Lumsden v Sumner
[2012] NSWSC 1440
•30 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: Christine Anne Lumsden v Ian Ross Sumner as executor of the estate of the late Dorothy Jean Lawliss [2012] NSWSC 1440 Hearing dates: 19 September 2012 Decision date: 30 October 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Order for provision made for the plaintiff out of the estate of the deceased by way of a legacy of $135,000. Order the estate to pay the plaintiff's costs on the ordinary basis. Order that the defendant's costs be paid out of the estate on the indemnity basis.
Catchwords: SUCCESSION - family provision and maintenance - whether the plaintiff is an eligible person under Succession Act, s 57(1)(e) - whether the plaintiff, a niece of the deceased, was 'dependant' on the deceased - whether adequate provision made for the plaintiff out of the estate of the deceased - whether an order for provision should be made for the plaintiff under Succession Act, s 59. Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Amaca Pty Ltd v Novek (2009) 9 DDCR 199; [2009] NSWCA 50
Ball v Newey (1988) 13 NSWLR 489
Brown v Faggoter (unreported, NSWCA, 13 November 2011)
Churton v ChristianI (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 115
Drury v Smith [2012] NSWSC 1067
Estate of Hakin; Simons v Public Trustee [2005] NSWSC 223
Evans v Levy [2011] NSWCA 125
Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108
Morgan v Public Trustee [1999] NSWSC 1112
Penfold v Perpetual Trustee [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Porthouse v Bridge [2007] NSWSC 686
Re: Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) (1994) 181 CLR 201Category: Principal judgment Parties: Plaintiff:- Christine Anne Lumsden
Defendant:- Ian Ross SumnerRepresentation: Counsel:
Plaintiff:- B. Ralston
Defendant:- A. Hill
Solicitors:
Plaintiff:- Michael Geoffrey Todd Niven, Baldock Stacy & Niven
Defendant:- Andrew Darryl Dunshea, Messrs Steel & Co
File Number(s): 2011/393352 Publication restriction: No
EX TEMPORE Judgment
Dorothy Jean Lawliss died on 8 December 2010. She had a number of siblings. Among them were two sisters, Margaret Lawliss and Hilda Sumner. At her death Dorothy Lawliss owned two valuable pastoral properties, "Oolong" and "Forest View" via Gunning, in mid-western New South Wales. Dorothy Lawliss was predeceased by both her sisters, Hilda and Margaret. Neither she nor Margaret had children. But Hilda had three children, Christine, Ian and Maree. Dorothy's Will, made approximately a month before she died, gave the whole of her Estate to her nephew Ian and made him her executor. In these proceedings Christine applies under Succession Act, Chapter 3 for an order for provision out of Dorothy's Estate. Ian contests Christine's claim. All the parties to these proceedings are members of the one family. So without intending any disrespect to them, these reasons refer to these family members by their first names.
Mr B. Ralston of counsel appeared for the plaintiff, Christine, in these proceedings and Mr A. Hill of counsel for the defendant/executor, Ian.
The deceased's Estate was sworn for Probate purposes with a gross value of approximately $1.72 million and a net value of $1,715,000. The assets consisted of real estate of $1.63 million, a vehicle valued at $5,000 and livestock valued at $68,000.
A little more background is now required about the family relationships of the parties, before giving consideration to the plaintiff's claim.
Background
The deceased, Dorothy, was born in 1934. Hilda, Dorothy and Margaret were all children of Francis Lawliss and Anita Frances Lawliss. There were other family siblings but they died between 1924 and 1948. Christine was Hilda's eldest child, Maree the next eldest, and Ian the youngest child. Anita Lawliss owned Forest View and Oolong or controlled them through companies from at least about 1960. Corporate searches show her control over those properties.
From about 1972 Dorothy, Margaret and Anita all lived together on these two properties and farmed them. Anita died in 1981. Upon Anita's death the properties were divided equally among her three children - Dorothy, Margaret and Hilda.
In 1985, Dorothy purchased Hilda's share of both properties. Margaret continued to live on them with Dorothy, until she was admitted to a nursing home in 2003. Margaret died in 2005. Upon Margaret's death, the deceased became the owner of both properties, Forest View and Oolong. Thus by about 2005 the deceased was the owner of both properties but living there alone. Hilda moved in with Dorothy at the properties in 2007.
In June 2008 Ian moved into Forest View to assist both the deceased, Dorothy, and his mother, Hilda, in running the properties. Ian is an ambulance officer but had helped out on the farms from time to time over the years, before he moved in on a permanent basis. He was living in Bathurst when he moved to the two properties at Gunning. His wife Louise and son followed him to the properties in December the same year.
From April 2009 the deceased was admitted to a nursing home where she thereafter resided. In July 2010 Hilda died.
Dorothy made her last will on 18 November 2010 and she died on 8 December that year. Probate of this will was granted to Ian Sumner on 5 October 2011. The plaintiff, Christine, commenced these proceedings in December 2011.
The central contest in this case has been about two matters. The first relates to Christine's eligibility to claim against the deceased's Estate. The second is whether or not there are the necessary Succession Act, s 59(1)(b) factors which would warrant the making of her application in this case.
The plaintiff's claim for eligibility based on Succession Act, s 57(1)(e), is that she was wholly or partly dependent upon the deceased and was in 1974 for some time a member of the household of which the deceased was a member. To deal with that issue and the question of Succession Act, s 59(1)(b) "factors warranting", it is necessary to examine the relationship between Christine and the deceased in more detail.
Relationship Between Christine and the deceased
Hilda Sumner and her husband Stan had a financial struggle in bringing up their three children. In 1974 when the plaintiff, Christine, was in her first year at high school she spent most of the year, approximately two and a half of three school terms, living with Anita, Dorothy and Margaret at Forest View and Oolong. The Court accepts the plaintiff's account of this period, which is largely undisputed, although there are some differences of detail in the accounts of the parties.
In about April 1973 Hilda and her husband Stan moved to Tooraweenah, a small town approximately halfway between Gilgandra and Coonabarabran, where they operated the local post office and telephone exchange.
Christine completed sixth class at the local State Public School in Tooraweenah. But in 1974 that school did not cater for High School age students. There were insufficient students locally in Tooraweenah to constitute a high school class. I accept Christine's evidence that, as a result, her aunts Margaret and Dorothy offered to look after Christine and to send her to school for her first year of high school.
I also accept the plaintiff's evidence that her parents could not afford to send her to Mount Carmel College, the local Catholic girls high school at Gunning, a school that Anita, Dorothy, Hilda and Margaret had all attended. So in early 1974 Christine moved to Forest View, enrolled at and then attended Mount Carmel College.
But in about October 1974 Stan and Hilda sold the post office and telephone exchange at Tooraweenah. They purchased the central store at Wentworth Falls. So towards the end of that year, in about late October, Christine moved back to live with her parents at Wentworth Falls. After that she completed her high schooling in Katoomba.
Christine's Time at Forest View
The personal and financial relationship between the plaintiff and the other members of the Forest View household, when she stayed in 1974, is to be inferred from the plaintiff's evidence and from the objective probabilities.
When Christine moved to Forest View, Anita was in her 70's, the deceased, Dorothy was about 40, and Margaret about 51. Dorothy, therefore, was the closest in age to the plaintiff. Anita did not do any farm work and was not involved in operating the farming enterprise on a hands-on basis.
The plaintiff says, and I accept, that during the time that she lived at "Forest View" she was close to Dorothy. She says, and I accept, that she found Dorothy more approachable than Margaret or her grandmother, Anita. It was Dorothy who provided Christine with close emotional support when she was living at Forest View in 1974. Christine says, and I accept, that Dorothy was the one who comforted her when she missed her parents.
Dorothy seems to have been the member of the Forest View household who took day-to-day care and responsibility for Christine in 1974. Dorothy was the one who took the plaintiff to Mass on Sundays for her religious observance. She was the one who took her shopping and bought her clothes. She also took Christine on outings for lunch and tea. She taught her some pastoral skills: how to saddle and ride a horse; how to look after horses' hooves; and how to tend to sick animals. She also assisted Christine with her homework and gave her some of life's more abstract insights: for example, Dorothy mapped out for Christine the constellations of the night sky, and explained their stories.
This relationship between Christine and Dorothy is not entirely surprising, given two objective factors, apart from the plaintiff's evidence on this subject, which I accept. The first objective factor is that the deceased, being closest in age, is the one who was likely in the household to have related best with the plaintiff. Secondly, the deceased clearly was the most active member of the household in a way that would most appeal to a 12-year-old girl.
Christine's memory of the engagement of Dorothy in her life at that stage is convincing, and I accept it. But two other relevant aspects of this period need closer examination.
I infer from the findings about the Forest View household that Hilda entrusted the care of Christine to her sisters and her mother but, as a practical matter, it was accepted at Forest View that Dorothy was the primary care giver to Christine in the Forest View household that year.
That is generally demonstrated by the matters already explained. Dorothy was the most active member of the household. The plaintiff accompanied her shopping, washing up, cooking, and while completing farm work, such as moving herds of cattle and mobs of sheep, arranging sheering, drenching, breeding and the like.
The relationship was plainly a close one. Dorothy fulfilled a role that year which could readily be described as maternal. She certainly helped fulfil the absence of Christine's mother in her life during that period.
Neither of Christine's two siblings Maree nor Ian lived with Dorothy in their early years in the same way as Christine did. Although, as already indicated, Ian did live at Forest View with Dorothy from June 2008 until April 2009 before Dorothy entered the nursing home.
The financial arrangements in relation to Christine's 1974 stay at Forest View, unsurprisingly, are a little unclear due to the passage of time. There was debate about them in the proceedings. They are ultimately not decisive in my view. At this distance it is very difficult to work out what the 1974 household budget must have been. But I accept the plaintiff's evidence that there was an offer to look after the plaintiff and that Dorothy did say to Christine when Christine was at Forest View, that Margaret and Dorothy were paying for her to go to school. There is some conflicting evidence that some of Christine's expenses during her stay were paid for by Hilda. But whatever Hilda paid she cannot have covered all Christine's expenses of accommodation, living, clothing and the like. The evidence indicates that Hilda may have paid some board and allowance but that is all. But in my view there was both emotional and financial dependence by the plaintiff upon Dorothy at this time.
The contention is put that as the properties, Forest View and Oolong, were owned by Anita or by companies she controlled, that Christine's dependence was solely upon Anita or possibly Margaret, not Dorothy. But, in my view, an examination of the legal principles makes it clear that this was a case of dependence upon the deceased, Dorothy, in 1974.
Whether Christine is an Eligible Person?
To succeed in these proceedings Christine must first establish that she is an "eligible person" under Succession Act, s 57(1)(e), which provides as follows:-
"57 Eligible persons
(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person:
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on 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 the household of which the deceased person was a member, "
There is no doubt that in 1974 the plaintiff was a member of the household at Forest View in which the deceased was a member. The real issue for Christine's case under Succession Act, s 57(1)(e)(i), is whether or not there was dependence.
The defendant, Ian, gives evidence that in late 2009 Hilda said to him that Stanley and Hilda had to pay board for Christine when she stayed with Anita, Margaret and Dorothy in 1974. But even this statement does not contradict Christine's case that Dorothy, Margaret and Anita were subsidising Christine's school fees. Christine's accommodation, sustenance and other care were additional. In my view Christine was at least partly financially dependent on Dorothy, Margaret and Anita at this time.
The applicable law in relation to dependence has been defined in authority to embrace concepts of both material and financial dependence as well as emotional dependence. These cases start with Petrohilos v Hunter (1991) 25 NSWLR 343, and their course is well summarised in Hallen AsJ's recent decision in Drury v Smith [2012] NSWSC 1067. In my view, there is dependence here, both in the material sense and in a wider emotional sense. Dorothy facilitated the provision of accommodation for Christine in a practical sense. The plaintiff was entrusted on a day to day basis to Dorothy's care. But the deceased also gave her guidance, advice and provided a maternal substitute for an important year of her life.
First, the breadth of the concept of dependence in this statutory context is clear from the test stated in Petrohilos v Hunter, a case under the former legislation, Family Provision Act, s 6. In that case Hope AJA, with whom Clarke and Sheller JJA agreed, explained (at 346) the width of the concept of dependence embracing, as it does, more than just material dependence:-
"I would respectfully disagree with the master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholy or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McLelland J said in Re Fulop Deceased or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989,unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."
Given the Court's findings, in my view, Christine was 'dependent' on Dorothy in the ordinary sense of the word discussed by Hope AJA: she depended on Dorothy for what was needed in her life at that time.
Dependency can be satisfied even where only part of the claimed dependent's needs are being met by a person on whom the dependence is said to exist. Samuels J said in Ball v Newey (1988) 13 NSWLR 489, at 492:-
"'Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455."
Of course the statute itself here emphasizes that the dependency may be partial: Succession Act, s 57(1)(e), "wholly or partly dependent".
Dorothy's informal role in loco parentis is not an obstacle to a finding that Christine was dependent upon her. Campbell J explained in Amaca Pty Ltd v Novek (2009) 9 DDCR 199; [2009] NSWCA 50 at [44], based on earlier authority, how a legal duty to maintain can exist independently of dependence in law:-
"In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:
'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"
A relationship of material dependence within Succession Act, s 57(1)(e) is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves". Here Dorothy who took Christine on her shopping excursions was the one who made the purchases for her, and thereby set a standard of material support for Christine. The evidence establishes, in my view, that Christine relief on Dorothy to look after her in a manner, so she should be described as Dorothy's "dependent" within the Act at that time.
There were a series of contests that must now be examined before looking at whether or not there are "factors warranting" the making of this application within Succession Act, s 59(1)(b). If such factors are established, the next question is whether Christine has established that there has been an inadequacy of provision for her under Dorothy's Will. Most of these issues related to events in recent years. There is little contest about Christine's account of early events other than the extent to which I have mentioned.
Christine and Dorothy
The Court's findings about Christine's family circumstances and her relationship with Dorothy are now set out in more detail.
The plaintiff was born in March 1962. She is the eldest of the three Sumner children. Maree was born in November 1963 and Ian was born in February 1965. They are the only surviving relatives of the deceased. Ian and the plaintiff stand in equal blood relationship with the deceased. Christine says that the deceased and Margaret were very close aunts to her and "because they had no children of their own to some extent they treated us as their children. They showered us with gifts as children".
Ian disputes the latter part of this statement. I am inclined to prefer Ian's evidence as to that aspect over Christine's. As Ian says, there are a number of indications that Margaret and Dorothy, the children's two spinster aunts, were very careful with their money. There is no evidence of them making large gifts during the children's lifetime. The story Ian tells about their approach to gift giving is consistent with other evidence, about their well-developed financial prudence. In any event the mere giving of gifts would not establish Christine's financial dependence: Estate of Hakim; Simons v Public Trustee [2005] NSWSC 223.
I accept Ian's evidence, and that of Maree, that the deceased and her sister Margaret were private people who were not overly demonstrative with Hilda's children. But Hilda's children were nevertheless recognised by the deceased as her closest living relatives. Dorothy was probably as or more generous with them as she was with any other relative or friend.
The plaintiff left school at the end of year ten and completed the School Certificate. After leaving school she worked briefly as a telephonist for about 12 months, then as an office assistant and proof reader for a local newspaper for about 18 months. Then she worked in semi-skilled employment in a light bulb factory.
Christine has had four children. Her husband, Tim, has been an interstate truck driver, although he is now in receipt of a disability pension. Her four children were born in 1980, 1981, 1990 and 1994.
After 1981
There are differences between the parties about what has happened since Anita's death in 1981. These differences can be placed under a number of headings: gifts, contact with Dorothy, Christine's conduct and statements made to her, Dorothy and Ian, Margaret's funeral, and Dorothy's other relationships.
Gifts. The Court has generally accepted Ian and Maree's evidence about their aunt's level of gift giving. However, I do accept Christine's evidence, and that of her husband, that Dorothy sent regular cards and gifts to Christine and their children over many years. But I would not accept that she was showered with gifts from the deceased.
Contact between Christine and Dorothy. The next area of contest is the degree of contact that took place in recent years between Christine and Dorothy, together with the issue of the assistance she and Tim gave to Dorothy.
Except for recent times, the contest here is one where the defendant, Ian, is not in a position to deny what Christine says. And I generally accept her evidence and her husband's evidence about the frequency of their visits to see Dorothy and Margaret and about the work which they did from time to time to assist around Forest View.
But Ian says that there was little contact in later years, especially from the time that he was at Forest View from about mid-2008. Ian's evidence about this later period is right. The way that the evidence is to be reconciled is that both the plaintiff and her husband have spent some periods of imprisonment for criminal offences. The evidence also shows that Dorothy expressed disapproval of their criminal conduct from time to time, in recent years. In the last five or so years of the deceased's life, the degree of disapproval of Christine's criminal conduct and that of her husband seems to account for the decline in their visits to Forest View. On the other hand there were many years, after Anita's death, of visits and assistance by Tim and the plaintiff to the deceased and to Margaret. I accept Tim's evidence that he and Christine visited Dorothy and Margaret at Forest View approximately four or five times a year over these years and helped out with odd jobs. These jobs included fixing gates, verandahs and other handyman tasks. Tim Lumsden recalls fixing tea pots, dining chairs, handrails, stairs, wool shed items, gates, cattle yards, welders, radios, verandahs, and lawn mowers. The practical value to Dorothy and Margaret of the completion of these tasks, particularly in the late 1990's and early 2000's when they were becoming elderly, was substantial. Dorothy was suffering from arthritis by then, although she had plainly prided herself on being active especially in her early years.
Tim's evidence on this subject is supported by their son Russell, who was not cross-examined and whose evidence of his parents' regular handyman and practical assistance to Dorothy I accept.
I also accept Christine's own account of these visits and the contribution that she and her husband made there. As she explained, she and her husband from time to time attended Forest View and Oolong at the deceased's request. I infer that Dorothy made these requests because she judged their help was useful to her. Christine adds that she and Dorothy spoke on the telephone some three or four times a year and on a regular basis helped out, when needed. There was a challenge to her account of the degree of contact that took place, particularly in the last few years. Under cross-examination she retracted a little of her statement of the number of times that she attended the properties after Margaret died in 2005. But I accept the correctness of Christine's evidence as to the regularity of her visits until about 2005.
Christine's conduct and statements made to her. There does seem to have been a souring in the relationship between Christine and Dorothy in the last few yeas of Dorothy's life. This too was a time when Ian was becoming closer to Dorothy, especially from 2008. The precise reasons for Dorothy's change in sentiment towards Christine and Tim need not be examined. But they are to be partly explained by a hard working person such as Dorothy disapproving of some of the personal conduct of Christine and her husband.
This seems to have only been a more recent attitude on her part. For many years Dorothy made express or implicit statements to Christine that she may well benefit from Dorothy's estate. I do not accept Dorothy made all of the statements attributed to her. But I do accept, as Christine says, that Dorothy said to her on a number of occasions words to the effect, "Chrissy there is always a place for you here. The farms have to stay in the family", more than once when Christine visited Forest View. But I do not accept that such things were said around mid-2009. In a successful cross-examination on this aspect of the evidence Mr Hill established that these statements were not made to Christine in the last years of Dorothy's life. Christine says that she visited the deceased in mid-2009, to help on the farms, but I do not think that happened. I accept Ian's evidence that he was there from 2008 and cannot recall an occasion when Christine returned to the farm after then. A change in Dorothy's willingness to make such statements to Christine is consistent with the late cooling in their relationship.
I accept Tim Lumsden's evidence that on an occasion of a visit to Forest View, when Christine, he and Dorothy were coming out of a shearing shed that Christine said to Dorothy words to the effect, "You really need to fix that door". The deceased replied to her words to the effect, "Chrissy, one day this will be yours so you can fix it then".
I accept Tim's evidence that on another occasion Dorothy said to him, when they were standing near a clearing, on Forest View, words to the effect, "This [pointing to the clearing] will be a great place to build a house", as the deceased gave him a friendly dig in the ribs. After Christine had spent a period in gaol Dorothy and Hilda, who was then also living at Forest View, visited Christine's family. Despite Christine's conduct they brought a slaughtered beast from the farm and were asking how Christine was going. This is an important moment. Despite Christine's recent anti-social conduct it shows Dorothy participating in a concerted effort to keep up her relationship with Christine and her family.
There are disputes about what happened at Margaret's funeral in 2005 and about the conduct of Tim and Christine there. But beyond these disputes I accept Tim's evidence that the deceased in a moment of slightly black humour about Christine's breaches of the criminal law took Tim by the arm for a tour around the cemetery where Margaret was buried and showed her the graves of some other relatives saying to Tim, "This is where our outlaw relatives are buried".
Ian is preferred. The other factor, in my view, which explains the change in attitude on the deceased's part is the fact that it was evident to the deceased, that Ian was the logical person, the most reliable and best qualified, educated to take over the farms after her death. Somewhere between 2005 and 2007 it seems to me that she formed the view that he would be the one who would take over the farms. This also partly explains the displacement of Christine in Dorothy's affection and expressions of testamentary bounty.
There are many reasons why this was a natural choice for Dorothy. Ian says he did contribute as a young adult working on the farms often on an unpaid basis. I accept he did. He returned in mid-2008, when the deceased was less able to do anything for herself. After the deceased was hospitalised in 2009 he did all the Forest View work himself, assisted by friends and neighbours. I accept that by 2007 the deceased was actively speaking to Ian about taking over the farm and saying things such as, "Are you still right to take over the farm?" to which he gave his assent. But I do not regard the statements made to him as inconsistent with the statements made to Christine. Nor are they a reason necessarily to disbelieve what Christine says. I generally accept Christine's evidence about the making of these statements. Viewed overall, Dorothy's statements to Christine intimated to her that she would have some benefit from the properties after Dorothy's death, but that they would still go to Ian.
I am conscious of her criminal convictions, although the precise nature of these are not clear from the evidence. I am conscious of the fact that some of the statements that she has made are the uncorroborated statements of the deceased. Although there is corroboration of much of what she says from her husband.
Ian prepared himself to take over the properties. As indicated, he decided to move back to Forest View in 2008, partly at Dorothy's request, partly to be better able to work on the farms, and partly upon an understanding that those farms would be his after Dorothy passed away. He and his wife, Louise assisted Dorothy with her entry into care and gave her some financial support when farming funds were not sufficient.
Margaret's Funeral. Ian gives evidence of an unpleasant incident at Margaret's funeral. Christine gives evidence, as does her husband, about the same incident. There was some disagreement about what happened on that occasion, when no doubt emotions were running high. But it is not something I have to decide. I generally accept the plaintiff and Tim's evidence that they were not, as alleged, either smoking marijuana or getting drunk on that occasion. Such occasions are likely to generate exaggerated views about behaviour of persons present and I do not weigh that incident heavily either way.
Other Relationships with Dorothy. Finally, I deal with the relationships of the parties with Dorothy. On Ian's side it is evident that his wife Louise also had a good relationship with the deceased. I accept her evidence about that and the detail about the relationship.
The other family member, Maree, has also given evidence that she was not particularly close to her aunts. She supports the view that in her later years Dorothy disapproved of Christine's criminal activity.
It seems to me that this also had an effect on Christine. In the last few years of Dorothy's life Christine reacted to Dorothy's attitude and was not in regular contact with her, so much so that the plaintiff was not at Dorothy's funeral.
Maree gives evidence that a few weeks after Dorothy died Christine telephoned her and asked after Dorothy. Maree says she told Christine that Dorothy had died "before Christmas last year". This somewhat surprising evidence was advanced in the defendant's case. I accept its correctness. It is another basis for inferring what I have that the relationship between Christine and Dorothy declined in the last couple of years. But it is also startling evidence that Maree and Ian had attended the deceased's funeral and were well aware of that event, but did not ensure that Christine was told of it. Curiously Ian did not inform his sister Christine of the death or the funeral.
Christine and Tim Lumsden's Present Circumstances
Christine's present circumstances are not good either medically or financially. Her most recent employment was as a casual cook at the local hotel for about three months, about three years ago. The plaintiff and her husband, Tim, live on a half acre block on the Castlereagh Highway at the village of Birriwa, near Dunedoo. Birriwa has a population of only about 14. Christine and Tim Lumsden's house at Birriwa has two bedrooms, with a bathroom off the back verandah and a detached old country-style non-flushing toilet. There is no installed electric power to the bathroom or the toilet, so an extension cord is connected to a light to illuminate those rooms. Photographs of their house have been tendered. It is quite evident that it is a modest, spartan and sparsely furnished residence.
I accept that Christine has the condition of 'tennis elbow' in both arms, tendonitis in both shoulders and arthritis in her neck. She is also a carer for her husband, who no longer works as a truck driver and whose health is not good. Tim Lumsden experiences double vision as a result of a work accident in 1994. He also suffers from chronic low back pain and tendonitis in the left elbow, as a result of a car accident in 2001. He also suffers from depression.
I also accept the account Christine gives of her assets and liabilities, and of her income and expenditure. Her and Tim's assets are as follows:-
House at [address not published] Birriwa $30,000
1987 Commodore $2,000
Honda motorbike $1,000
Harley-Davidson motorbike $18,000
Furniture & household effects $5,000
She has a Commonwealth Bank account the balance of which fluctuates between $5 and $520 per fortnight, as her pension is paid. Her husband's NAB Bank account as a balance which fluctuates between $5 and $550 per fortnight as his pension is paid.
Christine and Tim Lumsden's household budget just breaks even, as the detail below shows:-
INCOME
Tim's disability pension $549.70 p/ft
Christine's carer's payment $549.70 p/ft
$1,099.40 p/ft
EXPENDITURE
Phone $41.00
Internet $15.00
Rates $20.00
Electricity $86.00
Gas $20.00
Petrol $90.00
Car (rego & maintenance) $50.00
Food $200.00
Clothes & gifts $50.00
Cigarettes $160.00
Alcohol $90.00
Medical expenses $100.00
Prescriptions $32.00
Pets $40.00
Yard maintenance $10.00
Wood $8.00
$1,012.00 per fortnight
Credit card payments $40.00 per fortnight
There is no room for unforseen expenditure in this budget.
Christine has immediate and pressing financial needs. She wishes to perform extensive renovations to the house. The photographs of the house demonstrate that it would benefit from considerable renovation in order to make it comfortable. She has identified, and I accept, real material needs to make the place qualify for even a minimum of human comfort: putting on of a new roof; fitting out an internal bathroom; a toilet and a septic system; new carpet throughout; a new kitchen, appliances and insulation, installation of air conditioning, re-cleaning insect screens, adding a garage, a work shed, water tanks and a pump. I accept Christine's evidence about these needs.
I also accept Christine's estimate that it would cost about $300,000 fully to renovate or rebuild this property. She also claims a contingency fund to provide a financial cushion for unforeseen circumstances and some security for her future. She identifies the need for a new car as well. Neither she nor her husband have travelled.
Financial Position of the Defendant
Before proceeding to the legal issues, the last factual matter that needs to be dealt with is the current financial situation of the Estate, and of Ian and Louise. Maree has not made a claim against the Estate.
The current financial position of the Estate has been accounted for as at September 2012. The Estate's position is as follows:-
ASSETS
Real Estate 'Forest View' $760,000.00
Real Estate 'Oolong' $870.000.00
Cash at Bank $129,416.00
Motor Vehicle $5,000.00
Livestock $76,000.00
Total $1,840,416.00
LIABILITIES
Ian Sumner $15,050.56
Steele & Co Solicitors - Estate Administration $8,598.99
First Registered Mortgage - Forest View $300,000.00
Total $323,649.55
Estate Total $1,516,766.45
The first registered mortgage shown there has been taken out in part to defray debts of Ian and Louise arising in part out of a failed business. Ian and Louise have explained the circumstances of that comprehensively in their affidavits. No issue is taken as to whether Estate assets should have been used this way and I pass over it.
Ian's income as an ambulance officer has varied over recent years; in 2008 it was some $78,000 gross before tax, in 2009 $74,000 gross, in 2010 and 2011 some $90,000 gross, and in 2012 some $102,000 gross.
Louise's average annual income has been of the order of $46,000 to $48,000 in recent years.
There is no doubt Ian and Louise still owe debts consequent on a past business failure. But it seems to me that their debt situation will largely resolve itself by Ian's substantial inheritance through Dorothy's Will.
There is some cash in the Estate. The evidence is that cattle and sheep are run on the Estate properties Forest View and Oolong, from which a modest income could be earned over time. The evidence is that there are about 140 to 150 cattle although the majority of the properties are used for sheep grazing. Some of this livestock currently belong to the Estate and some to Ian and Louise. Ian's evidence was that Oolong could run about 150 fully grown cattle. Oolong lends itself more to cattle-grazing. Forest View's pastures are more suitable for sheep. Forest View could handle about 500 to 600 sheep and a small amount of cattle.
So in addition to Ian's earnings from his career as an ambulance officer and Louise's continuing income, there is some capacity to earn income from Oolong and from Forest View to pay down their existing debt without selling the two properties, even without there being much spare cash left in the estate.
The parties have provided two figures for their legal costs up to the end of the hearing. These figures are quite reasonable in the circumstances of this case, given the extent of the legal work undertaken on both sides. Mr Dunshea's affidavit indicates the defendant's costs to the conclusion of the hearing will be $61,000. And Mr Niven's affidavit gives a figure of $55,000 for the plaintiff's costs up to the same point.
Factors Warranting Provision from the Deceased's Estate
Christine must establish "factors warranting" her application. If the Court is to proceed to grant any order for provision, the requirement of "factors warranting" is provided for by Succession Act, s 59(1):-
"(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
The question of what are "factors warranting" has bedevilled the Courts since family provision legislation was first passed in this form in 1982. The vagueness of this aspect of the legislation has been much criticised. Despite that legislative defect, the law has become more certain through judicial exposition.
The classic statement explaining what are "factors warranting" is that of McLelland J, as His Honour then was, in Re: Fulop Deceased (1987) 8 NSWLR 679: that the factors are, when added to the facts that make the applicant an eligible person, factors which give the applicant the status of a person who would generally be regarded as a natural object of testamentary intention by the deceased. See also: Churton v Christian (1988) 13 NSWLR 241, Diver v Neal [2009] NSWCA 115, Penfold v Perpetual Trustee [2002] NSWSC 648, Evans v Levy [2011] NSWCA 125, Porthouse v Bridge [2007] NSWSC 686 per Bryson J, Drury v Smith per Hallen AsJ, Morgan v Public Trustee [1999] NSWSC 1112 per Macready AsJ and Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108. These authorities indicate that the traditional Re Fulop view of "factors warranting" has been in competition for some years with the Court of Appeal's statements in Brown v Faggoter (unreported, NSWCA, 13 November 2011) which offer another test of "factors warranting": that an application might be warranted if the applicant has reasonable prospects of success.
This conflict has been commented on in the Court of Appeal, in Evans v Levy [2011] NSWCA 125, and in Porthouse v Bridge by Bryson J. I agree with Hallen AsJ's view that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said that Brown v Faggoter is wrong.
It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant.
In my view, in this case, there are factors warranting the making of this application in accordance with Succession Act, s 59. The factors warranting that I identify are the following. They overlap with matters that support the success of Christine's application.
First, I have accepted the plaintiff's evidence about the promises Dorothy made to Christine about her benefiting on Dorothy's death. In my view those promises were made over a lengthy period of time, although they seemed to peter out a few years before her death. But they were made for some years, in a way which recognises Christine as an object of Dorothy's testamentary bounty.
Secondly, there was a relationship of dependence where in a practical sense Dorothy took on a maternal role towards Christine, although for a short time and quite a long time ago. It was a formative relationship Dorothy had with Christine that she did not have with either Maree or Ian.
Thirdly, Christine has, in my view, significant and real needs for adequate provision for her proper provision and her advancement in life. Together with the comfortable size of the deceased's estate, in my view this is a case in which, if found to be an eligible person, Christine has strong prospects of establishing a case for provision under the Succession Act. This is not a decisive consideration but, in my view, is nevertheless a relevant consideration and is a factor warranting.
Fourthly, the continuing relationship between Christine and Dorothy was recognised through their continued contact, which seems to have been sought in both directions over the years. Although the relationship soured to a degree near the end of Dorothy's life, there are examples of Dorothy looking past her disapproval of Christine and visiting her family to maintain contact and their relationship, even when Christine was in gaol.
Fifthly, in this somewhat unusual case, Christine and Ian stand in the same blood relationship to the deceased. They are respectively Dorothy's niece and a nephew. To the extent that Dorothy's testamentary intentions favoured Ian because of their mutual blood relationship, such recognition of Ian's blood relationship with Dorothy is an equal argument for the recognition of Christine's identical blood relationship. Ordinarily, a niece or nephew might not be thought to be a natural object of testamentary bounty. Where there are closer relatives that would usually be the proper conclusion. But in this case, by making the Will in Ian's favour as she did, Dorothy recognised that the relationship of niece and nephew with Ian was one of natural testamentary bounty. And, in my view, it is a factor warranting in this case. In short, Christine stands equally with Ian as one of the three closest surviving relatives of the deceased.
In my view there are "factors warranting" the making of this application and Succession Act, s 59 is satisfied.
Adequate Provision
The final questions now relate to whether an order for provision should be made in Christine's favour. The test of whether provision should be made in any case is set out in Succession Act s 59(1)(c):-
"(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
...
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:-
"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 Co8. The determination of the first stage in the twostage 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 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. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Christine once she has been shown to be an eligible person.
Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith at [153], [154], [155], [158] and [160], which relevantly provides:-
"[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...
In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"
[154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
[155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
...
[158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
...
[160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
That then leaves the Court to decide what is appropriate provision in this case. Christine's immediate need for some capital to improve her present living circumstances is undoubted. Such capital would provide her with some basic comforts in life that most people in our community currently regard as necessities: for example a proper flushing toilet with electric light and renovations to keep her house warm and draught-free at night from winter winds. Christine and her husband have no way of providing these necessities themselves without access to some further capital.
The plaintiff has identified a number of alternative properties, which could accommodate herself and her husband to provide for them and their grandchildren when they visit. The asking price of these properties ranges between $240,000 and $375,000.
What is the appropriate standard in this case to meet the statutory test? In my view the plaintiff has not had adequate provision for her proper maintenance or advancement in life because of her needs identified earlier and her current somewhat impoverished situation.
Mr Hill has submitted that to give figures such as the kind Christine has sought in the range $240,000 to $375,000 to provide a replacement house is, in effect, to treat the plaintiff at the same level as a spouse of the deceased: see for example, Luciano v Rosenbloom (1985) 2 NSWLR 2, per Powell J. Mr Hill submitted that if factors warranting were to be established his submission was that a much smaller legacy of the order of less than $50,000 would be all that was appropriate.
The case is a difficult one. In my view a testator in Dorothy's position would have looked past some of Christine's criminal behaviour but there clearly had been a souring of relations.
But on the other hand, in my view, the amount Christine seeks to find alternative accommodation and provide her with a fund for contingencies go beyond providing for her adequate and proper needs, and should not be awarded here. But adequate and proper provision means Christine should not be left with something as nominal as the defendant has submitted should be the result.
In my view there should be a legacy in a sum sufficient to provide the plaintiff with some of the identified material comforts and conveniences for her future life and with a little cash left over to her for contingencies. This should be assessed on the basis of where she is now living. It is not assessed on the basis of buying her a new residence. The Court will therefore order by way of provision out of the Estate that the plaintiff will have a legacy in the sum of $135,000.
The usual orders for costs will be made upon a successful application of this kind. I see no reason to vary the usual order here. The plaintiff will have her costs on the ordinary basis against the estate. The executor/defendant will have his costs out of the estate on the indemnity basis. Exhibits may be returned.
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Decision last updated: 27 November 2012
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