Kent-Biggs v ANZ Executors and Trustee Company Limited

[1999] NSWSC 730

CITATION:	Kent-Biggs v ANZ Executors & Trustee Company Limited [1999] NSWSC 730
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4826/97
HEARING DATE(S):	20 July 1999
JUDGMENT DATE:	20 July 1999
PARTIES :	Joanna Mary Kent-Biggs (P) ANZ Executors & Trustee Company Limited (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. G. McVay (P) Mr. D. Davies S.C. (D)
SOLICITORS:	Farmer Campbell Edmunds (P) Harris & Company (D)
CATCHWORDS:
ACTS CITED:	Family Provision Act 1982
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 20 July 1999

4826/97 JOANNA MARY BRIDGET KENT-BIGGS -v- ANZ EXECUTORS AND TRUSTEE CO LIMITED - ESTATE OF DONNA KENT-BIGGS

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 20 November 1997 the plaintiff, Joanna Mary Bridget Kent-Biggs, claims an order for provision for her maintenance and advancement in life out of the estate of the late Donna Kent-Biggs (to whom I shall refer as "the deceased"). 2 At the commencement of the hearing of this matter I stated, and had it recorded, that the residuary beneficiary named in the will of the deceased, to the details of which will I shall shortly advert, is the University of Sydney; that I am a graduate of the University of Sydney and a member of a number of organisations and entities associated with the University. Also, that my late mother was a graduate in medicine of the University of Sydney where she was taught by Professor Sir Thomas Anderson Stuart, the first Dean of the Faculty of Medicine, who was the grandfather of the deceased. Those facts did not cause any difficulty for either party to my hearing this matter. 3 The deceased died on 19 or 20 April 1997. She left a will dated 20 March 1997, probate whereof was, on 16 July 1997, granted to ANZ Executors and Trustee Co Limited, the executor named in such will (who is the defendant to the present proceedings). 4 The assets of the estate of the deceased consisted of a shareholding in Macleay Regis Pty Limited which entitled the deceased to occupancy of an apartment in the building known as Macleay Regis, being unit 608/12 Macleay Street, Potts Point. That shareholding was valued at $480,000 at the date of the death of the deceased. 5 In addition, the deceased left furniture and personal effects valued at a little over $22,000, and various other investments and moneys held in various accounts, bringing the total value of the assets in her estate at the time of her death to $1,285,508. The deceased had liabilities of $2842, leaving a net value of the estate as at the date of death in an amount of $1,282,665. 6 The assets of the estate have been realised. The estate presently consists of assets totalling $1,270,226. There is a liability for commission to the defendant in an amount of about $30,000. Further, it will be appreciated that the costs of the defendant will, in any event, be payable out of the estate of the deceased, and, in the event that she be successful in the present proceedings, it is likely that the costs of the plaintiff also will be payable out of that estate. 7 The solicitors for the respective parties have, in accordance with the prescribed practice, filed affidavits setting forth estimates of the costs of their respective clients. For the plaintiff the estimate of the costs of the proceedings is about $18,500, whilst the estimate of the costs of the defendant is about $20,800. 8 The will of the deceased made a number of gifts of specific chattels to various friends and to the University of Sydney. The residue of the estate was, by clause 4.2 of the will, given as follows:

(a) To the University of Sydney to be initially applied for the charitable purposes of the restoration and repair in progress at my death of the building known as the Anderson Stuart building, and to apply any surplus funds and the income thereon for future maintenance of such building.

(b) If this gift cannot take effect I direct my trustee to pay it to the charitable organisation in Australia which my trustee considers most nearly fulfils the objects I intend to benefit.

9    The evidence filed on behalf of the defendant and, in particular, that of Professor Jonathan Stone, the Challis Professor of Anatomy in the Faculty of Medicine at the University of Sydney, reveals that there is no suggestion that the gift to the University of Sydney for the purpose specified in subclause (a) of clause 4.2, which I have just set forth, cannot take effect. 10    The chattels which are the subject of specific gifts have been transferred to the various beneficiaries named by the deceased in clause 2 of her will. There has not been any distribution of the residue of the estate. 11    At the time of her death the deceased was a widow. She appears to have had no children, and certainly no children were born of her marriage. She was the grand-daughter of the late Professor Sir Thomas Anderson Stuart, who was the first Dean of the Faculty of Medicine in the University of Sydney and after whom the Anderson Stuart Building, the object of the testamentary beneficence of the deceased, was named. The age of the deceased has not been disclosed in the evidence. 12    The plaintiff was born on 9 December 1955. She is presently forty-three years of age. When she was a few days old she was taken home by the late David Kent-Biggs and his wife, Joy Cosmo Kent-Biggs, who formalised their adoption of the plaintiff in about March 1956. They had no other children. The plaintiff was treated by them, as she was in law, as their child. 13    In 1957, when the plaintiff was still an infant, her father purchased a coffee plantation in New Guinea, outside a small town called Kainantu in the Eastern Highlands, about 120 miles north west of Lae. That was the family home of the plaintiff and her parents. 14    In 1966, when the plaintiff was aged about ten, she came to Australia to attend a boarding school in Toowoomba in Queensland. From then until she finished her schooling it was the practice of the plaintiff to spend all of each school holidays --- being holidays of about three weeks and four weeks respectively during the year in about May and late August and of about two months at the end of the year --- in New Guinea on the plantation with her parents. 15    The plaintiff's mother died on 9 September 1968 when the plaintiff was aged only twelve. In July of the following year, 1969, the plaintiff's father married the deceased. Apparently the plaintiff had met the deceased only once before the marriage of her father and the deceased, that being an occasion when the plaintiff was a very small child. The deceased was an old friend of at least the plaintiff's mother. Both the plaintiff's mother and the deceased had been members of the nursing profession and the plaintiff's father had been acquainted with the deceased before he had met the plaintiff's mother. 16    After the marriage of her father to the deceased the plaintiff still continued at school in Toowoomba, returning from school to the coffee plantation in New Guinea. The plaintiff finished school at the end of 1972. At that time her father and the deceased had sold the coffee plantation and returned to Sydney. They moved into residence in the residential apartment of the deceased in Macleay Street, Potts Point; that appears to have been a one bedroom apartment. 17    From the time when her father and the deceased left New Guinea and the plaintiff finished school she did not reside with her father and the deceased. The plaintiff commenced training in the nursing profession in January 1973. She qualified as a nurse and has practised in that profession ever since so qualifying. She has, between 1980 and 1983, worked in the United Arab Emirates as a nurse. She is presently employed by the Western Sydney Area Health Service in a position as senior nursing administrator. 18    The plaintiff's father died in April 1978. The plaintiff did not receive any benefit from the estate of her father on his death. It would appear that the entirety of his estate passed to the deceased. Unfortunately, despite the efforts which have been made by the legal representatives of each party in the present proceedings, there has not been located any precise information concerning the existence or the provisions of any will of the plaintiff's father or concerning the details of any assets left by the plaintiff's father at the time of his death. 19    There is, however, some slight information of assistance in this regard, being the statement contained in paragraph (e) of a statutory declaration made by the deceased on 25 February 1988. In that paragraph the deceased said:

Ninety per cent of my gross estate comes from my own family, namely Anderson Stuart, my maiden name, from direct inheritance.

20 There is no evidence before the Court as to the assets of the deceased in February 1988, at the time when she made that statement. It will be appreciated that that was some nine years before her death. 21 In order to have the standing to bring the present proceedings the plaintiff must establish that she is an eligible person within the meaning of one or more of the four paragraphs of the definition of that phrase contained in section 6(1) of the Family Provision Act. Unless she can establish that she is such an eligible person the plaintiff does not have the standing to bring the present proceedings. 22    The plaintiff submits that she is an eligible person within paragraph (d) of the definition of that phrase. That definition is, relevantly, as follows:

A person

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

23    The plaintiff submits that for the period from the marriage of her father to the deceased in July 1969 until at least the end of 1972, when her father and the deceased departed New Guinea permanently to reside in Sydney, the plaintiff was a member of the same household of which the deceased was a member; and, further, that throughout that period the plaintiff was partly dependent upon the deceased. 24    The defendant disputes the status of the plaintiff as an eligible person. The defendant disputes that the plaintiff was a member of the same household as that of which the deceased was a member and disputes that the plaintiff was ever in any way dependent upon the deceased. 25    I have been taken to a number of authorities concerning the concept of membership of a household. Those authorities include the decision of the Court of Appeal in Ball v. Newey [1988] 13 NSWLR 489 at 492, in particular the judgment of Samuels JA. I have also been taken to the unreported decision of McLelland CJ in Eq in Monroe v. Lake (8 February 1991) in which his Honour referred to the decision of Gobbo J of the Supreme Court of Victoria in Kingsland v. McIndoe [1989] VR 273 and of Young J in Benney v. Jones (unreported, 13 February 1990), which went on appeal to the Court of Appeal, (1990) 23 NSWLR 559. 26 McLelland CJ in Eq referred to the concept of the membership of a household in the context of a degree of continuity and permanency of mutual living arrangements. In the case before his Honour that concept of continuity and permanency of mutual living arrangements was absent, since the plaintiff in that case, together with her mother, apparently was in the habit of spending each weekend with the testator, but of spending the rest of the week in another residence, with the plaintiff's maternal grandfather. 27 I have also been taken to the unreported decision of Young J in Nagatomi v. Hudson (18 September 1997) and to two unreported decisions of myself, being Murdoch v. Johnson (27 May 1996) and Joy v. Perpetual Trustee Co Limited (9 December 1998). 28    It is suggested on behalf of the defendant that the fact that for a period from mid-1969 until the end of 1972 the plaintiff spent a total of about thirteen weeks each year residing on the coffee plantation with her father and the deceased, did not result in the plaintiff, throughout that period, being a member of the same household as the deceased. 29    I do not consider that the fact that the plaintiff was attending school in Australia whilst her father and his new wife were residing in New Guinea deprived the plaintiff of membership of the only household of which she had ever been, or indeed could be, a member, being the household of which her father was a member. I do not consider that upon his marriage to the deceased the plaintiff's membership of the household of which her father was a member came to an end. Neither do I consider that upon that marriage the father became a member of two households. 30    From a purely practical point of view, at least during the period whilst the plaintiff was physically present upon the coffee plantation in New Guinea she was, in my conclusion, a member of the same household as that of which the deceased was a member. The fact that the coffee plantation included in its physical domestic arrangements a main homestead and what has been described by the plaintiff as a guest house, and that her father and the deceased occupied the principal homestead (which apparently had only one bedroom, being constructed in the architectural fashion common to such establishments in New Guinea at the time), and that the plaintiff slept in a physically and geographically separate structure about twenty metres away, did not, in my conclusion, somehow deprive the plaintiff of membership of the household. 31    I am satisfied that the living arrangements of the plaintiff, her father and the deceased upon the coffee plantation were such that not only was she a member of the same household as the deceased, during the periods whilst she was physically present in New Guinea, but that she still remained a member of that household during the period whilst she was attending boarding school at Toowoomba. 32    I have already recorded that the defendant submits that there was no degree of dependency of the plaintiff upon the deceased. In that regard the defendant submits that essentially the plaintiff's father was responsible for supporting the plaintiff, and that the plaintiff, during her teenage years, was dependent upon her father and that she was not in any way dependent upon the deceased. 33    I have, concerning the question of dependency, been taken to the decision of the Court of Appeal in Benney v. Jones (to which I have already referred) and in particular to the judgment of Priestley JA at 565 - 566 where his Honour quoted from the decision of Samuels JA in Ball v. Newey, a decision to which I have also earlier referred. 34 The concept of dependency is not limited to financial or economic dependency, although it would certainly appear that such financial or economic dependency is an essential part of that concept. The plaintiff in her oral evidence, supplemented the material set forth in her affidavit evidence concerning the extent of the financial and economic dependency which she asserted existed between herself and the deceased. 35 She gave evidence concerning shopping trips at the commencement and at the end of each of her school holidays, when, accompanied by the deceased, she would go to the town of Lae and items of clothing would there be purchased for her, which were paid for in cash by the deceased. She also referred to other shopping trips made somewhat more frequently, to a smaller town closer to the coffee plantation, where again purchases for her would be made by cash taken from the deceased's handbag. 36 It was submitted on behalf of the defendant that, whilst those payments might have been immediately made by the deceased, the ultimate source of those payments was the plaintiff's father and not the deceased herself. The defendant pointed to the evidence that whilst in New Guinea the deceased was not in paid employment, although she did some unpaid voluntary work of a nursing nature, and further that whilst she was in New Guinea she did not have any income. 37 That may well be so, but the evidence of the deceased herself in her statutory declaration is that the bulk of her assets were acquired by direct inheritance from her own family, the Anderson Stuarts. That assertion is borne out by the size of the estate of the deceased upon her death. 38 Not only do I conclude that there was a degree of financial dependency of the plaintiff upon the deceased concerning the purchase of the plaintiff's clothing during the New Guinea years, but I am satisfied that during that period also there was a considerable degree of emotional dependence of the plaintiff upon the deceased. 39 During the New Guinea years the relationship between the plaintiff and the deceased appears to have been a close and affectionate one. It has been described as being a daughter/mother relationship. Whether it went so far, I would hesitate to conclude. But it is certainly clear that there was no one else to fulfil the role of mother for the plaintiff during those New Guinea years. 40 Unfortunately, however, the relationship appears to have deteriorated after the plaintiff's father and the deceased returned to Australia, and especially after the death of the plaintiff's father in April 1978. At that time the plaintiff was aged twenty-three and she had qualified as a nurse. Nevertheless there still continued a relationship between the plaintiff and the deceased after that period, to the details of which I shall shortly refer. 41 I am satisfied, however, that there was a sufficient degree of dependency between the plaintiff and the deceased as would satisfy the requirement of paragraph (d) of section 6(1). Since I have already expressed my conclusion that the plaintiff and the deceased were, at least throughout the years from the marriage of the deceased to the plaintiff's father in 1969 until the end of 1972, members of the same household, I am satisfied that the plaintiff is an eligible person in relation to the deceased. 42 However, since she is an eligible person in relation to the deceased only by reason of paragraph (d) of the definition of that phrase, the Court is required by section 9(1) of the Act to determine whether, in its opinion, having regard to all the circumstances of the case, whether past or present, there are factors which warrant the making of the application, and the Court is obliged to refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors. 43 It is submitted on behalf of the plaintiff that the facts which warrant the making of the application include the following: The plaintiff was the step-daughter of the deceased. There existed between herself and the deceased a mother/daughter relationship. That relationship continued, even after the death of the plaintiff's father, as is disclosed by such matters as the fact that the deceased allowed the plaintiff to use her address for a number of years whilst the plaintiff was working in the Middle East, and it was necessary for the plaintiff to have a local address for her Australian nursing registration. 44 Further, the deceased operated the plaintiff's bank account during the years whilst the plaintiff was working overseas, and even, on at least one occasion, met from her own funds a slight overdrawing of the plaintiff's account. In addition the plaintiff's passport, which was issued on 24 December 1978, disclosed the deceased as the person to be notified in case of death or accident. 45 The plaintiff maintained a continuing contact with the deceased, although the nature of the relationship between the plaintiff and the deceased deteriorated in 1987. There was an estrangement for about four years and the plaintiff then contacted the deceased in 1991 concerning arrangements for a reunion of the family of the plaintiff's father, which was to take place in Queensland in that year. Both the plaintiff and the deceased attended that reunion and spoke, although, according to the plaintiff, the attitude of the deceased on that occasion was "very cool" towards her. The plaintiff did not, thereafter, have any face to face contact with the deceased and did not speak with her by telephone, although she said that she always continued to send to the deceased Christmas cards and that those cards contained her current address. 46 Other factors which the plaintiff submits warrant the making of the present application are that the deceased was the only family which the plaintiff had in Australia, apart from some cousins in Queensland. Apparently she had no kin on her mother's side, and her father's only brother lived overseas in Portugal. It was submitted that the plaintiff was bound emotionally to the deceased to a significant extent during the deceased's life time. 47 Another factor which the plaintiff relies upon as warranting the making of the present application is the fact that no provision was made for the plaintiff from the estate of her father and that her father's entire estate went to the deceased. I have already referred to the lack of evidence concerning the precise nature of that estate. It has been suggested that the statement in paragraph (e) of the statutory declaration of the deceased would indicate that about ten per cent of the gross estate of the deceased at the time of her death had come to her from the estate of the plaintiff's father. 48 I question whether that is a correct assumption. I have already referred to the fact that the statutory declaration was made some nine years before the death of the deceased. There is no evidence as to the size of the assets of the deceased at the time she made the statutory declaration or as to whether her assets increased by way of wise investment or as a result of an increase in, for example, the value of the Macleay Regis shares during the period between the making of the statutory declaration and her death. Nevertheless, it seems to me to be an appropriate inference that some part of the assets of this not inconsiderable estate had their source in the estate of the plaintiff's father. From that estate the plaintiff received no benefit. 49 I am satisfied that at least that last fact (that the plaintiff received no benefit from the estate of her father, which estate passed in its entirety to the deceased, who appears at that stage to have been a woman in very comfortable financial circumstances from inheritance from her own family), constitutes a factor warranting the making of the present application by the plaintiff. 50 Another such factor is the fact that the deceased, her step-mother, was, for practical purposes, the only family which the plaintiff had in Australia at the time. The fact that the relationship, apparently a close and affectionate one in New Guinea, deteriorated very significantly down the years, does not, of itself, preclude the relationship from being a factor which warrants the making of the present application. 51 It becomes necessary, therefore, for me to consider the substantive basis for the claim of the plaintiff. In that regard I should refer to the details of the plaintiff's present financial and material circumstances. Details of those circumstances were given originally by the plaintiff in her affidavit of 11 March 1998. Under cross-examination it appeared that those details were far from accurate. However, the following matters appear to constitute accurate information concerning those circumstances. 52 The plaintiff's present fortnightly income, after deduction of tax, is in a net amount of $1570, that is about $40,820 net a year. The plaintiff has no other income. She has assets consisting of household furniture, to which she ascribes a value of about $20,000; a computer worth about $2000; personal effects worth about $10,000; a Daewoo motor vehicle, a 1997 model, which she purchased with the benefit of a loan from the Endeavour Credit Union, and which now has a value of about $15,000; a superannuation entitlement with a present value of about $20,000; jewellery worth about $2000 and money held in an account with Westpac Banking Corporation, of about $1280. 53 The plaintiff sets forth the following recurring expenses on a fortnightly basis, which total about $1050. Those expenses include an amount for an item described as "board expenses", $75. That relates to the plaintiff's occupancy of a house which she is sharing at 32 Brooklyns Road, Glenbrook. She shares that house with a friend. She does not pay any amount which can be described as either rent or occupation fee, and indeed she does not pay what, with accuracy, can be described as board. She does, however, contribute to certain items of outgoings in respect to the household expenses. She makes a contribution towards the upkeep of the establishment, including the upkeep of the gardens, and she purchases most of the food for the household. 54 The plaintiff has no security of residence in the Glenbrook establishment, which is owned by the father of the friend with whom she is presently residing. The plaintiff asserts that her need is for security of accommodation. I will come back to that consideration shortly. 55 The plaintiff is a single woman; she has never been married; she stated that she has no present intention or plans for matrimony. She has been pursuing a post-graduate course for the degree of Master of Business Administration. She deferred that course at the beginning of this year until August 1999. She expects to complete that course in 2000. The plaintiff said that she was pursuing that course in order to support her current position as a senior nurse manager and that she does not propose to change her present employment and she plans to remain working in the nursing profession. 56 The plaintiff gave evidence concerning her desires for accommodation. Since she has a cat and a dog she said that she cannot live in a home unit. She wishes to live either in the inner western suburbs of Sydney (identifying those suburbs as including Annandale, Newtown, Marrickville, Petersham, Enmore). She has lived in that area until she moved to the Glenbrook establishment two years ago. Most of her friends live in the inner west of Sydney. She gave evidence concerning the range of prices for an appropriate residence that she would wish to acquire in that area, being between $350,000 and $400,000. 57 Since the plaintiff works at the Westmead campus at Parramatta she travels by motor car from her residence at Glenbrook to Parramatta. That journey can take up to sixty minutes. She, therefore, does not desire to reside any further west of Parramatta than Glenbrook. She gave evidence of the cost of appropriate residences in the Glenbrook area, the average house in that area costing about $250,000. 58 The plaintiff has made inquiries concerning her eligibility to obtain a loan from Westpac. Having regard to her age and financial position she has been informed that she could obtain a loan for housing purposes of a little over $100,000. 59 The plaintiff seeks from the estate of the deceased an order for provision in an amount which, taking into account her potential to obtain a bank loan, would enable her to acquire a residence of her own, either in the inner west of Sydney or in the Glenbrook area. She seeks for the former an amount of at least $300,000, perhaps up to $350,000; for the latter, at least $150,000, perhaps up to $200,000. 60 Not even a natural child of a testator would have a claim upon the estate of a natural parent for an amount necessary to acquire a residence. The plaintiff in the instant case has professional qualifications and secure employment; her income exceeds her expenditure by at least $12,000. She certainly has not established any entitlement to receive from the estate of the deceased anything like the amount which has been submitted by her Counsel. 61 It seems to me, however, especially since the plaintiff received nothing out of the estate of her own father and that the totality of that estate passed to the deceased, that the plaintiff has established an entitlement to receive from the estate of the deceased an amount which would go at least some way towards assisting her in acquiring a residence, but certainly would not cover the total difference between any amount of a bank loan and the cost of the residence itself. 62 The Court is required to take into consideration any competing claims upon the testamentary bounty of the deceased. The only competing claim is that of the University of Sydney for the purposes of the restoration of the Anderson Stuart building. It has not been suggested on behalf of the defendant that, if there is any erosion of the residue of the estate of the deceased, the plans for the restoration of the Anderson Stuart Building will be significantly affected. Accordingly, I do not consider the competing claim of the residuary beneficiary has the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established. 63 In my conclusion, in all the circumstances of this case, it is appropriate that the plaintiff should receive out of the estate of the deceased a legacy in the sum of $100,000, and I propose so to order. 64 I make the following orders:

(1) I order that the plaintiff receive out of the estate of the late Donna Kent-Biggs (“the deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 12 August 1999, and if not so paid, to bear interest at Supreme Court rates.
(2) I order that the costs of the plaintiff on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased.
The exhibits may be returned.

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