 1997 is very revealing and illustrates the deep rift between mother and son. In 1997 the plaintiff wrote in these terms to the deceased:

“Dear Jill.

This is a letter to thank you for the stuff for Ellie Jayne, it was nice thought to buy those bits and pieces for our daughter.

And both of us wish to lay some firmer ground rules for your relationship with Ellie. It seems unavoidable that you will have some contact and so we want to spell out the conditions very plainly. We promise, if you do not comply with the wishes, there will be no more contact at all (this is how strongly we feel). This is not an idle threat but a promise.

Firstly: You may give or send Ellie a present on her birthday and Christmas and it is to be no more than $25 -- I will not be in competition for my daughter with you, not now nor in the future.

Secondly: No prolonged or unsupervised sessions with Ellie at any time.

Thirdly: no running down of our faith or Barney or us in front of her.

Fourthly: Leave all moral and ethical development to us.

Please know that this will be the basis of any relationship you have with our daughter. We are both sorry that it is this way but we think this is for the best. I feel as well that you can be called Grandma and Evelyn, Mrs Cullen. It is fitting and right.

One last thing, you can not skip over the affections of your own and love the next generation and expect it to be ‘okey-dokey’.

35 Plainly, if he could have avoided it, the plaintiff would have nothing to do with his mother.

36 His mother acknowledged the correspondence and said she would not contact him. However, there was in fact further contact with them, not all of which is seen in evidence. However, that further contact resulted in the following letter, which was written by the deceased to the plaintiff on 6 October 1998.

“Dear Trace,

I received your letter on 22 September 1998. I went to my solicitor Deborah Vardy of Marsden's Attorneys today, who advised me to write to you regarding your correspondence.

Firstly I have a heart problem of which you are aware of. I have been hospitalised twice since my open heart surgery, not that you care. I do not want any more correspondence from you, not now -- not ever as it detrimental to my health.

Secondly I love my mother dearly and we are speaking. I will not have you put any pressure on her, as she has a bad heart. I will not have you treat my mother the way you have treated me over the years.

If you still continue to write to me, my solicitor suggested I fax your superior your letters, I will also fax my replies, as I have kept copies of everything.

Hoping this is an end to any correspondence from you.

Sincerely yours.

Ms J C Kennard.”

37 In 2002 there was an invitation from the deceased to Trace and his family to go and visit before Christmas. This was politely declined.

38 Plainly there was a serious break in the relationship in 1997 which continued until the deceased's death. I think it was as a result of fault on both sides. The deceased was a volatile woman, and the plaintiff was acutely protective of his family and just did not want to bother with his mother.

39 In Foley v Ellis [2008] NSWCA 288 the Court of Appeal referred to this kind of problem in these terms:

“101. The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant. In Palmer v Dolman Ipp JA , after a review of the cases, observed (at [110]) that:

‘…the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’

See also Wheatley v Wheatley [2006] NSWCA 262 at [22] - [23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse .

Family Provision Act

Wentworth v Wentworth, estate of G M Wentworth

Wheatley v Wheatley

wise and just’

Bosch v perpetual Trustee Co Ltd

40 The plaintiff's conduct in my opinion is not such as to disentitle the plaintiff from relief but it reduces the extent of his moral claim on her bounty.

41 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case it is the other beneficiaries.

University of Western Sydney

42 This bequest by percentage of the real estate was to the University which had a special place in the life of the deceased. After the death of her partner, Evelyn, she donated $10,000 to create a prize for nursing students. There was an annual prize named in memory of Evelyn Cullen. Correspondence, which is in evidence, demonstrates a substantial commitment of the deceased to this benefaction. It also discloses her interest in it, and attendance at ceremonies where prizes were awarded. Plainly it was something dear to the deceased’s heart as it represented her doing something for the benefit of what was her only soul mate in life.

Katherine Cullen

43 Katherine was one of Evelyn's daughters. Katherine is 33 years of age and in a de facto relationship, with two children aged five and three. She and her partner have a home worth $400,000 with a mortgage of $89,197. She has superannuation of $35,249 and a few other assets. She works part-time and is otherwise supported by her partner.

44 She had a very close relationship with the deceased and she treated the deceased as a parent. The deceased played a substantial role in her life in this regard. They had a very good relationship. Katherine has not contributed to the assets in the estate and she takes 22% of the realty and 10% of what is left in the superannuation.

Damien Laurence Cullen

45 Damien is one of Evelyn's children. Damien is 40 years of age, single, and provides child support for his two children aged five and three years. His only major asset is his superannuation of $70,000 and he works as a production operator. He also had a good relationship with the deceased. However, he was older when the relationship started. He made no contribution to the estate and takes 19% of the home.

Deanne Margaret Schofield

46 Deanne was also a child of Jill's partner, Evelyn. She is 38 years of age, married with two children aged 10 and seven years. Her husband is an accounts manager. They have a home worth $380,000 with a mortgage of $171,500. They have an investment unit worth $420,000 with a mortgage of $485,000. She has superannuation of $143,158, cars and other jointly owned property. She is employed herself as an IT manager earning $101,507 per annum.

47 She likewise had a good relationship and the deceased would often help her babysitting with the children and matters of that nature. She made no contribution to the estate and she takes 7% of the house and her sons each receive 10% of the superannuation.

Ronald Kennard

48 Ronald is a brother of the deceased and is aged 59 years. He is single with no dependents and lives with his mother on a disability support pension. He has no assets of substance and he spent five years with the deceased. They had a good relationship.

49 The deceased helped him from time to time, taking him to medical appointments as Ronald has always had problems. He takes 10% of the superannuation.

Robert Russell

50 Robert is a brother of the deceased and is 45 years of age, divorced, and his children are aged 18 and 19 years. One of them is out of a job. He is an earth works foreman and he has a house worth $565,000 with a mortgage of $203,836. He has other minor assets and superannuation of $500,000. He also had a good relationship with the deceased and takes up 10% of the superannuation.

51 There is no information on Janice Newham, a cousin of the deceased and, accordingly, the Court can conclude she does not wish either her financial affairs or her circumstances to be placed before the court. Her interest was only in the superannuation and this is of no great moment.

Sandra Sheehan

52 Sandra is a sister of the deceased, is 45 years of age, married with two children aged 16 and 12 years. She and her husband have a home, two investment properties and other assets worth $1,186,246 and superannuation of $200,000. They have liabilities of $239,322. She is employed as a school administration officer in the public education system.

53 She and her husband, unlike other beneficiaries, are in a good and solid financial situation.

54 She also had a good relationship with the deceased, who was part of her family's life. She discussed the provisions the deceased was going to make for her and indicated she had no need for it. They agreed she would distribute Sandra’s 42% of the house with her nieces and nephews.

55 She has executed a statutory declaration in these terms:

^th

To the three children of Trace Robert Leslie Kennard, the sum of $50 per year until they have attained the age of 25 years.

The remainder of the proceeds in equal shares to the nieces and nephews of Jill Cheryl Kennard

As per Jill Cheryl Kennard's express instructions all money to be left to minors will be held in trust until they reach the age of 25 years."

56 It is plain from this that the deceased accepted the plaintiff’s demands that she spend no more than $50 a year on presents for each of his children.

Discussion

57 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. He says he would like to address the following matters:

B. Discharge the mortgage on the Minto unit and increase his capital base.

C. Two new cars, including a people mover $59,490

D. Purchase a home in the local area $480,000

E. Have a holiday at a cost of $7500.

58 He presently has realisable assets of about $345,000 and thus could realise them to put towards the purchase of a home with a modest mortgage. He quantifies his claim as being half of Sandra's 42% share, which is a sum of $85,227.

59 The deceased carefully thought through the plan for her will. About a half of her assets were to go to her long time partner's children, which was appropriate given the source of such assets. She did not want to give the plaintiff anything but, on the advice from a lawyer, left him 15% of the superannuation.

60 The deceased allowed her hurt feelings to overcome her responsibility to him. He has a young family which will need help with education over the coming years. He is 43 years of age and has a good working life ahead of him. Fortunately at this stage he has superannuation of $104,340 which is a good start. Over the next 22 years it will no doubt increase.

61 I think the plaintiff has been left without adequate and proper provision for his maintenance, education and advancement in life as he needs funds in the medium to short-term to provide for his family.

62 I propose to give him, in lieu of the provision in the will (which can pass to the other beneficiaries of the superannuation), a legacy of $75,000. The burden of this should fall on Sandra’s 42% share of the home and that provision can be in lieu of the provision for his children in a private trust set up by Sandra.

63 Unless there are any submissions, I will order the plaintiffs costs on the ordinary basis and the defendants on an indemnity basis be paid out of the estate and that they be born as provided for in clause 5 of the will.

64 The orders which I propose to make in this matter are:

1. In lieu of the provisions in clause 3 of the will in favour of the plaintiff, he will receive a legacy of $75,000.

2. The plaintiff’s provision in clause 3 of the will is to pass rateably to the other beneficiaries under clause 5.

3. The burden of the provision is to be borne by the share of Sandra Sheehan in clause 4 of the will and that part of the private trust created by Sandra Sheehan in favour of the plaintiff's children.

4. The plaintiff’s costs on an ordinary basis and the defendant’s costs on an indemnity basis be paid out of the estate of the deceased and be borne by the property referred to in clause 5 of the deceased will.

Probate and Administration Act

65 The parties have indicated they wish to address on the question of where the burden of the provision of costs will occur. Accordingly, I will make the following orders at this stage:

6. I direct the defendant to lodge submissions with my Associate within 14 days and the plaintiff to reply within seven days thereafter.

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Citations

Kennard v Sheehan [2010] NSWSC 882

Most Recent Citation

Evans v Evans [2025] NSWSC 1263

Cases Citing This Decision

1

Evans v Evans [2025] NSWSC 1263

Cases Cited

3

Statutory Material Cited

0

Singer v Berghouse [1994] HCA 40

Foley v Ellis [2008] NSWCA 288

CITATION:	Kennard v Sheehan [2010] NSWSC 882
HEARING DATE(S):	04/08/2010
JUDGMENT DATE :	9 August 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	9 August 2010
DECISION:	See paragraph 64
CATCHWORDS:	Family Provision. Application by son who was left a small legacy. Consideration of relationship between parties and other beneficiaries. - Provision increased.
PARTIES:	Trace Robert Kennard v Sandra Ruth Sheehan
FILE NUMBER(S):	SC 2009/00290296
COUNSEL:	M Sneddon & C Alexander for plaintiff Mrs J Hill for defendant
SOLICITORS:	Bartier Perry for plaintiff Ritchie & Associates for defendant