Littlejohn v Littlejohn

[1999] NSWSC 634

CITATION:	Littlejohn v Littlejohn [1999] NSWSC 634
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4436/96
HEARING DATE(S):	24 June 1999
JUDGMENT DATE:	24 June 1999
PARTIES :	Mark James Littlejohn (P1) Deanne Gai Littlejohn (P2) David Michael Littlejohn (P3) Julie Anne Littlejohn (P4) Lois Littlejohn (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. M. S. Willmott (P) Mr. C. M. Simpson (D)
SOLICITORS:	Eric Butler Solicitors (P) Fred A & John F Newnham (D)
CATCHWORDS:
ACTS CITED:	Family Provision Act 1982
DECISION:	1. Order that the time for the institution of these proceedings be extended up to an including 23 July 1997.; 2. Order that in addition to the benefit given to her by the will of the late James Edward Littlejohn ("the Deceased"), the Plaintiff Deanne Gai Littlejohn receive a further legacy in the sum of $35,000.; 3. Order that the aforesaid sum of $35,000 be paid to the Plaintiff Deanne Gai Littlejohn by the Defendant, and that such sum not bear interest if paid on or before 24 September 1999, and if not so paid to bear interest at Supreme Court rates.; 4. Order that the Defendant pay the costs of the Plaintiff Deanne Gai Littlejohn, such costs to be on the party and party basis.; 5. Order that the claims of Mark James Littlejohn, David Michael Littlejohn and Julie Anne Littlejohn ("the other Plaintiffs") be dismissed.; 6. Order that the other Plaintiffs pay the costs of the Defendant in respect to the claims of the other Plaintiffs, such costs to be on the party and party basis.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 24 June 1999

4436/96 MARK LITTLEJOHN -v- LOIS LITTLEJOHN - ESTATE OF JAMES EDWARD LITTLEJOHN

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. The proceedings were instituted by summons filed on 16 December 1996. That summons named four plaintiffs, Mark James Littlejohn, Deanne Gai Littlejohn, David Michael Littlejohn and Julie Anne Littlejohn. By that summons the plaintiffs claim, substantively, an order that provision be made for the plaintiffs' maintenance, education and advancement in life pursuant to section 7 of the Family Provision Act 1982 out of the estate, and/or the notional estate, of James Edward Littlejohn late of Bangor in the State of New South Wales. 2 The four plaintiffs are the four children of the late James Edward Littlejohn (to whom I shall refer as "the deceased"). 3 The deceased was born on 19 November 1939. He died aged fifty-five on 3 June 1995. He left a will dated 2 July 1992 probate whereof was on 11 August 1995 granted to Lois Littlejohn, the executor named in such will, who is the defendant to the present proceedings. 4 By that will the deceased gave to each of his four children a legacy of $1000 and gave the residue of his estate to his wife, Lois Littlejohn. The assets disclosed in the inventory of property annexed to the probate consist of unused annual leave of $34,138 and unused long service leave of $22,774 totalling $56,912. In addition, the inventory of property discloses that the deceased was a joint tenant with his wife, the defendant, of the house property situate at and known as 10 Whitesands Road, Fingal Bay, which was the matrimonial home of the deceased and his wife at the time of his death. To that house property is ascribed in the inventory of property a value of $220,000. That house, by survivorship, passes to the defendant. 5 The defendant executor has listed the liabilities and estate debts as totalling $17,504, comprising American Express indebtedness, $2,672; medical expenses, $12,100; and funeral experiences, $2,732. In addition to the deceased and the defendant also had joint liabilities in respect of unpaid accounts relating to the Fingal Bay property, totalling $15,229. The defendant has notionally apportioned the total amount of joint liabilities equally between herself personally and the estate of the deceased. She has concluded that after the deduction of the total amount of liabilities (being estate debts of $17,504 and half of the joint liabilities in respect to the Fingal Bay property an amount of $7,614.50), and after the payment of the four legacies totalling $4,000, there will remain a net balance in the estate of $27,794.50, to which net balance the defendant is, under the terms of the will, entitled. 6 It must also be recognised that provision must be made for the costs of the present proceedings. Evidence has been placed before the Court that the costs of the plaintiffs will total about $20,000, whilst the costs of the defendant will total between $20,000 and $22,500. 7 I have already recorded that the proceedings were instituted in the names of the four children of the deceased. However, at the outset of the hearing this morning, Counsel for the plaintiffs informed the Court that the hearing was now proceeding only as a claim by Deanne Gai Littlejohn, the second plaintiff, and that the claims of the other three plaintiffs were being abandoned. 8 I have also referred to the fact that the summons was filed on 16 December 1996. That was twelve days after the expiry of the eighteen month limitation period from the date of the death of the deceased. However, there has been placed before the Court an affidavit by Eric Richard Leslie Butler, the solicitor for the plaintiffs, sworn 23 June 1999, which sets forth the circumstances in which the summons was not filed within the prescribed period. 9 Subsequently, on 23 July 1997, there was filed an amended summons, which seeks, in prayer 1, relief identical to that sought in prayer 1 of the summons, and also seeks, in prayer 2, an order that the time for the making of this application be extended. If I am otherwise satisfied that it is appropriate that an order for provision should be made in favour of the second plaintiff (to whom I shall refer as Deanne), then I consider that the failure of the plaintiff to institute the proceedings within the prescribed period has been sufficiently explained in Mr Butler's affidavit and that, in the exercise of my discretion, I should extend the time for the institution of the proceedings. 10 Deanne was born on 19 September 1966. She is presently thirty-two years of age. She resided with the deceased and her mother and her brothers and sister. The deceased and Deanne's mother separated in about 1989, when Deanne was about twenty-three years old. She left school after completing year nine in 1981 when she was aged fifteen, and left home in about 1984 when she was aged eighteen. She has thereafter always resided in rented accommodation. Deanne has never been in employment. That is essentially the consequence of the fact that she suffers from a condition known as Turner's Syndrome. She has never married, nor is she currently in a de facto relationship. 11 Deanne's sole income is a disability pension from Centrelink, which is presently in an amount of $442.60. She has a bank account with the St George Bank into which her pension is paid each fortnight. By the end of the fortnight there is usually little left in that account. 12 Deanne currently resides in an establishment known as Randwick Lodge at Botany Street, Randwick, in accommodation, which, from photographs tendered in evidence, is of an extremely basic (not to say, Spartan) nature. For that accommodation she pays rent of $250 a fortnight. Her other fortnightly expenses are listed in her affidavit of 24 June 1999. There is a shortfall of $62.40 between Deanne's average fortnightly expenses and her fortnightly income from her disability pension. She has no fund to allow for an emergency situation or for the acquisition of new clothing. She receives assistance in that regard and also in regard to food, from the Salvation Army. She regularly consults a general medical practitioner, Dr Bennett, who prescribes for her medication. Also, every six to twelve months, she is seen by a specialist medical practitioner at the instance of Centrelink. 13 Deanne requires dental treatment. This will be provided eventually by the United Dental Hospital, but she does not know when. It is possible it will be some years hence. She has been on a waiting list for the past three years. 14 Deanne has placed before the Court a list of quotations for various basic items of furnishing and electrical and other appliances which she does not possess and which one might expect would be regarded as standard equipment in any ordinary accommodation. The cost of those items totals something in excess of $8,500. 15 I have had the benefit of seeing Deanne in the witness box and of hearing her oral evidence. She was asked questions concerning why she had moved from the Central Coast area of New South Wales to Randwick where she has been residing for some years. Her explanation in that regard - that she was not accepted in the community where her mother, one of her brothers and one of her sisters, reside - appears to me to be a fully reasonable explanation. She said she is more accepted in the area where she presently lives and where she knows a considerable number of people. She also said, that, because she has mood swings which are uncontrollable, it would be difficult for her brother and sister, if she went to reside with them and their mother. 16 Deanne also expressed a desire - again a very reasonable aspiration - that she wants to better herself in regard to her accommodation. Evidence was placed before the Court, both orally and in Deanne's affidavit, concerning the cost of rental of somewhat higher standard accommodation in the Randwick area than she is presently occupying. 17 Deanne, as a daughter of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. Each of the other named plaintiffs is also an eligible person within the same paragraph of that definition. The defendant, as the widow of the deceased, is also an eligible person, coming within paragraph (a) of that definition. 18 In approaching the claim of the plaintiff the Court must also have regard to any competing claims upon the testamentary bounty of the deceased. Since the other three plaintiffs have now abandoned their claims the only claim competing with that of Deanne is the claim of the defendant. 19 The defendant married the deceased on 11 April 1992. They had, however, been living together since 1989. Accordingly, it is appropriate to regard the relationship between the defendant and the deceased as obtaining over a period of some six years from 1989 until the unexpected death of the deceased in mid-1995. 20 Each of the deceased and the defendant had been previously married, and previously divorced. The defendant brought into her marriage with the deceased various assets. Those assets included an amount of $85,000 from the sale of a house property at 15 Goorgool Road, Bangor; an amount of $7,500, being the proceeds of sale of her Ford Laser motor vehicle, an amount of $8,500, being the proceeds of sale of her caravan; and savings of $40,000. 21 Upon the death of the deceased the defendant received by survivorship the interest of the deceased in the former matrimonial home at Fingal Bay. She also received an interest in a joint account conducted by herself and the deceased at the St George Bank. The amount ascribed to that interest on behalf of the defendant is $1,500, although there appears to be a degree of doubt as to whether she actually received the benefit of that amount. She also received the interest of the deceased in a jointly owned Landcruiser motor vehicle, the estimated value of which vehicle was $25,000. 22 Apart from those amounts, which the defendant received by survivorship, and apart from the net balance of the estate, in the amount which I have earlier calculated, the defendant also received directly, as the nominated beneficiary of the deceased under a superannuation entitlement, an amount of $34,592.05. Further, the defendant also received, in her own capacity as widow of the deceased and not as a benefit passing from the estate of the deceased, an award in the Workers Compensation Commission of $65,000. 23 The defendant is presently aged sixty and will very shortly be aged sixty-one. Upon achieving the age of sixty-one she will be entitled to receive the age pension. She will achieve that age on 30 June 1999, less than a week hence. At the present time, however, the defendant is, and for some time has been, living upon her capital. She has a minuscule, income consisting of interest on savings. That income is a little over $1000 a year. 24 It is in the context of that competing claim upon the testamentary bounty of the deceased that the Court must approach the claim of Deanne. It must be recognised that the defendant is the chosen object of the testamentary beneficence of the deceased. 25 Normally there is no obligation upon a parent to make provision by way of accommodation for an adult child. But, in the instant case, Deanne suffers from a very considerable disability. That disability is such that she has never been in remunerative employment, she is not employed at present, and, despite some cross-examination in that regard, there does not appear to be any reasonable likelihood that she will ever be able to obtain any form of remunerative employment. 26 It seems to me to be very reasonable that Deanne should receive out of the estate of her late father some provision which would enable her to upgrade her accommodation, to acquire some basic items of household furnishings and equipment to enable her to have dental work carried out privately and not have to wait a period of years until the work can be done at the Dental Hospital, and also that she should have some relatively small amount available to meet contingencies and to constitute a fund to fall back on and possibly even to assist in giving her some additional benefits in what is obviously an extremely modest lifestyle. 27 It has been submitted on behalf of Deanne that if she were to upgrade her accommodation and obtain a rented flat in the Randwick area that there would be a shortfall between the amount which she would need for basic expenses and such increased rent on the one hand, and her pension from Centrelink on the other hand in an amount of about $4,500, possibly a little more, and that it would be appropriate for the Court to award to her an amount equivalent to such shortfall over a period of five years. That would make an amount of $22,000. When that figure is added to the needs, which are listed, of $8,561, and an additional component of $5,000, it has been submitted on behalf of the plaintiff that there should be a legacy awarded to Deanne in a total amount of $35,000. 28 I have already referred to the calculation on the part of the defendant of the amount of residue of the estate which might be available to meet such additional provision for Deanne. The figure of $27,794.50 is submitted by the defendant to be the actual net amount of residue after liabilities and estate debts, joint liabilities in respect of unpaid accounts relating to the Fingal Bay residence and the $4,000 of legacies have been deducted from the total amount of assets of $56,912. It seems to me, however, that the medical expenses of $12,100, which are largely reimbursed from the Workers Compensation award received by the plaintiff, should not be also deducted from the assets of the estate. 29 Similarly there appears to me to be, at the very least, a significant degree of unfairness, if not a logical difficulty in deducting from the assets of the estate one half of the joint liabilities in respect of the Fingal Bay house, when the totality of that house, by survivorship, passes to the defendant. 30 Whatever be the amount remaining in the estate, be it as submitted by the defendant, the amount of slightly less than $28,000, or be it, as appears to me a more accurate and correct calculation, about $52,000, that amount has been commingled by the defendant with her own separate assets and has been notionally distributed by her in her capacity as executor to herself in her capacity of beneficiary. The Court is entitled in such circumstances, where that has been a distribution, to make an order against the person who holds the distributed amounts. 31 Since, in my calculation, the amount thus distributed by the defendant to herself is in excess of the amount of $35,000 sought on her behalf by Counsel for Deanne it is not necessary for me to proceed further to a consideration of whether there has, in this case, been a prescribed transaction of the nature contemplated by section 22 of the Family Provision Act. 32    Were it necessary for me to do so, however, my preliminary view is that the deceased appears to have entered into a prescribed transaction by his failure to sever the joint tenancy in the Fingal Bay residence before his death, with the consequence that his interest in that house property would be available, if such were necessary, to be designated as notional estate of the deceased. 33    I consider that the other assets of the defendant which she holds at present and the fact that within a week she will be entitled to receive the age pension, are such that, on account of her competing claim upon the bounty of the deceased, the order for provision which I am satisfied Deanne has otherwise established in an amount of $35,000 should not be reduced or even extinguished. It follows, therefore, that I consider Deanne is entitled to receive, in addition to the legacy already given to her by the will of the deceased, a further legacy in the amount of $35,000. 34    The appropriate order in that regard appears to me to be that the defendant should pay to Deanne the amount of $35,000. I will, however, hear Counsel, if they desire, concerning the form of that order. 35    There remains also the question of costs. The usual order in relation to costs where a plaintiff is successful is that the costs of the successful plaintiff be paid out of the estate of the testator, and the costs of the defendant executor are almost invariably paid out of the estate of the testator. But I will also hear Counsel concerning the costs orders which they submit are appropriate in the circumstances of the instant case. 36    I make the following orders:

1. I order that the time for the institution of these proceedings be extended up to and including 23 July 1997.
2. I order that, in addition to the benefit given to her by the will of the late James Edward Littlejohn (“the deceased”) the plaintiff, Deanne Gai Littlejohn, receive a further legacy in the sum of $35,000.
3. I order that the aforesaid sum of $35,000 be paid to the plaintiff, Deanne Gai Littlejohn, by the defendant, and that such sum not bear interest if paid on or before 24 September 1999, and if not so paid to bear interest at Supreme Court rates.
4. I order that the defendant pay the costs of the plaintiff, Deanne Gai Littlejohn, such costs to be on the party and party basis.
5. I order that the claims of Mark James Littlejohn, David Michael Littlejohn, and Julie Anne Littlejohn, the other plaintiffs, be dismissed.
6. I order that the other plaintiffs pay the costs of the defendant in respect to the claims of the other plaintiffs, such costs to be on the party and party basis.

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Last Modified: 09/09/1999