Lee-James v Mayer as Executor of the Estate of John Richard James (Dec)
[2006] WASC 224
LEE-JAMES & ANOR -v- MAYER as Executor of the Estate of JOHN RICHARD JAMES (Dec) [2006] WASC 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 224 | |
| Case No: | CIV:2326/2004 | 4 SEPTEMBER 2006 | |
| Coram: | McKECHNIE J | 29/09/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Awards made | ||
| B | |||
| PDF Version |
| Parties: | ALETA BEATRICE LEE-JAMES DARREN JOHN LEE-JAMES DIANE LEONA MAYER as Executor of the Estate of JOHN RICHARD JAMES (Dec) |
Catchwords: | Inheritance (Family and Dependant Provisions) Act 1972 (WA) Whether adequate provision made for children No new principles Turns on own facts |
Legislation: | Inheritance (Family and Dependant Provisions) Act 1972 (WA) |
Case References: | Hyland v Burbidge [2000] NSWSC 12 Rowan v Roche [2005] WASCA 6 Singer v Berghouse (No 2) (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959 Anasson v Phillips, unreported; SCt of NSW; (Young J); 4 March 1988 Bondelmonte v Blanckensee [1989] WAR 305 Browne v McAulay [1999] WASC 208 Clarke v Public Trustee [1999] WASC 172 Grainger v Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995 Ibrahim v Dos Remedios [2005] NSWSC 202 Kazacos v Kazacos [2002] NSWSC 878 Kelly v Kelly [2005] WASCA 42 Kitson v Franks & Anor [2001] WASCA 134 Kleinig v Neal [1981] 1 NSWLR 462 McCosker v McCosker (1957) 97 CLR 566 Morton v Little [2005] NSWSC 36 White v Barron (1980) 144 CLR 431 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
and
Will and Estate of JOHN RICHARD JAMES (Dec)
- DARREN JOHN LEE-JAMES
Plaintiffs
AND
DIANE LEONA MAYER as Executor of the Estate of JOHN RICHARD JAMES (Dec)
Defendant
Catchwords:
Inheritance (Family and Dependant Provisions) Act 1972 (WA) - Whether adequate provision made for children - No new principles - Turns on own facts
(Page 2)
Legislation:
Inheritance (Family and Dependant Provisions) Act 1972 (WA)
Result:
Awards made
Category: B
Representation:
Counsel:
Plaintiffs : Mr B H Taylor
Defendant : Mr D L Jones
Solicitors:
Plaintiffs : Talbot & Olivier
Defendant : Auburn & Associates
Case(s) referred to in judgment(s):
Hyland v Burbidge [2000] NSWSC 12
Rowan v Roche [2005] WASCA 6
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Case(s) also cited:
Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959
Anasson v Phillips, unreported; SCt of NSW; (Young J); 4 March 1988
Bondelmonte v Blanckensee [1989] WAR 305
Browne v McAulay [1999] WASC 208
Clarke v Public Trustee [1999] WASC 172
Grainger v Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995
Ibrahim v Dos Remedios [2005] NSWSC 202
(Page 3)
Kazacos v Kazacos [2002] NSWSC 878
Kelly v Kelly [2005] WASCA 42
Kitson v Franks & Anor [2001] WASCA 134
Kleinig v Neal [1981] 1 NSWLR 462
McCosker v McCosker (1957) 97 CLR 566
Morton v Little [2005] NSWSC 36
White v Barron (1980) 144 CLR 431
(Page 4)
1 McKECHNIE J: John James was a larger than life north-west character. His life's work had been to develop the Yakka Munga Station in the Kimberley. Its very name encapsulated his philosophy: "work for your tucker". A helicopter accident while mustering cattle brought about his untimely death on 28 September 2003 when he was aged just 55 years. He was a bush poet, generous of spirit on occasions and highly thought of. There was, however, another side. He would drink to excess and be violent and abusive. John had two children, Aleta born 23 March 1980 and Darren born 16 October 1981. Together with their mother, they lived at Yakka Munga Station until 1986 when they went to live with their mother in Derby. Although on 1 May 1986 their mother obtained a restraining order against the deceased for a period of 6 months, the two children continued to visit the station on weekends and school holidays. In 1988, in circumstances of physical violence, the mother, who had returned to the station, finally left but only after the deceased had confronted her and threatened to kill her. The break-up of the relationship between the deceased and the children's mother was to cause the deceased great feelings of bitterness towards her for the rest of his days and to contribute to the subsequent dealings between father and children.
The Will
2 In 1989 the deceased made a Will. Clause 5 and 6 read as follows:
"5. I EXPRESS the wish but without creating any binding trust in that behalf that should at the date of my death or at any time thereafter my sister the said Diane Leona Mayer is of the opinion that my children Aleta Beatrice James and Darren John James are persons of financial responsibility and express a desire to carry on any Pastoral or other business in which I may be engaged at the time of my death or be in genuine need of financial assistance and be uninfluenced by their mother or any other person then my said sister shall transfer to my said children or pay to them such part or parts of the assets which she is entitled to receive or has received as the sole beneficiary under this my Will as she in her absolute and unfettered discretion shall think fit.
6. I DIRECT AND DECLARE that I have made no provision under this my Will for my said children other than the expression of the wish contained in the previous Clause as I am not at the date of this my Will satisfied
- that my said children if they obtained a vested interest in my estate under this my Will would deal with my estate or any part thereof in a financially responsible manner uninfluenced by any person or continue to carry on any Pastoral or other business which may be carried on by me at the date of my death and I further declare that it is my desire that any such business as far as may be practicable remain in my family and I am confident that this will be the case only if my said sister has the unfettered control over my assets."
3 On 3 March 1989 Aleta was 8 years and Darren was 7 years.
The present proceedings
4 Following the helicopter accident the deceased's sister, Diane Mayer, came to Yakka Munga Station. She had conversations with Aleta and Darren. At first she offered to split the property three ways. Later she changed her mind and it is her present intention to continue her brother's work to turn Yakka Munga into a showpiece. She has been involved with her husband in cattle properties over the last 25 years.
5 On 12 October 2004 Aleta and Darren by originating summons claimed that provision be made out of the estate of John Richard James in their favour pursuant to s 7(1)(c) of the Inheritance (Family and Dependant Provisions) Act 1972 (WA).
The evidence in the proceedings
6 The parties agreed that for the purpose of these proceedings the value of the estate is $4 million.
7 Evidence was adduced by affidavit. The following affidavits comprised the evidence in support of the plaintiff's application:
• Affidavit of Aleta Beatrice Lee-James sworn 14 December 2004 (Aleta's first affidavit);
• Affidavit of Darren John Lee-James sworn 14 December 2004 (Darren's first affidavit);
• Affidavit in reply of Aleta Beatrice Lee-James sworn 30 September 2005 (Aleta's second affidavit);
(Page 6)
- • Affidavit in reply of Darren John Lee-James sworn 30 September 2005 (Darren's second affidavit);
• Affidavit of John Gould sworn 25 October 2005 (Gould's affidavit);
• Supplementary affidavit of Aleta Beatrice Lee-James sworn 31 August 2006 (Aleta's third affidavit);
• Supplementary affidavit of Darren John Lee-Lames sworn 31 August 2006 (Darren's third affidavit);
• Further supplementary affidavit of Aleta Beatrice Lee-James sworn 4 September 2006 (Aleta's fourth affidavit);
• Further supplementary affidavit of Darren John Lee-James sworn 4 September 2006 (Darren's fourth affidavit).
8 Aleta, Darren and Mr Gould were cross-examined and re-examined. The plaintiffs tendered as Exhibit 1 a letter (undated) written by Aleta to John and a letter written by the plaintiffs' solicitors to the defendant's solicitors on 10 November 2003 (Exhibit 2).
9 The following affidavits were received into evidence on behalf of the defendant:
• Affidavit of Diane Leona Mayer sworn 9 December 2004 (Executrix's affidavit);
• Affidavit of Diane Leona Mayer sworn 7 February 2005 (Mayer's affidavit)
• Affidavit of Shane Michael O'Laughlin sworn 4 February 2005 (O'Laughlin's affidavit);
• Affidavit of David John Morrell sworn 7 February 2005 (Morrell's affidavit);
• Affidavit of Patrick William Johns sworn 8 February 2005 (Johns' affidavit);
• Affidavit of Cherril Ann Zammit sworn 11 February 2005 (Zammit's affidavit);
(Page 7)
- • Affidavit of Christine Katherine Noonan sworn 24 February 2005 (Noonan's affidavit);
• Affidavit of Annette Caroline Henwood sworn 9 March 2005 (Henwood's affidavit);
• Affidavit of Catherine Webb-Smith sworn 9 March 2005 (Webb-Smith's affidavit).
10 Apart from the defendant, the plaintiffs did not require the deponents to attend. The defendant was cross-examined.
Aleta
11 Aleta's evidence outlined her contact with and relationship with her father over the period of her life. She was an impressive witness and I accept her evidence as to the relationship with her father. Until she went to boarding school in Darwin, Aleta spent some school holidays and weekends with her father on the station. These visits lessened as she grew older and I am satisfied that a reason was her father's excessive drinking and verbal rages about her mother. She and her brother were young when they visited the station but I am satisfied they engaged in station work appropriate to their age. John, as his daughter recounts, loved to teach and I am sure that she and Darren absorbed much about the running of a cattle station and about the Brahman and Brahman-cross bulls and cows. Contact certainly diminished substantially when Aleta went to St John's Boarding School in Darwin and I find there was sporadic contact by letter and telephone. Aleta last saw her father in person at the local supermarket when she was 15 years but could not talk to him due to a panic attack.
12 The statements attributed to John by some of the defendant's witnesses, including the defendant herself, clearly indicate there was an estrangement between John and his children for a considerable period. One of the sadnesses of untimely death is that it prevents rapprochement. The children were young when their parents split and during their adolescent time Aleta was subject to verbal abuse. However, her evidence, supported by the letter (Exhibit 1), indicates to me that she nevertheless loved her father and both she and he were making tentative steps to find a way forward.
13 Aleta also gave evidence as to her work history and educational ambitions. It is true that she has long deferred studies towards a degree in agriculture, particularly in agribusiness. She is now undertaking a bridging course in mathematics at the University of Queensland as an
(Page 8)
- external student; mathematics being her required subject. She has obtained a certificate in beef production and I am satisfied she has a genuine interest in pursuing both a career in agriculture and further qualifications in that subject.
Darren
14 I also accept Darren as an honest and uncomplicated witness whose evidence as to his early life and contact with his father largely mirrors that of Aleta although he seems to have spent more time than she on holidays at the station. Unlike Aleta, Darren was subject, on occasion, to physical abuse in addition to verbal abuse directed both at his mother and at he and Aleta.
15 In 1994 Darren went to boarding school in Darwin and stayed with his father at the station several times that year. In the following two years he went to an agricultural college outside Geraldton and although he had phone contact with his father he did not visit him again either while in Geraldton or after he returned to Derby to complete his education and then his apprenticeship as an auto electrician.
16 Clearly the evidence shows that the relationship between father and son was strained and from the evidence I conclude that the reason for most of the tension between them had to do with the deceased's excessive drinking and consequent rages. As with Aleta, however, shortly before his death, John appears to have been extending an olive branch by ringing Darren one night asking him to do some auto electrical work on the station and to spend the weekend out there.
17 Both Darren and Aleta deny ever asking their father for money and I accept their denial. They were not cross-examined about this topic.
18 Darren also gave evidence of his educational qualifications and his current plans for the future, together with the present state of his financial affairs.
The future of Yakka Munga
19 John Gould gave evidence that the deceased told him in conversations that he wanted Yakka Munga to stay in the family and he did not want it sold. He told Mr Gould that he left Yakka Munga to his sister and she would do the right thing in making sure that Aleta and Darren were looked after. Aleta's evidence, about which she could not be shaken, was that in one conversation in 2003 her father said to her "Aleta, promise me you will never sell the station. I'm not working my guts out
(Page 9)
- for nothing. Promise me." Darren gave evidence that his father had told him on several occasions that the station was not to be sold and that Aleta and he were to take over the station and keep it in the family. This evidence contrasts to some degree with other evidence. First, there is the Will itself which clearly leaves the property to Mrs Mayer. The deceased had obviously not forgotten the terms of his Will because he mentioned this on several occasions to Mr Gould.
20 To Christine Katherine Noonan on several occasions the deceased expressed his disappointment in his children claiming that they shunned him and that they showed a lack of interest in him or Yakka Munga and that all the hard work and the dream he had pursued for three decades would be dissipated in one strike of an auctioneer's gavel if he left the station to his children.
21 The affidavit of Cherril Ann Zammit was subject to one objection as to relevance which I uphold. She deposed to the deceased telling her that he had begged his children to take on Yakka Munga Station and they had both refused him point blank.
22 Patrick William Johns' affidavit was subject to one objection as to relevance which I uphold. He deposed as to a conversation with the deceased during which the deceased expressed views about the children and that they were only interested in his money. In contrast it was apparent that he had a very close and strong relationship with his sister Diane Mayer and that he had said she was the one person he could trust since his mother had died.
23 The affidavit of Annette Caroline Henwood was subject to objections as to relevance. I uphold the objection to par 8 and overrule the objection to par 3. In many many conversations with the deceased he never mentioned his children or their mother but spoke often of his sister Diane whom he telephoned each Sunday.
24 The affidavit of David John Morrell was subject to objections. I overrule the objection as to par 4 and uphold the objection as to the second sentence in par 7. The deceased had mentioned to the deponent on occasions how disappointed he was that his children had not shown much interest in the cattle station.
25 The affidavit of Shane Michael O'Laughlin was subject to objections which I overrule. He deposes as to conversation with the deceased about his relationship with his children and with Diane Mayer.
(Page 10)
26 The affidavit of Ruth Catherine Webb-Smith was subject to three objections each of which I uphold. Her evidence was to the effect that the deceased referred to being close to his sister and did not at any time speak about his children.
Conclusion on the relationship between father, daughter and son
27 The deponents to affidavits read on behalf of the defendant were not cross-examined. I therefore accept the affidavits as evidence as to what the deceased said from time to time about his children and his relationship with Mrs Mayer. This latter relationship is not in issue. It is clear that the deceased and his sister had a long, enduring and close sibling connection.
28 However, I also accept the evidence of Aleta and Darren both in their affidavits and under cross-examination as to their relationship with their father. In particular, I accept their denials that they asked their father for money. While there is an apparent inconsistency with the deceased's various utterances about the relationship with his children over the years, it is I think explained by the deceased's personality as best I can glean it. From the name of his station to his obvious work ethic, and his substantial achievement at Yakka Munga and beyond in the north-west, he was a highly driven man, proud of his accomplishments. He was also very bitter about the break-up of his relationship with the children's mother and that bitterness was directed both at her and displaced onto the children. He was a man who would drink to excess and was capable of violence. I think at times he genuinely believed that his children were not interested in him and he had some reason to hold this view because of the limited contact for a period of their adolescence, though brought about, in part at least, by his own behaviour. However, I also believe he was reaching out to his children and they in turn, with growing maturity, were prepared to accept a new and adult relationship with their father. Then the accident intervened.
29 The defendant specifically does not submit that either Aleta or Darren were guilty of any disentitling conduct.
The law
30 Aleta and Darren are both persons entitled to claim under s 7 of the Inheritance (Family and Dependants Provision) Act; their right to claim being set out in s 6(1).
(Page 11)
31 The legal principles underlying applications are generally well settled and the parties, through their counsel, were not in dispute as to the legal principles to be applied in this case.
32 Each acknowledged that there is a two-stage process. The first stage is the jurisdictional issue to be determined with reference to the date of decease as to whether the testator made adequate provision for the proper maintenance, support, education or advancement in life of the plaintiffs.
Jurisdiction to make any order
33 Many of the cases cited by the parties are more in the nature of examples of cases where Judges have found jurisdictional facts and exercised discretion. The leading cases which settle the principles are Singer v Berghouse (No 2) (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.
34 Their effect is conveniently summarised in Rowan v Roche [2005] WASCA 6 per Murray J at [13] as follows:
"13 In the end it must be recalled that by the section the court is asked to exercise its discretion to make the provision it thinks fit out of the estate of the deceased for the proper maintenance, support, education or advancement in life of the applicant. That is the extent and limit of the court's power. It is not concerned otherwise, or indeed at all, with the fairness of the disposition by Will and it has no mandate under the section to rewrite the Will of the deceased. Indeed, the court's obligation is to preserve the disposition made by the deceased, except to the extent necessary to make the provision which in the exercise of its discretion the court thinks the justice of the case before it requires: Singer v Berghouse (1994) 181 CLR 201, 209 - 211; Vigolo v Bostin (2002) 27 WAR 121, 144 [101] - [103]."
35 In considering the jurisdictional question it is necessary to return to the terms of the Will. Mr James did not make any provision under the Will for Aleta and Darren. The Will was carefully drawn to exclude any interpretation that he had made provision for them. True he expressed a non-binding wish but by doing so simply left to Mrs Mayer's discretion the fulfilment of any obligation he might have to Aleta and Darren, expressing the hope that her discretion would be exercised subject to certain pre-conditions. Contrary to a submission by the plaintiff's counsel,
(Page 12)
- I cannot construe the Will as being made on the assumption of the deceased that Mrs Mayer would exercise the discretion conferred under cl 5 of the Will and especially to transfer to the plaintiffs property in the station. This case is not about whether Mrs Mayer did or did not properly exercise the unfettered discretion given to her in the Will.
36 That said, his express wish in the Will is a recognition that circumstances may arise (albeit to be judged by Mrs Mayer) in which his children would have reason to advance a claim upon his estate.
37 Jurisdiction in this case would be denied only if I concluded that no provision from John James' estate was necessary to achieve the objects set out in the Inheritance (Family and Dependant Provisions) Act s 6. I do not so conclude. Having regard to the father/child relationship and all the circumstances, obligations and incidents of that relationship as I have outlined, the relative youth of each of the children at the time of death, the size of the estate, the legitimate expectations of the children, and their overall financial circumstances I conclude that the jurisdictional issue is satisfied. John James did not make adequate provision from his estate for the maintenance, education or advancement in life of Aleta or for the maintenance and advancement in life of Darren.
Discretion to make an order
38 I turn to the next question which is whether I should make an order out of the estate. Some principles are borne in mind. The Court should keep interference of the Will to the minimum required to discharge the jurisdiction under the Act and the Court should act as a wise and just father but not necessarily a loving or beneficent one. I have taken account of the different approaches to the issue of moral obligation owed by the deceased in Viggolo v Bostin as a factor to be given weight in the circumstances without detracting or overriding the general words of the statute. I take it into account in this way.
39 Although I keep interference of the Will to the minimum necessary, I do not need to consider any competing claim on the deceased's bounty by Mrs Mayer as none has been advanced in evidence.
40 At the time of John James' death, and also at the time of hearing, Aleta had no real net assets, was studying and supporting herself in a job. Darren had at both times little assets but qualification and employment as an auto electrician. Each are subject to the vagaries of life but, having regard to the mortality tables for males and females submitted by counsel, each could be reasonably expected to live beyond 70. Each are fit young
(Page 13)
- adults and I do not consider that each requires a provision for support. I do consider that Mr James failed to make adequate provision for their maintenance and advancement in life having regard to all of the evidence. Having regard to their relationship with Mr James and the size of the estate it is proper that they should receive an adequate provision to enable them to advance in life. This may be done by payment of a lump sum or periodical or other payments. I am attracted to the suggestion of both counsel and illustrated by a decision of Young J in Hyland v Burbidge [2000] NSWSC 12 that I should make a capital sum available to each to use at their discretion. In the case of Aleta I am of opinion that inadequate provision has also been made for her education. The evidence that the parties have chosen to put before me does not enable me to determine if Mr James paid for his children's schooling, particularly at boarding school in Darwin. However, I consider that he has failed to provide a proper provision for Aleta's tertiary education.
41 The cost of the completion of her university degree in Queensland was the subject of discussion and eventually agreement by counsel (TS 77) that the cost of the course would be $6459 for the full course. This is a three year course in agribusiness that she would prefer to study on campus.
42 She estimates the cost of accommodation as ranging (I have rounded the figures up) between $12,000 and $25,000. Textbooks and incidental living expenses are not included.
43 I consider that proper provision for accommodation, incidentals and the cost of the course would be $36,500 to be paid as a lump sum.
44 As to proper provision for general maintenance and advancement of life, I am unable to distinguish between Aleta and Darren. They each have different skills and aspirations but neither has been adequately provided for for proper advancement to make the most of their natural abilities having regard to their relationship with John James, his unfulfilled obligations to provide maintenance for them, the size of the estate.
45 Although counsel for the defendant referred me to a number of cases and the provisions made in those cases, I do not find that a general comparison of the size of estates and amounts ordered is very helpful. What is required is the exercise of discretionary judgment in the circumstances here bearing in mind my need to provide a lump sum which
(Page 14)
- might be invested or used as capital for the purchase of a business-producing asset or even accommodation.
46 Although I have had regard to such things as Darren's estimates of the cost of establishing a house and auto electrical business, the amount to be ordered for maintenance and advancement cannot be calculated with such precision.
47 For neither Aleta nor Darren is it appropriate to make an order based on a three-way split of Yakka Munga.
48 That would involve rewriting the Will to an unacceptable degree and beyond what is necessary to make proper provision for maintenance, advancement and education.
49 It is not possible to apply mathematical precision to the determination of adequate provision for proper maintenance and advancement in life; it is only possible to weigh all the factors and reach a conclusion. I conclude that Mr James did not make adequate provision from his estate for the proper maintenance, education or advancement in life of Aleta, or for the proper maintenance or advancement in life of Darren; his children. The case has been made for the exercise of my discretion to order provision out of the estate for that purpose. In the case of Aleta I order the payment of a lump sum of $486,500. In the case of Darren I order payment of a lump sum of $450,000.
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