Kimberley v Maxwell Keith Butcher, Geoffrey Alan Butcher and Garry SULGWYN Tonkin as Executors appointed under the Will of Mavis Jean Kimberley (Dec)
[2001] WASC 94
KIMBERLEY -v- MAXWELL KEITH BUTCHER, GEOFFREY ALAN BUTCHER AND GARRY SULGWYN TONKIN as Executors appointed under the Will of MAVIS JEAN KIMBERLEY (DEC) & ORS [2001] WASC 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 94 | |
| Case No: | CIV:1979/2000 | 28 MARCH 2001 | |
| Coram: | MASTER SANDERSON | 12/04/01 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | STANLEY KIMBERLEY MAXWELL KEITH BUTCHER, GEOFFREY ALAN BUTCHER AND GARRY SULGWYN TONKIN as Executors appointed under the Will of MAVIS JEAN KIMBERLEY (DEC) MAXWELL KEITH BUTCHER GEOFFREY ALAN BUTCHER LYNETTE KAYE TONKIN |
Catchwords: | Inheritance Act application Widower seeking life tenancy in house left to deceased's children Turns of own facts |
Legislation: | Inheritance (Family & Dependants' Provisions) Act, s 6(1), s 7 |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201 Worladge v Doddridge (1957) 97 CLR 1 Blore v Lang (1960) 104 CLR 125 Goodman v Windeyer (1980) 144 CLR 490 Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995 Grey v Harrison [1997] 2 VR 359 Hughes v National Trustees, Executors & Agency Co Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Luciano v Rosenblum (1985) 2 NSWLR 6 Pontifical Society for the Propagation of the Faith and St Charles Seminar v Scales (1962) 107 CLR 9 Prosser v Twiss [1970] VR 225 Re Allardice (1910) 29 NZLR 959 Re Allen (Dec); Allen v Manchester (1922) NZLR 218 Re Lipscombe (Dec) [1963] NSWR 1509 Re Saxon (Dec); Saxon v Elders Trustee & Executor Co Ltd (1975) 12 SASR 111 Shah v Perpetual Trustee Co (1981) 7 Fan LR 97 White v Barron (1980) 144 CLR 431 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
BETWEEN : STANLEY KIMBERLEY
- Plaintiff
AND
MAXWELL KEITH BUTCHER, GEOFFREY ALAN BUTCHER AND GARRY SULGWYN TONKIN as Executors appointed under the Will of MAVIS JEAN KIMBERLEY (DEC)
First Defendants
MAXWELL KEITH BUTCHER
GEOFFREY ALAN BUTCHER
LYNETTE KAYE TONKIN
Second Defendants
(Page 2)
Catchwords:
Inheritance Act application - Widower seeking life tenancy in house left to deceased's children - Turns of own facts
Legislation:
Inheritance (Family & Dependants' Provisions) Act, s 6(1), s 7
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr T Darbyshire
First Defendants : No appearance
Second Defendants : Mr G A Rabe
Solicitors:
Plaintiff : Kott Gunning
First Defendants : No appearance
Second Defendants : Stables Scott
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 181 CLR 201
Worladge v Doddridge (1957) 97 CLR 1
Case(s) also cited:
Blore v Lang (1960) 104 CLR 125
Goodman v Windeyer (1980) 144 CLR 490
Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995
(Page 3)
Grey v Harrison [1997] 2 VR 359
Hughes v National Trustees, Executors & Agency Co Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Luciano v Rosenblum (1985) 2 NSWLR 6
Pontifical Society for the Propagation of the Faith and St Charles Seminar v Scales (1962) 107 CLR 9
Prosser v Twiss [1970] VR 225
Re Allardice (1910) 29 NZLR 959
Re Allen (Dec); Allen v Manchester (1922) NZLR 218
Re Lipscombe (Dec) [1963] NSWR 1509
Re Saxon (Dec); Saxon v Elders Trustee & Executor Co Ltd (1975) 12 SASR 111
Shah v Perpetual Trustee Co (1981) 7 Fan LR 97
White v Barron (1980) 144 CLR 431
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application brought under the provisions of the Inheritance (Family and Dependants' Provisions) Act 1972 ("the Act"). The plaintiff is the widower of Mavis Jean Kimberley ("the deceased") who died on 18 December 1999. Probate of the Will of the deceased was granted on 25 January 2000. The plaintiff says that the Will of the deceased does not provide for his proper maintenance, support or advancement in life and further provision ought be made for him out of the estate of the deceased.
2 The deceased is survived by her three children who are all named as the second defendants in these proceedings. For ease of reference throughout these reasons I will refer to the deceased's children as respectively Max, Geoffrey and Lynette. The Will of the deceased is dated 1 December 1994. By that Will she appointed Max and Geoffrey, together with Garry Sulgwyn Tonkin, Lynette's husband, executors of her estate. She bequeathed to her three children her jewellery and personal effects and a property situated at 614 Light Street, Dianella ("the Light Street property"). The rest and residue of her estate she left to the plaintiff. The Will of the deceased was supplemented by a codicil made 11 April 1997. By that codicil the deceased left to her three children the proceeds of an inheritance from her aunt, one Hazel Tadman, and the proceeds she was due from the estate of the deceased's mother, Vera Constance Schultz. Otherwise the Will of the deceased remained untouched.
3 At the commencement of the hearing the parties tendered by consent a copy of the statements of assets and liabilities ("Exhibit 1") which was filed with the application for probate. The date of the preparation of this statement is not apparent from the document itself. However, the parties agreed that it represented the value of the estate of the deceased at the date of her death. It is most unlikely that there was any significant change in the value of the estate of the deceased between the date of her death and the date of preparation of the statement of assets and liabilities. The statement shows the deceased had two bank accounts, both with the Commonwealth Bank of Australia. In Passbook Savings Account 6140-1176 there was a credit balance of $733.30. In Cash Management Trust No 3614-0938 there was a credit balance of $58,922.81. The statement shows that the deceased's furniture and effects were valued at $8507 and her jewellery was valued at $950. The value of her motor vehicle, a Nissan Bluebird, was put at $3000. The total of the moveable assets then was $72,113.11. The only immoveable property owned by the deceased was the Light Street property which was valued at $165,000.
(Page 5)
4 The distribution of the deceased's estate anticipated by the Will as effected by the codicil would see the money in the Cash Management Trust - $58,922.81 - pass to the three children Max, Geoffrey and Lynette. They would also receive the deceased's jewellery. Most importantly, they would also receive the Light Street property. The plaintiff would receive the money standing in the Passbook Savings Account, the deceased's furniture and household effects and the Nissan Bluebird. Importantly, so far as the plaintiff is concerned, he would be required to vacate the Light Street property and find alternative accommodation.
5 It was the plaintiff's contention that the failure of the deceased to provide for him a life interest in the Light Street property meant that the Will of the deceased did not adequately provide for his maintenance and advancement in life. The plaintiff is 72 years of age and he lived with the deceased in the Light Street property from the date of their marriage in 1980 until the deceased's death in 1999. Prior to his marriage to the deceased the plaintiff had lived for a short period in rental accommodation. The plaintiff said that at his time of life he did not want to have to find alternative accommodation. He wanted to stay where he was, in surroundings with which he was familiar, for as long as he could. He did not dispute that upon his death the Light Street property should pass to the deceased's three children. But, it was submitted on his behalf, the right of the children to take the Light Street property should be postponed until his death.
6 That is a shorthand summary of the position put by the plaintiff. As an alternative, it was submitted that he should be provided with sufficient from the estate to allow him to buy suitable accommodation. Some evidence was led on this issue which suggested that suitable accommodation could be acquired for around $100,000. But this alternative was very much the plaintiff's second preference. He wanted to stay where he was in an environment with which he was comfortable.
7 Before dealing in any detail with the evidence I will set out the legal framework within which applications of this nature are to be determined. There was no difference between the parties as to the applicable legal principles. The starting point is the decision of Bondelmonte v Blanckensee [1989] WAR 305. After referring to the relevant section of the Act, Malcolm CJ said (at 307):
"On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the
(Page 6)
- proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased: Coates v National Trustees Executor & Agency Co Ltd (1956) 95 CLR 494. If that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order."
8 This passage was cited with approval by the High Court in Singer v Berghouse (1994) 181 CLR 201. In their joint judgment Mason CJ, Deane and McHugh JJ explained the position in the following way (at 209 - 210):
"In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen; Allen v Manchester. In that case his Honour said:
'The provision which the Court may properly make in default of testamentary provision is that which is a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.'
For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on a statutory language.
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 Ltd. The determination of the first stage in the two-stage process 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 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
(Page 7)
- the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, 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 applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance …
Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the 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 applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life."
9 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 was a decision of the Privy Council. Dealing with what amounts to "proper" maintenance, Lord Romer said (at 476):
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
10 Having said that what is "proper" must be determined in the light of all the circumstances of the case, his Lordship went on (at 478):
"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider
(Page 8)
- what is proper maintenance, and therefore the property left by the testator has to be taken into consideration. So, too, in the case of children, material consideration is their age. If a son is of mature, or nearly mature, age, his needs both for the present and the future can be estimated without much difficulty. In the case, however, of a son of tender age, although his immediate needs can be readily ascertained, it is extraordinarily difficult even to guess what his needs may be in the future. Where, therefore, the testator's estate is a large one, the Court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small."
11 After Singer v Berghouse, questions have frequently been raised as to the status of the so-called "moral obligation test" referred to by earlier authorities. The majority in Singer v Berghouse, while not ruling out such a test, appear to cast doubt on its applicability. This issue was raised in the New South Wales Court of Appeal in the decision of Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24. Kirby P (as he then was) analysed the position in this way (at 29 - 31):
"What I take Murphy J in Hughes v Goodman, and the majority in Singer, to be warning about is this. Courts must be very careful not to substitute notions of morality (for example, in the sense of disqualifying personal conduct, sexual acts, drinking habits etc) for the purposes of the Act. By its terms, the Act is designed to protect eligible persons where inadequate or no testamentary provision is made for their maintenance, education or advancement in life. I do not take the comment in Singer to go beyond this.
… Therefore, notwithstanding the long history behind the use of the concept of 'moral duty' in this area of legal activity, I respectfully agree with the opinion now expressed in the High Court. Although obiter and not technically binding, it must not be seen as a slip. Courts in this State, including this Court, should conform."
12 Handley JA was of the view that the dicta of the majority in Singer ought not be followed. Rather, his Honour said, the moral duty test was "a useful yardstick" and "a convenient factual test". Sheller JA took a slightly different approach. His Honour said (at 46 - 47):
(Page 9)
- "Singer v Berghouse contains an authoritative restatement of the approach that should be taken by the court when considering an application under s 7 of the Family Provision Act. However, although the Family Provision Act specifies matters which may be taken into consideration and allows the court to take into consideration unspecified circumstances existing before and after the death of the deceased person and any other matters which it considers relevant in the circumstances, it leaves undefined the norm by which courts must determine whether a provision is inadequate for the applicant eligible person's proper maintenance, education and advancement in life. To achieve what is seen to be the legislative intention and bring some certainty into the application of the Family Provision Act, the courts have developed principles and standards which have been applied in determining applications under the Family Provision Act and its predecessors. One such was the provision a just and wise testator would have thought it his or her moral duty to make in the interests of the prescribed claimants had he or she been fully aware of all the relevant circumstances.
In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance education or advancement in life the court should be guided by a consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in circumstances mentioned in the Family Provision Act and then obtaining, ought be made in favour of the eligible person … I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts. However it avoids doctrinal and inflexible judge made rules and fulfils the court's function … of speaking for the feeling and judgment of fair and reasonable members of the community. … As well as allowing for change in community standards this approach involves no departure from the language of the Family Provision Act and removes any possible diversion resulting from a consideration of irrelevant moral duties of the sort to which Stout CJ and Murphy J referred and irrelevant behavioural considerations. I think this is the approach which courts should now adopt."
13 With respect, it seems to me that the approach adopted by Sheller AJ has much to recommend it. As Malcolm CJ pointed out in Bondelmonte
(Page 10)
- v Blanckensee and has been repeatedly confirmed in subsequent cases, the question of whether or not "adequate provision" (to use the words of s 6(1) of the Act) has been made for the applicant is a question of fact. It does involve some exercise of value judgment. Rather than speak in terms of the rather "amorphous concept of moral duty" the better approach may be simply to speak "for the feeling and judgment of fair and reasonable members of the community". I very much doubt that this will produce any different result than application of the moral obligation test. But to adopt such an approach is to make accessible to the wider community a test which is easily understood and more readily applicable.
14 Before leaving the question of the legal framework, there is one further matter I should mention. It has been said repeatedly that it is not the function of the court in an application such as this to re-write the deceased's will. In Worladge v Doddridge (1957) 97 CLR 1 Williams and Fullager JJ put the position as follows (at 12):
"One thing the court should not do is attempt to make a new will for the testator. The court is only authorised to alter a testator's disposition of his property so far as it is necessary to provide for the proper maintenance and support of his widow or children where insufficient means have been provided for this purpose."
15 So the question then is this: Did the Will of the deceased in all the prevailing circumstances adequately provide for the proper maintenance, support and advancement in life of the plaintiff? The answer to this question, which is a question of fact, is to be determined as at the date of the death of the deceased.
16 Some of the facts relevant to the determination of this question are not in dispute. The plaintiff is 72 years of age. He is in reasonably good health. He suffers a degree of deafness which requires him to wear a hearing aid but with the aid of the hearing aid, he does not appear to be greatly inconvenienced. He suffered a back injury which resulted in his retirement from the workforce on workers' compensation. There was no evidence as to the extent to which his activities are limited by this injury. He wears a back brace and is able to go about his day-to-day business. There is certainly no evidence that his mental faculties are in any way impaired. He was cross-examined by counsel for the second defendants for more than a day and although he appeared to tire slightly from time to time, he bore up well under at times intense questioning. There was no medical evidence to suggest he suffered from any other disabilities.
(Page 11)
17 There is also no dispute as to the plaintiff's present financial position. He receives net weekly income of $620.28. This is made up of a combination of workers' compensation, superannuation and a Veteran's Affairs pension: See the plaintiff's affidavit sworn 4 October 2000, par 2. The plaintiff puts his weekly expenses at $529.17: See the plaintiff's affidavit of 4 October 2000, par 3 to par 8. (There is at least one error in the list of weekly expenses provided in par 8 of the affidavit. Under item (h) Rates are said to be $44.53 per week. In par 3(h) the plaintiff says that Shire Rates are $534.39 per year. That is just over $10 per week. Allowing for that discrepancy the expenses of the plaintiff on his evidence are around $500 per week.) Of these expenses, $300 per week is said to be for "food and entertainment": See plaintiff's affidavit of 4 October 2000 par 6 and par 8(n). Counsel for the second defendants made the point that no detail was given as to how this money was expended each week and precisely the use to which it was put. I will deal with that question below. For the present it is enough to say that there is no dispute about the plaintiff's income and little or no dispute about his outgoings.
18 As at the date of swearing his affidavit of 4 October 2000 the plaintiff had two term deposits with the Statewest Building Society totalling $33,823. He had a further $14,000 in a fixed term deposit at the Challenge Bank and $2500 in a savings account at the Challenge Bank. There is no indication as to his cash asset position at the date of death of the deceased. However, it would seem that there was no material difference between December 1999 and October 2000 when the affidavit was sworn.
19 The deceased's other asset is a half-interest in a property at Milford Way, Nollamara ("the Milford Way property"). The plaintiff jointly owns the Milford Way property with his former wife, Frances Warren Kimberley. The plaintiff was married to Frances Kimberley for 20 years - the marriage being dissolved in 1978. The Milford Way property is unencumbered and is presently occupied by the plaintiff's ex-wife. In the course of his evidence the plaintiff said that he thought the value of the Milford Way property was between $80,000 and $100,000 (see transcript p 35). In the course of cross-examination the plaintiff said that he would not "impose upon (his) ex-wife to put her in a position where I could lose the house for her": See p 38. However, there was no evidence to suggest that the plaintiff was not entitled to realise his half-interest in the Milford Way property pursuant to the provisions of s 126 of the Property Law Act. During his closing submissions counsel for the plaintiff argued that the Milford Way property should not be regarded as an asset of the plaintiff
(Page 12)
- because he had taken no steps to realise his half-interest and there may be some claim the plaintiff's ex-wife could make against the plaintiff's interest in the property. There was no evidence that the plaintiff's ex-wife had any claim against the plaintiff's interest in the property and throughout his cross-examination the plaintiff did not suggest that he intended to relinquish his interest in the property. In the circumstances I must conclude that the plaintiff's assets include a half-interest in the Milford Way property. On the plaintiff's evidence that interest would be worth between $40,000 and $50,000. It is proper to acknowledge that the plaintiff's interest in the Milford Way property could not be realised immediately and might perhaps be the subject of legal action. Nonetheless, it is properly considered an asset of the plaintiff.
20 It is not in dispute that the plaintiff and the deceased were married for a period of 19 years. Although the second defendants dispute the plaintiff's assertion that the marriage was happy and loving, they do agree that the plaintiff and the deceased travelled extensively during their marriage in company with one another. There is no doubt the deceased enjoyed travelling in company with the plaintiff. It is also not in dispute that the plaintiff cared for the deceased in the 18 months following the diagnosis of her terminal illness. None of the defendants when giving their evidence sought to play down the significance of the plaintiff's contribution to the well-being of the deceased during her illness, particularly in the last months.
21 Finally, and for the sake of completeness in relation to matters not in dispute between the parties, the Will of the deceased made provision for the plaintiff only in the sum of just over $11,000. If the Will stands in its present form, the plaintiff must find alternative accommodation. He has no accommodation available to him which he could move into immediately.
22 The extent to which the plaintiff had contributed to the estate of the deceased was a matter of some dispute. Both the plaintiff and the defendant were, up until the mid-1980s working. There was no dispute that up until this time the plaintiff and the deceased pooled their income and paid their expenses from these funds. Although there was no direct evidence on the point it is readily apparent that all of the costs of maintaining the Light Street property were paid from these pooled funds.
23 The deceased retired on 30 August 1985. It appears she had no superannuation entitlement and although she may otherwise have been entitled to a War Widow's Pension, the fact she was living with the
(Page 13)
- plaintiff meant that she received only a nominal amount. That means that from August 1985 onwards the plaintiff's income provided for all the living expenses of the plaintiff and the deceased. However, it is not entirely clear what capital the deceased had when she retired in 1985. It was the plaintiff's position that the deceased had nothing. However, her bank statements ("Exhibit 15") show that as at 30 September 1985 she had a number of fixed deposits totalling over $20,000. Because of the way the plaintiff and the deceased transferred money into and out of their various accounts, it is not easy to reconcile what became of these funds. However, the cash held by the deceased at the date of her death can be traced to the legacies from her mother and her aunt. So any money held by the deceased when she finished work must have been used during the following 13 years to defray the joint expenses of the plaintiff and the deceased. To an extent then it must be said that the plaintiff contributed to the estate of the deceased. If it had not been for his income the deceased would probably not have been in a position to retire when she did and she may well not have been able to maintain the Light Street property. There is a degree of speculation in this conclusion - the period involved is 13 years and the financial affairs of the plaintiff and the deceased, although well documented, are difficult to follow. But insofar as it is a relevant consideration, the plaintiff did make a contribution to the estate of the deceased.
24 In June 1999 the deceased transferred to the plaintiff an amount of approximately $33,000 then standing in her name. This is the origin of the $33,000 presently held by the plaintiff in the Statewest Building Society. There was a significant dispute between the plaintiff and the second defendants as to the circumstances in which these funds came to be transferred by the deceased to the plaintiff. All parties agree that a family meeting was called, ostensibly to discuss the deceased's funeral arrangements and this meeting was held on 30 May 1999. The plaintiff, the deceased and the three named second defendants were all present.
25 The plaintiff says that during the course of the meeting the fate of the Light Street property was mentioned. The plaintiff said that he acknowledged that the property would eventually pass to the children of the deceased. He says he told the meeting that he wished to stay in the property for the rest of his life. He says when he voiced his wishes there was no response from the second defendants other than silence. He says that subsequently the deceased suggested they both attend on their bank and the deceased would transfer to the plaintiff the $30,000 standing in her account and which he says was in any event his property. The
(Page 14)
- plaintiff says this move to transfer money to him was done without any prompting on his part.
26 The second defendants tell an entirely different story. They say that during the course of the meeting the question of the living arrangements for the plaintiff after the death of the deceased were raised. The second defendants say that the plaintiff told them he had researched the possibility of moving into an RSL home unit. He said that this required a deposit of $20,000 which he did not have. During the course of discussions it was agreed that the deceased would transfer to the plaintiff the sum of $30,000 to facilitate his move to the RSL accommodation. This the second defendants say is why the deceased transferred the $33,000 to the plaintiff when she did.
27 Having read the affidavit evidence of each of the witnesses regarding this meeting of 30 May 1999 and having seen the plaintiff and each of the second defendants cross-examined, I am left in no doubt that it is the second defendants' version of this meeting which I should accept. In their affidavits each of the second defendants gives precisely the same version of this 30 May 1999 meeting. When asked about this in cross-examination each of the second defendants said that they had been asked by their solicitors to separately prepare a statement of what had occurred at the meeting. When the versions of the meeting were compared they found such a similarity that the version appearing in each affidavit is an accurate statement of each of their recollections. When cross-examined none of the second defendants resiled in any way from what they said about the meeting. The plaintiff, on the other hand, during cross-examination appeared rather more uncertain. Moreover, it seems to me most unlikely that if the plaintiff had voiced a wish to stay in the house for the rest of his life that the response from the second defendants would have been silence. All parties agreed that it was always the intention of the deceased that the second defendants should have the Light Street property and that it should be theirs as soon as she passed on. For such a radical shift in position on the part of the plaintiff to draw nothing more than silence from the second defendants is, in my view, unbelievable.
28 It is also significant that some time after 30 May 1999 the plaintiff applied for an RSL independent living unit. The date upon which the application was made is unclear but the application itself was acknowledged by letter from the RSL War Veterans Homes dated 7 October 1999 (part 2 exhibit 2). The fact that the plaintiff made an
(Page 15)
- application for the RSL home unit is consistent with what the second defendants say took place at the meeting on 30 May 1999.
29 There is a dispute between the parties as to the nature of the relationship between the plaintiff and the deceased. The plaintiff says that the relationship was happy and characterised by mutual love and affection. The second defendants take issue with that description of the relationship. To an extent their evidence on this issue is drawn from what they say they were told by their mother. I have put this evidence to one side on the basis it is inadmissible hearsay. I accept, however, based upon the observations made by the second defendants that the deceased was not entirely happy within the relationship. Nonetheless it must be accepted that the plaintiff and the deceased were married for some 19 years and all parties agree that there were times of happiness, particularly when they were travelling. Beyond that, little more can be said of the nature of the relationship between the plaintiff and the defendant.
30 Clearly the second defendants have legitimate claims upon the bounty of the deceased. The plaintiff admits as much in that he does not suggest the Light Street property should not eventually pass to the second defendants. As to the present means of the second defendants, Lynette is by far the best placed. Her husband is in full-time employment earning a reasonable income which is supplemented by commissions earned. Lynette herself works part-time as a medical receptionist. They own a home in which they have considerable equity. Lynette and her husband have three children, one of whom suffers from a severe obsessive compulsive disorder and a body dysmorphic disorder. This illness places some additional financial strain on the family but it is manageable.
31 Max and Geoffrey are less well placed. Max is a jeweller and at present he runs a business from his home. In the late 1980s he started a jewellery shop in Morley. The business was not successful and was eventually closed down occasioning the family considerable loss. Max and his wife own their own home in Morley and it is unencumbered. Their joint income is modest, being something under $40,000 per year.
32 Geoffrey is a minister of religion and is employed part-time at the Wanneroo Community Baptist Church. Taking into account Geoffrey's income, government payments and his wife's income from part-time employment, the total income is $650 per week. This income supports the husband, wife and two children. Geoffrey and his wife live in rented accommodation but as the property is owned by Geoffrey's wife's father's deceased estate, the rental is a modest $60 per week. Eventually
(Page 16)
- Geoffrey's wife will inherit the property. It is clear from Geoffrey's evidence that on a modest income and with limited resources living from day to day is a struggle. Of the three children, his need is clearly the greatest.
33 From time to time throughout the last 10 years of her life the deceased advanced to her children certain sums of money. Part of these funds undoubtedly came from the legacies the deceased received from her mother and her aunt. The early advances, particularly those made to Geoffrey, appear to have been drawn from the joint funds of the plaintiff and the deceased. The plaintiff says that he was not aware of these advances and when he became aware of them he acted to stop any further payments. Be that as it may, it is relevant to note that the three children of the deceased did, independent of anything contained in the deceased's Will, receive from the deceased financial assistance during her lifetime.
34 One aspect of the way in which the plaintiff presented his case that seems surprising was the absence of any evidence about the Light Street property and the plaintiff's connection with it. Nowhere in the evidence of the plaintiff is there any indication of the size of the house, the number of bedrooms that it has, the use made by it of the plaintiff and the importance of its location to the plaintiff's lifestyle. There was evidence that the plaintiff has two dogs, both acquired since the death of the deceased and that the RSL homes have a no pets policy. Moreoever, the plaintiff has lived in the Light Street property for over 20 years and it might be assumed on that basis alone that he has some affection for it. But there was no evidence to suggest, for instance, that he was a keen gardener who was anxious to remain in the property because of that interest. Given the pausity of evidence all I can conclude is that the plaintiff wishes to remain in the property because he has been there for a long time and because it is inconvenient for him to move.
35 All of the matters I have mentioned are of greater or lesser relevance in determining whether or not the deceased adequately provided for the plaintiff at the date of her death. Taking into account all matters I have mentioned I am satisfied that the Will of the deceased was in all the circumstances adequate in providing for the plaintiff. I am satisfied that proper provision for the plaintiff would be such as to allow him to move to an RSL unit. The deceased took steps to ensure the plaintiff was in a position to obtain such a unit prior to her death. Having taken those steps she then left to the deceased in her Will the majority of the furniture in the Light Street property. That will allow the plaintiff to adequately furnish his new premises. He has adequate income with which to maintain his
(Page 17)
- lifestyle and some capital in the case of emergencies. On the facts of this case I am satisfied that the provision in the deceased's Will is in all respects adequate.
36 In my view it is of no consequence that the plaintiff either during his discussions with the deceased or at the meeting on 30 May 1999 agreed not to challenge the Will of the deceased. What is in issue is the adequacy of the provision in the Will for the plaintiff. Any agreement not to challenge the Will, if there was such an agreement, could not be binding on the plaintiff and is not relevant to this application.
37 I would dismiss the plaintiff's originating summons. I will hear the parties as to the form of order and as to costs.
0
10
0