Lumsdon v Gargano
[2012] NSWSC 1169
•23 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: Lumsdon v Gargano [2012] NSWSC 1169 Hearing dates: 18, 19 September 2012 Decision date: 23 October 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (i) Having found that the Plaintiff is an eligible person, being satisfied that there are factors which warrant the making of her application, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the estate of the deceased, a lump sum of $195,000.
(ii) Order that the provision made for the Plaintiff should be borne by the residuary estate.
(iii) Order that no interest is to be paid on the lump sum if that lump sum is paid within 28 days of the making of these orders, or within such other time as the parties agree or the court otherwise orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iv) Order that the costs of the parties shall be determined after further submissions unless agreement is reached between them.
(v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above.
(vi) Order that the Court Book be returned.
(vii) Stand over the proceedings for the argument on costs.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the stepdaughter of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant, the natural daughter is the executrix to whom Probate granted - No dispute as to eligibility - Dispute as to factors warranting the making of the application - Period of about 13 years before deceased's death when no contact - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne Legislation Cited: Family Provision Act 1982
Powers of Attorney Act 2003
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 1981 (Qld)
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Anasson v Phillips (NSWSC, 4 March 1988, unreported)
Andrew v Andrew [2012] NSWCA 308
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164
Buckland deceased, Re [1966] VR 404
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Curran v Harvey [2012] NSWSC 276
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Evans v Levy [2011] NSWCA 125
Fede v Dell'Arte [2010] NSWSC 1113
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Freeman v Jaques [2005] QCA 423; [2006] 1 Qd R 318
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Fulop Deceased, Re (1987) 8 NSWLR 679
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (NSWSC, 20 February 1987, unreported)
Hampson v Hampson [2010] NSWCA 359
Hunter v Hunter (1987) 8 NSWLR 573
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Lathwell v Lathwell [2008] WASCA 256
Lumb v McMillan [2007] NSWSC 386
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palaganio v Mankarios [2011] NSWSC 61
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Penfold v Perpetual Trustee [2002] NSWSC 648
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Sammut v Kleemann [2012] NSWSC 1030
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack-Smith v Slack-Smith [2010] NSWSC 625
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Wheatley v Wheatley [2006] NSWCA 262
Wilcox v Wilcox [2012] NSWSC 1138Category: Principal judgment Parties: Nancy Olive Lumsdon (Plaintiff)
Chiara Gargano (Defendant)Representation: Counsel:
Mr F Austin (Plaintiff)
Ms M Tibbey (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Logical Legal Solicitors & Barristers (Defendant)
File Number(s): 2011/346836
Judgment
The Claim
HIS HONOUR: These are proceedings commenced by Nancy Olive Lumsdon, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") upon the basis that she was a person who was a member of the household of Vito Michele Gargano ("the deceased") and who was wholly, or partly, dependant upon him at that, or other, particular time. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
The Plaintiff commenced the proceedings by Summons filed on 31 October 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).
The Defendant named in the Summons is Chiara Gargano, a child of the deceased by his second marriage, and the executrix appointed in the Will of the deceased to whom Probate was granted. The Plaintiff is the daughter of the first wife of the deceased by her prior marriage.
Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, only to the Plaintiff and the Defendant by her role in these proceedings, and to other family members, or witnesses, after introduction, by her, or his, given name.
In this matter, judgment was to be delivered on 2 October 2012. On 28 September 2012, the Court of Appeal delivered its judgment in Andrew v Andrew [2012] NSWCA 308. I directed my Associate to inform the parties' legal representatives of that judgment. Each then informed me that counsel (one of whom was not available) would wish to consider whether any further submissions should be made. I allowed them an opportunity to do so, and if thought necessary, to make those submissions. I made directions regarding the filing and serving of written submissions.
Submissions were subsequently received and I have read them carefully.
Formal Matters
The following facts are uncontroversial.
The deceased died on 5 February 2011. He was then aged 84 years, having been born in January 1927.
The deceased came to Australia, from Italy, in about 1950 and remained living here for the remainder of his life. In about 1952, he commenced work with the Australian Gas Light Company as a plumber and gasfitter. In July 1990, he retired from the Australian Gas Light Company after 38 years of continuous service.
The Plaintiff, the Defendant, and others, described the deceased as "old fashioned" and "conservative". He was also described as a person who held "strong views" about different things, including the need for people to look after themselves and not seek financial assistance from the government. He also had what might be regarded as outmoded views on how property of married couples should be held.
The deceased met, and commenced a relationship with, Olive Eve May Davis, in about 1955. (The precise date of the commencement of the relationship is not entirely clear.)
Olive had married Harley Kevin Davis in September 1948. There were two children of their marriage, one being Jeffrey Davis, who was born in March 1949 and the other being the Plaintiff. In December 1955, a divorce order was made in respect of the marriage.
The deceased and Olive commenced a de facto relationship not long after they met. The deceased moved into the accommodation rented by Olive in Boundary Street Croydon. The household then consisted of the deceased, Olive and her two children.
The deceased and Olive married each other in May 1971.
Olive died in October 1989.
In the period between 1957 and 1989, the following properties were purchased in the deceased's sole name:
Date of purchase
Property address
19/02/1957
Waratah Street, Granville
15/07/1960
Waratah Street Granville
16/03/1962
Boundary Street Croydon
25/01/1968
Queen Street, Croydon
05/04/1974
Burns Street, Croydon
12/09/1984
Blair Avenue, Croydon
It was these properties that were owned by him at the date of his death.
Jeffrey's evidence was that he had been told that the landlord had offered Olive the opportunity to purchase the Boundary Street property and that it was then purchased in the deceased's name.
In August 1990, the deceased met Bernadette Batoon. They married in November 1990. There was only one child of their marriage, namely the Defendant, who was born in February 1992.
At the time of her marriage to the deceased, Bernadette had no property of her own.
The deceased left a Will that he made on 22 October 2010, Probate of which was granted, to the Defendant, on 19 May 2011, by this Court. By that Will, the deceased left:
(a) A legacy of $50,000 to Amy May Davis, a child of Jeffrey, who was described by the deceased as a "friend" in the Will.
(b) A funeral plot at Rookwood Cemetery to the Defendant.
(c) The residence and household effects, at Queen Street Croydon, which was the former matrimonial home, to the Defendant, on trust to permit Bernadette to live there until she remarried, started to live with someone on a bona fide domestic basis without being married, or until death, whichever was earlier, subject to her keeping the residence secured, maintaining it in a reasonable state of repair, insuring it, and paying all regular outgoings on it. Thereafter, the residence passed to the Defendant absolutely. The Defendant could end the right of residence if, in her opinion, Bernadette became medically unfit to reside there and had vacated, if she abandoned the residence (i.e. did not live there for at least six months), if she persistently and wilfully refused to meet her obligations as resident, or if she advised the Defendant, in writing, that she wished to give up her right of residence.
(d) The Defendant with the right to provide a substitute residence, for Bernadette, the substitute residence to be held on the same conditions.
(e) The rest and residue of the estate to be shared equally between Bernadette and the Defendant.
No provision was made for the Plaintiff, and she was not referred to, otherwise, in the deceased's Will.
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as having an estimated, or known, gross value of $4,387,238. No liabilities were disclosed. The estate was said to consist of the five different parcels of residential property (with a total value of $3,270,000), all of which were rented, the former matrimonial home, specifically referred to in the Will ($1,100,000), money on deposit ($5,488), shares in companies ($750) and a car ($11,000). (I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)
In an affidavit sworn on 12 September 2012, by the Defendant, she disclosed that the deceased held several bank accounts with Bernadette at the date of his death, the amounts in which accounts passed, by survivorship, to Bernadette. The total sum held in these joint bank accounts was $808,944. In an affidavit filed on the second day of the hearing, the Defendant also disclosed that interest earned on these accounts, since the deceased's death, totalled $46,571.
In addition, an amount ($235,980) due under a mortgage granted jointly by the deceased and Bernadette over a property in Bankstown, to third parties, will be repayable, in due course, to Bernadette. In the affidavit filed on the second day of the hearing, the Defendant disclosed that $16,100 has been paid to Bernadette in reduction of the mortgage debt since the date of the deceased's death.
The parties, initially, agreed that the deceased's estate at the date of hearing consisted of the property owned at the date of death. They agreed also, that the gross value of the estate remained the same ($4,387,238).
After the Court raised the question of what had happened to the rent from the five residential properties since the date of the deceased's death, the Defendant, in the affidavit filed on the second day of the hearing, stated that the current nature and value of the assets and liabilities of the estate were as follows:
Assets of the Estate:
(a)
Blair Avenue, Croydon
$1,075,000
(b)
Boundary Street, Croydon
$ 710,000
(c)
x Waratah Street, Granville
$ 340,000
(d)
xx Waratah Street Granville
$ 340,000
(e)
Burns Street, Croydon
$ 790,000
(f)
Queen Street, Croydon
$1,125,000
(g)
IAG shares
$ 750
(h)
Dividends on IAG shares
$ 262
(i)
Toyota Camry
$ 6,900
(j)
Rent on rental properties
$ 132,377
(k)
Commonwealth Bank
$ 5,488
Total
$4,525,777
The Defendant also asserted in the same affidavit that certain liabilities had been paid, on behalf of the estate, since the date of the deceased's death, by Bernadette (who will be reimbursed in due course out of the assets of the estate):
(a)
Office of State Revenue
$ 32,000
(b)
Legal costs (2011/346836 & 2012/27080)
$ 34,915
(c)
Legacy to Amy Davis
$ 50,000
(d)
Settlement proceeds to Jeffrey Davis in proceedings 2012/27080
$212,500
(e)
Council rates for properties
$ 14,115
(f)
Water rates for properties
$ 5,509
(g)
Insurance for properties
$ 6,600
(h)
Funeral expenses
$ 16,261
(i)
Repairs to Blair Avenue
$ 45,590
(j)
Repairs to xx Waratah Street
$ 1,002
Total
$418,495
(Jeffrey had brought proceedings for a family provision order under the Act that were settled.)
In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, as executrix, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate.
The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be about $93,901 (inclusive of GST and upon the basis of a three day hearing).
The Defendant's costs and disbursements of both proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be about $79,220 (inclusive of GST and upon the basis of a three day hearing), of which $34,915 has already been paid out of the estate, leaving a balance of about $44,305.
The parties also agreed that if an order for provision is made for the Plaintiff, as well as a costs order for each of the parties, it may be necessary to sell at least one, and perhaps two, of the properties (both at Granville and each with a value of $340,000). (If only one is sold, one half of that amount expressed as costs of sale should be used to calculate the net distributable estate.)
The following additional anticipated expenses therefore, were estimated:
(a)
Estimated legal costs of Plaintiff
$ 93,901
(b)
Balance of estimated legal costs of Defendant
$ 44,305
(c)
Costs of sale of two properties (if required)
$ 20,960
Total
$159,166
The parties, thus, accepted, for the purposes of the hearing, that I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of such anticipated expenses, will be about $3,948,116. (The estimated value of the estate will be increased by $10,480 if only one property is sold.)
Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.
The persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties, Bernadette, and Jeffrey. Jeffrey has been served with a notice of claim and has settled proceedings that he brought under the Act. The parties agree that the provision made for Jeffrey and for Amy is not to bear the burden of the provision, if any, made for the Plaintiff, or any part of the costs of the proceedings.
The Defendant does not dispute that the Plaintiff is an eligible person within the meaning of the Act.
Only the Plaintiff has continued proceedings under the Act. Clearly, the Defendant, as a party, is aware of the proceedings, as is her mother, Bernadette, each of whom has sworn, or affirmed, at least one affidavit that has been read in the proceedings. The Act (as will be seen) provides that since each has not commenced proceedings, I may disregard her interests as a person in respect of whom an application for a family provision order may be made. However, the Court is not permitted to disregard her interests as a beneficiary.
Since the amount for which Jeffrey's proceedings were settled at mediation, has been paid, and as Amy's legacy has been paid, I may disregard the interests of each as a beneficiary. Neither party made any submission to the contrary.
Additional Undisputed Facts
The following facts, which, in my view, are not the subject of any dispute, or which have been established, should be noted:
(a) The Plaintiff does not recollect her natural father and so far as she is aware, he did not pay any child support for her to her mother following the divorce order.
(b) The Plaintiff commenced working at about the age of 15 years.
(c) The Plaintiff married Roger John Lumsdon in November 1971. The deceased walked her down the aisle at the wedding.
(d) There were two children of the Plaintiff's marriage, namely Scott, who was born in 1972 and Angie who was born in 1976.
(e) In late 1973, the Plaintiff and her family moved into one of the properties owned by the deceased in Burns Street Croydon. In about 1984, they moved into another of his properties, in Blair Avenue Croydon, where she and the children lived until about July 1997. There is no issue that the deceased required the Plaintiff to pay rent, which rent was "well below market rent". (The issue is whether the Plaintiff, in fact, always paid the rent, which is a matter to which I shall return.)
(f) Following the death of Olive, the amount in her estate was $10,052. She died intestate with the result that the whole of her estate would have passed to the deceased. He, in fact, provided $5,000 for each of the Plaintiff's two children, which sum was placed in trust, for them, with the Plaintiff as trustee.
(g) In June 1997, proceedings were brought in the Consumer Claims & Tenancy Tribunal, on behalf of the deceased, against the Plaintiff, in which an order was sought "ending the tenancy agreement and taking possession of the premises" and that "the tenant pay ... $1,046.55 as compensation for loss of rent to 3-6-97". The reasons for the orders sought were stated to be "[T]he tenant being in arrears of rent in excess of 14 days was issued with a notice of termination. The notice has expired and the tenant has not paid any rent and is still in occupation".
(Although the Defendant says that the arrears of rent were far greater, since this document was lodged in proceedings, this is the amount of the rent, subject to what I say hereafter, that I shall regard as being the amount then due from the Plaintiff to the deceased.)
(h) It appears that the proceedings were resolved between the Plaintiff and the deceased. In a letter dated 27 June 1997, signed by the deceased, addressed to the Plaintiff, under the letterhead of the then managing agent of the Blair Avenue property, the deceased wrote:
"Re: Vacating of premises at xx Blair Ave, Croydon
I, Vito Gargano, proprietor of xx Blair Ave do hereby declare that I will make no claim against any outstanding rent owed to me by you either personally or through legal channels provided you and your family vacate the above premises by the prescribed date being 9th July 1997."
(i) It appears the offer made in this letter was accepted, as the Plaintiff and her two children, who were by now, in employment, subsequently moved out of the Blair Avenue premises. She agreed that she "probably" did not pay any further rent "if I had to move somewhere else".
(j) The Plaintiff moved with her two children to premises, the rent for which was $300. Subsequently, she moved to another premises the rent for which was similar. She gave evidence that she had never been evicted from any other premises that she rented.
(k) In August 2007, the deceased executed a General Power of Attorney in which he appointed Bernadette as his attorney. That Power of Attorney contained a clause permitting the attorney to confer benefits on herself, to meet her reasonable living and medical expenses as provided for in s 12(2) of the Powers of Attorney Act 2003.It also permitted her to confer benefits on the Defendant to meet similar expenses.
The Witnesses
As in many cases in which the relationship of the applicant and the deceased is in issue, it is necessary to assess the witnesses who gave evidence about observations of that relationship. There is also the additional difficulty of assessing evidence concerning statements allegedly made by the deceased.
In this case, there were only a few witnesses who were cross-examined, principally being, the Plaintiff, Jeffrey, the Defendant, and Bernadette. In referring to the evidence of these and others, I shall later endeavour to align the evidence given with the factors that I consider under the Act. However, before so doing, I should set out my views on the credibility of each of the witnesses who were cross-examined.
Generally, I thought that the Plaintiff was endeavouring to answer truthfully, the matters put to her in cross-examination. However, on several matters, I prefer the evidence of the Defendant and Bernadette.
I do not accept the evidence that the Plaintiff gave regarding the cause of the breakdown of her relationship with the deceased. She said, in her first affidavit that the relationship became strained when Bernadette fell pregnant with the Defendant. In cross-examination, she admitted that her failure to pay rent was the main source of friction between her and the deceased, probably from about 1991 or 1992, and that their relationship had worsened by 1997, but she denied that what had led to the breakdown of the relationship was her failure to pay the rent that the deceased had expected to be paid.
I do not accept the following evidence given by the Plaintiff:
"Q. You told Miss Tibbey that from about, I think you said 1992 or 1993 until the events in 1997 which led to the eviction, that there were problems about rent paying?
A. See, my father never actually demanded rent. He knew how much wage I got. It was always a father-daughter relationship. It didn't involve actual being a tenant. So he knew how much money I got a week, which is like $400 a week, and I gave him as much as I could without - I mean, I had to provide for my kids and pay electricity and whatever, so he knew exactly how much I got. There was never a problem.
Q. But I thought you said to Miss Tibbey that there was a problem after 1992 or 1993 until about 1997?
A. But not a major problem. It was just a problem between a daughter and a father. It was like, you know, "Give me $2.00 back" sort of thing if you borrowed. It wasn't a big deal to our relationship."
This is somewhat inconsistent with her first affidavit, in which she admitted that in approximately late 1993 or early 1994, she had a "significant argument ... about outstanding rents to the point that the contact between us started to diminish". It is also inconsistent with much of the other evidence on the topic of the rent that the deceased required the Plaintiff to pay that has been given and the fact that the deceased thought it necessary to commence proceedings to recover outstanding rent and possession of the property.
In my view, a major cause of the breakdown of their relationship was that the deceased expected the Plaintiff to pay rent to him for occupying the Blair Avenue Croydon property. The amount that she was meant to be paying to him was $320 per week. She sometimes paid $100 per week, but, generally, paid less. The Plaintiff expected, because of her financial circumstances and the fact that her two children were still living with her (despite the fact that, by 1997, each was an adult and in employment), that the deceased should understand that there were occasions, particularly if she had bills to pay, that she could not afford to pay him rent, or all of the rent. Their different viewpoints were bound to lead to disagreement between them and I find that they did so.
In any event, witnesses, who were not cross-examined on the topic, gave evidence about what the deceased had said about the rent issue and also about his relationship with the Plaintiff. For example, Leonard Tusa, an accountant who had been the deceased's accountant for about 10 years before the deceased's death, gave the following evidence:
"...
8.... Vito had told me that he had a step daughter, Nancy. His relationship with her appeared to me, from what he said, to be strained. I recall that he said words to the effect of:
'I have provided her accommodation and she did not pay the rent. So I had to kick her out.'"
Mr Tusa also gave the following evidence about the deceased's relationship with the Plaintiff and with Jeffrey:
"As far as I am aware, from what he said to me, although I cannot recall the precise words he used, he and Nancy did not get along and he did not want to have anything to do with her.
9.Vito told me that he had a better relationship with Jeffrey, his step-son. But he never mentioned much about Jeffrey. On no occasion did he ever indicate to me that he wished to provide anything in his will for Jeffrey."
Clyde Robert Livingstone, a friend of the deceased for about 20 years gave evidence (and was not cross-examined at all). He wrote:
"7.A [sic] recall a long time ago Vito told [sic] said words to me to the effect of: "I have had to kick my step-daughter out of Blair Avenue (Croydon)". When he told me this, I could see that he was visibly upset. He did not talk about his step-son to me. I was unaware of a step-son only a step-daughter. Although I do recall him saying words (though I cannot recall precisely what he said) to the effect that Nancy was jealous of Bernadette."
Atela B Livingstone, who also knew the deceased for about the same amount of time as her husband, wrote:
"...
3.About 4 weeks before Vito died he talked to me about his family. He told me words to the effect, "I am very lucky to have my wife (Bernadette)? She looks after me. I have my own daughter (Chiara)." He said, "I am very pleased that when Chiara turns eighteen. I will make her the Executor of my will." He has told me words to the effect, "The only one of my step children that communicates with me is Jeffrey." Vito also said, "Atela would [sic] please look after my girls (meaning Bernadette and Chiara)."
4.I later met Jeffrey at the funeral of Vito Gargano. I was with Bernadette Gargano during the service but I have never met Nancy Lumsdon nor did she attend the funeral."
I accept Bernadette's evidence that she overheard more than one argument between the Plaintiff and the deceased about the Plaintiff's failure to pay rent.
I also accept that, on one occasion, the Plaintiff had an argument with the deceased, which Bernadette was able to hear, in which the Plaintiff referred to the deceased as having "married a slut". This slur, which the Plaintiff denied (more than once), used in relation to Bernadette, also, naturally enough, caused further tension between the Plaintiff and the deceased.
The evidence about failure to pay rent and the slur is corroborated by Maria Antonio D'Agostino, a friend of the deceased having met him in 1978, and also a friend of Bernadette, who gave the following evidence of several conversations with the deceased, upon which she was not cross-examined:
"6.I remember Vito talking about the house in Blair Avenue, Croydon and he became upset and cranky. He said words to the effect, "Nancy has not been paying the rent. She sometimes pays a little bit."
...
9.On a further occasion, Vito became upset when he told me that he and Nancy had had a conversation to the following effect:
Nancy:Why did you marry that slut, Bernadette?"
Vito:I would have been dead by now if I hadn't married Bernadette."
I recall that he said to me words to the effect of:
"After Olive's death, Nancy did not look after me as his daughter. She hardly ever visited me. She didn't ring me, unlike Jeffrey, who visited and also rang me from time to time. Had Nancy looked after me a bit more then perhaps I may not have remarried."
10.I remember Vito telling me words to the effect, "Jeffrey was a good boy. He would come over for dinner or lunch and I would go to his house. Jeffrey did get into trouble like Nancy. I allowed Nancy to stay in the Blair Avenue property and she did not pay the rent. She asked me all the time for money."
Much was made by counsel for the Plaintiff of the fact that Ms D'Agostino gave the following evidence in relation to one of the conversations set out above:
"Q. And you say you have no recollection whatsoever of the date?
A. No, no.
Q. Is it possible, when you think about it, was it possible that it was just before his death or was it a long time before that?
A. It's not very long, but maybe a couple of years behind, I don't know. I don't remember exactly.
Q. When you say "a couple of years behind", you mean a couple of years before his death?
A. Yes."
I do not consider that failing to remember the date of a conversation should lead to doubt that the conversation occurred. It obviously occurred before 1997 because after that date the Plaintiff and the deceased had virtually no contact, and, in my view, bearing in mind the passage of time since then, it is hardly surprising that the date of the conversation was not remembered.
The third matter about which I do not accept the Plaintiff's evidence related to events after the deceased's death and conversations concerning the deceased's Will.
The Plaintiff's evidence on this topic and what had occurred after the death of the deceased was, in her affidavit, simply that she contacted Bernadette on 11 March 2011, to enquire whether her father had died (as she had heard), and to pay her respects to Bernadette. She said that she was subsequently contacted by the Defendant who told the Plaintiff not to call again "as you are upsetting my mother".
In a subsequent affidavit, the Plaintiff denied that she made any demand for the Will, or that she told Bernadette that she intended to make any application for provision on her own, or her children's, behalf.
The Plaintiff repeated some of that evidence in cross-examination:
"Q. Now, after Vito Gargano died on 5 February 2011 you telephoned the Gargano household at about 19 February 2011?
A. Yes.
Q. And you spoke to Chiara?
A. I spoke to Bernie.
Q. You spoke to Bernie on the first call you made, did you?
A. Yes.
Q. And you spoke to Bernie on the first call?
A. Yes.
Q. All right. And I put it to you that you said to her - you asked her about what the arrangements were in relation to the will?
A. No.
Q. And I put it to you that she gave you the phone number of the solicitor handling the matter?
A. No. My Aunty Florence had previously told me, because I asked her about - I was saying how no-one contacted me about my father's death, so I already knew about the solicitor. There was no need for me to ask anything.
Q. So you knew who the solicitor was?
A. Yes.
Q. But you telephoned the household?
A. To say I was sorry that pa had passed away.
Q. And I put it to you that you asked "What arrangements have been made for the will?"
A. No.
Q. And I put it to you that you actually didn't make any expression of condolence to Bernadette?
A. I did.
Q. And you then had a conversation where you spoke to Chiara?
A. No. Chiara rang me up and said "I do not wish you to ring here again because you're upsetting my mother".
Q. And I put it to you that when you were talking to Bernadette you said "I'm supposed to be happy now that he's dead but I feel distressed" and you hung up?
A. That's a lie.
Q. And that in fact there was another day that you had a second call with Bernadette?
A. No.
Q. Which is where you demanded to see the will?
A. No.
Q. And that you said that if you and your children were not mentioned in the will you would contest the will and take everything?
A. That's a lie.
Q. And it is because of that that Chiara rang you and asked you not to call again because you'd upset Bernadette?
A. No. I only speak to Chiara when she rang once.
Q. And that's when she rang, after you had already spoken to her mum?
A. Yes.
Q. And you screamed at her into the telephone and said something like "I deserve something. When my mother died I got nothing. This is my time to get something. Without my mother your father would be nothing" (as said)?
A. That's a lie.
Q. And I put it to you that Chiara said words to the effect of "I understand that you're frustrated. Please ring our solicitor"?
A. That's a lie.
Q. And that you then hung up?
A. I hung up but not - I hung up."
In answer to some questions from the Bench, the Plaintiff gave the following evidence:
"Q. Now, some questions were put to you regarding conversations with either Bernadette or Chiara about the will and you described those conversations that were put to you as a lie.
A. (Witness nods).
Q. Am I right in thinking that nowhere in your affidavit, in any of your affidavits, do you refer to any conversations about the will with either Chiara or Bernadette?
A. That's right. I didn't speak to them about the will.
Q. So you never spoke to them at all about the will?
A. No.
Q. And is that because you were uninterested?
A. No. It's because I believed what my father had always told me.
Q. The reason I'm having some difficulty is--
A. Yes.
Q. --is that I've read that evidence and one might have thought that, if he had promised you that he would make provision for you in the will, one of the things that you might have asked about, either of Chiara or Bernadette or their solicitor, about what provision had in fact been made for you?
A. But they had just lost husband and father; they were grieving enough without me having to put more grieving on them.
...
-- Chiara, on her evidence, said "Don't contact us, contact the solicitor". Did you contact the solicitor?
A. No.
Q. Why not?
A. Because I had just thought that my father would provide for us. When I say "us", I meant for my brother and myself, which he had always made the promise to us, so there was no reason for me to doubt that he wouldn't.
Q. But how were you going to find out if you didn't ask?
A. Eventually after their grieving and whatever, and I was still grieving - I mean, my mother has been dead 23 years now and she's still probably sitting here right next to me backing me up all the way - so I'm still going through my grieving process, so if they loved pa as much as what they said, they would still be grieving for a long time.
Q. I'm still a bit troubled about why, if you believed that you were going to be provided for, why you didn't contact anyone about that?
A. Well, it would have to have - doesn't the solicitor tell you if you're going to be left money in a will or something like that?
Q. So you thought you would be contacted by someone?
A. Yes."
Bernadette gave the following evidence in an affidavit about a conversation with the Plaintiff about the deceased's Will:
"...
44.... She called again on another day and there was a conversation to the following effect:
Nancy: "I am going to contest the will for my children."
Me: "Call my solicitor. Here is the number."
I gave her the number."
The Defendant's evidence about a telephone conversation that she said she had with the Plaintiff, on 11 March 2011, following the Plaintiff's (second) conversation with Bernadette, was as follows:
"...
17.At that time it appeared to me that my mother was very depressed and anxious and was very upset by the call. I telephoned Nancy Lumsdon and we had a conversation to the following effect:
Me: Nancy, you have upset my mother and I do not wish you to call here again.
N Lumsdon (screaming into the telephone): I deserve something. When my mother died I got nothing. This is my time to get something. Without my mother your father would be nothing.
18.I attempted to interject several times. Finally I said words to the effect of:
I understand that you're frustrated, but please don't attack my mother. If you believe you are entitled to something, talk to our solicitor instead of badgering us. I can give you his number.
19.She hung up without waiting for the number."
The Defendant's evidence given in answer to some questions on this topic in cross-examination is also important:
"Q. You have also said in regard to this conversation which took place on 11 March 2011 that she started screaming into the telephone?
A. That is correct.
Q. And you said she said "I deserve something"?
A. She said.
Q. I want to suggest to you she never screamed into the telephone?
A. That is not correct.
Q. I want to suggest she never said anything or mentioned anything about the will in that conversation?
A. That is not correct."
On the second day of the hearing, the Defendant's counsel tendered, without objection, a document containing a copy of a number of messages, which appeared on Facebook, in March 2011, passing between the Defendant and Angie. Relevantly, one of them included the following passage:
"Also Angie, I wish you to know that your mother contacted me and mum today. After offering her condolences she told us that she wished to contest the will for a share for you and Scott. I understand that she was just looking out for you guys, but it startled my mother. What ever was in his will was his business alone, Mum and I had no part in deciding anything. I do not wish this to cause tension between our families. Essentially it is the same family, and whatever past conflicts should be left in the past."
It is clear that what appears to be a contemporaneous note is consistent with Bernadette's version of a conversation with the Plaintiff, and which conversation was said to be "a lie" by the Plaintiff. Furthermore, if the conversation between the Plaintiff and Bernadette had been simply one in which the Plaintiff offered her condolences, it was hardly likely to have triggered a subsequent, and apparently, somewhat acrimonious, telephone conversation between the Defendant and the Plaintiff, and the Defendant subsequently raising the matter, in writing, with the Plaintiff's daughter.
Counsel for the Plaintiff referred to the use of the reference to the contact by the Defendant being one in which she was involved ("me and my mum"). However, I must view what was written as part of informal social discourse and should not read it as one might read an affidavit.
Furthermore, bearing in mind the Plaintiff's evidence that she understood, because of what the deceased had told her, he was going to make some provision for her out of his estate, it is implausible that she made no enquiry of the Defendant, Bernadette, or any solicitor, about the contents of the deceased's Will, but was simply prepared to wait for someone to advise her of its contents.
On this topic, also, I accept the Defendant's and Bernadette's evidence where it conflicts with that of the Plaintiff.
I found the Defendant, Bernadette, Angie and Jeffrey reliable witnesses.
There was no suggestion that other witnesses who gave evidence should not be believed.
The Statutory Scheme - The Act
Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.
The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:
"Purposive construction of the Act
There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.
There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."
Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.
The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.
It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". (The difference between this sub-section and the former Act, which referred to "a member of a household of which the deceased was a member", is not relevant in the present case.)
There is no dispute, in this case, that the Plaintiff was a member of the household of which the deceased was a member for a period of time. The precise period may be in issue, but the Act does not state any requisite period of time during which an applicant must be a member of the household. There is also no dispute that during part of the time that she was a member of the household of which the deceased was a member, the Plaintiff was at least partly dependent upon the deceased.
Where an applicant falls within the definition of eligible person within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).
The Act does not specify the "factors which warrant the making of the application". Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted that "[N]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
In Re Fulop, McLelland J also said, at 683:
"In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."
In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said:
"There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application ....
... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.
If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."
Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said:
"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."
In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.
In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:
"7 This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.
9 ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:
"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."
More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:
"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.
[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.
[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."
It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann [2012] NSWSC 1030. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16].
Inadequacy of Provision
Then, if eligibility and, as is necessary in this case, factors warranting the making of the application are found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process.
Allsop P in Andrew v Andrew, has recently commented, at [6]:
"...the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59."
Basten JA in Andrew v Andrew, at [26], put the differences this way:
"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy."
Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.
It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".
Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.
"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18] stated:
"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."
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.'"
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."
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)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.
Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
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 in 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."
In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, 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 used 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."
Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."
In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.
It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education or advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry.
In Collins v McGain Tobias JA said:
"42.Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased and/or by operation of the intestacy rules,), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made: s 59(2) and s 60(1)(b).
Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Basten JA, in Andrew v Andrew, said of the two stage process referred to:
"29The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.
...
41As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."
In Andrew v Andrew, Allsop P, at [6], said:
"Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]."
Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:
"65This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.
...
79First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it 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". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied".
80Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.
When the deceased was ill at home with mesothelioma for almost one year before death, the Plaintiff took no steps to contact him. Of course, because of the prior lack of contact, she may not have known he was ill.
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased.
Merely being the stepdaughter of the deceased does not, necessarily give rise to an obligation or responsibility, to make adequate provision for the applicant's proper maintenance or advancement in life. However, as will be seen from a number of wills made by the deceased between 1972 and 1992, he appears to have acknowledged an obligation to make some, albeit modest, provision for the Plaintiff.
In this case, it appears that the Plaintiff was financially independent of the deceased for at least 13 years before his death. This, in my view, is a relevant consideration in determining the extent of any obligation or responsibility owed to her.
An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child. In this case, the Defendant, who is the principal object of the deceased's bounty, is his child.
There is also no dispute that an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a spouse.
From the time of her marriage and from the time of her birth, respectively, Bernadette and the Defendant remained financially dependant upon the deceased.
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have dealt with the nature and extent of the estate. It is a large estate.
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
The Plaintiff gives evidence of her current financial and material circumstances as follows:
"...
4.I confirm that I am still employed with the Education Department earning $44,730 gross per annum.
...
6.My rent has increased from $385 per week to $395 per week.
7.I note that I live on a week by week basis and after any given week I have approximately $20 in savings.
...
9.I do not have much by way of super and note that as at 31 December 2011 I had an account balance of $45,655. I note that I have not yet received my statement for the 6 month period of the 2012 year however I note the variance could only be a couple of thousand dollars.
10.Over and above that which I have outlined above I have no other assets."
Her expenditure includes $117 per week on cigarettes.
Supplementary evidence suggests that she currently has a tiny amount of savings.
The Plaintiff sets out her needs as follows:
"12.I confirm that if I was to receive a benefit from my pa's estate I would utilise these funds to do the following:-
(a)Utilise the funds to purchase a property in the inner west.
(b)I have attended upon Harvey Norman Wiley Park where I spoke to various persons to obtain updated quotes for furniture and appliances which I need replaced ... I note that the total cost of these replacement items costs approximately $10,000.
(c)As outlined in my previous affidavit I would like to purchase a small run about vehicle so that I may have the freedom I once had. I annex ... an updated quote on a Holden Barina from Suttons Chullora. I note the cost of this vehicle is $20,490 drive away.
13.As outlined above and in my previous affidavits I have very little by way of savings and I live week by week. I do not have anything saved for contingencies of life and should funds be made available to me I would like to put something into savings to plan for these possible eventualities and to ensure that the property which I intend to purchase does not fall into disrepair.
14.Finally, should any further funds be made available to me I would like to put some funds into superannuation so as to better help me plan for my retirement."
She has no tertiary or technical qualifications. She describes herself as "a manual worker".
I note also that the Plaintiff would like to work to age 65 years. Her earning capacity is likely to be limited thereafter.
In submissions, the amount of about $600,000 was put forward as adequate and proper to satisfy the Plaintiff's needs.
Although counsel for the Defendant made a comment about the lack of disclosure by the Plaintiff of all financial records, I am satisfied, generally, that the Plaintiff has disclosed her financial position.
The Defendant does not set out her financial resources and needs. However, she states that she is currently studying journalism at university and is in her second year. Of course, she receives a share of the deceased's estate that is of reasonably large value.
Bernadette does not set out her financial resources and needs either. However, I have earlier referred to the provision made for her in the deceased's Will and the amounts, in the various bank accounts held jointly with the deceased, which passed to her by survivorship.
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
The Plaintiff lives alone.
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
The Plaintiff says that she is in reasonably good health, although she still suffers grief because of the death of Olive.
There is no evidence of the Defendant's current health.
Bernadette states that she currently takes tablets for blood pressure and was to undergo investigation for a possible cyst in the throat.
(g) the age of the applicant when the application is being considered
The Plaintiff is currently aged 61 years, having been born in September 1951.
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The Plaintiff does not suggest that she made any financial contribution to the acquisition of the estate of the deceased.
She did make a significant contribution to the deceased's welfare at least until the death of Olive and for a short period thereafter. I have earlier referred to their relationship before, and after, 1997. I have also referred to Jeffrey's statement at [166] about what the deceased told him about what the Plaintiff did whilst the deceased was overseas.
Whilst the Plaintiff lived in the Blair Avenue property, paying a reduced, or no, rent, I do not regard this as her having received adequate consideration for her contribution.
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
The deceased made significant provision for the Plaintiff during his lifetime, by providing her with accommodation at a reduced, or no rent. The provision of accommodation appears to have started in about 1972 and continued until 1997. It is not possible, now, to calculate, in any accurate way, the value of such subsidised accommodation but bearing in mind its duration, in my view, it was a valuable benefit provided by the deceased during his lifetime.
In addition, he assisted her by giving her money on occasions. On one occasion, he assisted the Plaintiff's son, Scott, when he needed to pay for repairs to a motor vehicle.
As previously stated, the Plaintiff receives nothing out of the estate of the deceased, unless a family provision order is made.
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the Court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.
There are a number of copy wills in evidence. It is necessary to refer only to the provision they contained that is relevant to these proceedings.
In a Will that is dated 19 March 1963, no provision is made for the Plaintiff.
In a Will that is dated 7 April 1972, the deceased left a legacy of $1,000 to the Plaintiff.
In a Will that is dated 8 December 1989, the deceased provided as follows:
"...
8.I GIVE AND DEVISE my real property situate at and known as Number xx Blair Avenue Croydon to such of them my granddaughter ANGIE LUMSDON and my grandson SCOTT LUMSDON who shall be living at my death and attain or have attained the age of eighteen (18) years and if both as tenants-in-common in equal shares absolutely.
9.I GIVE AND BEQUEATH all my household chattels as defined in Section 61A of the Wills Probate and Administration Act 1898 (as amended) contained in my real property situate and known as xx Blair Avenue, Croydon to my step-daughter NANCY LUMSDON absolutely if she be living at my death.
11.NOTWITHSTANDING any of the preceding provisions of this my Will I HEREBY DIRECT my Trustee and the beneficiary or beneficiaries entitled to the property situate at and known as Number xx Blair Avenue Croydon to permit my step-daughter NANCY LUMSDON to personally reside therein during her lifetime subject to payment by her during the period of her residence of all rates taxes insurance premiums repairs of a recurring nature and other outgoings of a recurring nature properly applicable to income in respect thereof (my Trustee to pay any liability for Capital Gains Tax from the sale proceeds of any trust asset or assts if such tax be assessed following disposal thereof by my Trustee) PROVIDED HOWEVER AND I HEREBY DECLARE that such right of residence shall determine upon the death of my said step-daughter OR upon receipt by my Trustee of a notice in writing signed by my said step-daughter that she no longer desires to reside in the said property OR alternatively if for any reason whatsoever my said step-daughter shall not reside in the said property for a period of six (6) successive months whichever event shall first happen."
I set out the clauses of the 1989 Will in detail because of the reference to the Plaintiff and the provision made for her in this Will. I also note that the deceased described Scott and Angie (the Plaintiff's children) as "my grandson" and "my granddaughter" respectively, but that he described the Plaintiff as "my step-daughter".
The 1989 Will does support the evidence of the Plaintiff that the deceased said that he had made some provision for her out of his estate.
In a Will that is dated 19 January 1993, no provision is made for the Plaintiff. Importantly, in relation to the 1993 will, the Will Information Form of the Public Trustee NSW is in evidence. That form contains the following information about the Plaintiff:
"...
Reason for exclusion or inadequate provision from Will ...:-
Testator advised;
- Step-daughter, step g-children, brother & nephews mentioned in previous Will are not dependant & have never been dependant on him in anyway. They are not included in this Will as he has re-married & now has a daughter.
- He believes wife has been adequately provided for & he also wants to look after daughter's best interest - FPA explained to him."
Finally, in a will made by the deceased on 27 August 2007, no provision was made for the Plaintiff. The bulk of the estate was left to the Defendant and to Bernadette.
Importantly, in relation to the 2007 will, the Will Information Form of the Public Trustee NSW is in evidence. That form contains the following information about the Plaintiff:
"The persons who can make a claim, if not adequately provided for under the Will are:
...
Potential Claimant's Name: Nancy Lumsdon formally Davis
Address:
Relationship to Testator: step daughter - adult - never dependant
Reason for Exclusion: 1989 - testator's wife died - Nancy is her child & has taken all mother's assets upon her demise. Testator has assisted financially but no contact now for several years."
The deceased told Bernadette that he did not wish to make any further provision for the Plaintiff, saying:
"With all the help I have given Nancy in the past I have provided enough for her. She has to learn to stand on her own two feet."
Mr Tusa, the deceased's accountant, gave evidence that the deceased spoke to him only about providing for Bernadette and the Defendant, and that the deceased made "no mention of providing for Jeffrey or Nancy".
The deceased also told Clyde Livingstone that he did not wish to make any provision for the Plaintiff.
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
There is no evidence that the Plaintiff was being maintained, either wholly or partly, by the deceased for at least 13 years before his death.
I have earlier referred to the accommodation that he had provided for her prior to 1997, and to the fact that her eligibility, based on her dependence on the deceased at a particular time, was not disputed.
(l) whether any other person is liable to support the applicant
There is no other person with a liability to support the Plaintiff.
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
Bernadette gave evidence that she told the Plaintiff, at Christmas 1996, that the deceased was in hospital and for this reason the usual Christmas celebrations would have to be postponed. The Plaintiff did not visit the deceased whilst he was in hospital.
Otherwise, I am satisfied that there is nothing in the Plaintiff's conduct not already referred to, before, or after, the death of the deceased that is relevant.
(n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that the Defendant and Bernadette each had a close and loving relationship with the deceased and that each is a chosen object of the deceased's bounty.
Bernadette looked after the deceased during the last year or so of his life following his diagnosis of Mesothelioma in January 2010. Earlier she had looked after him when he had heart problems. She ensured that he was able to remain at home until his death. She had participated in the maintenance and upkeep of the rental properties after November 1990, as well as actively contributing to the deceased's welfare and happiness through her companionship and care during the marriage.
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not relevant in the present case.
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
There is only one other matter that I consider relevant. The deceased was incorrect in stating as he had in the instructions for his Wills to which I have referred, that the Plaintiff was never dependant upon him. In my view, his description of his relationship with the Plaintiff, at least before 1997, was inaccurate.
I also do not accept that the Plaintiff, in fact, had taken all of her mother's assets upon her demise.
In any event, whilst the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.
Determination
Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute that the Plaintiff was a member of the household of which the deceased was a member or that she was partly dependent upon the deceased, at least during the period before 1997. Thus, she is an eligible person within s 57(1)(e) of the Act.
There was a significant dispute that factors warranting the making of the application had been established. Counsel for the Defendant submitted that there were no such factors. She submitted "although mainly brought up in the same household as the deceased, [the Plaintiff] abused his kindness to her as an adult and refused to pay even a subsidised rental for the property in which he allowed her to live". Counsel also referred to the other conduct of the Plaintiff towards the deceased to which reference has been made above.
In submissions on Andrew v Andrew, counsel for the Defendant added:
"The breach in the relationship appears to have stemmed from several factors: in part from jealousy and inflated sense of entitlement on the part of the Plaintiff and was therefore rude and insulting about his remarriage, in part from a sense on the part of the deceased that the Plaintiff did not care for him after her mother's death as he had expected, did not visit him in hospital in January 1997 when he had a heart by-pass operation and finally that she failed to pay him a minimal, subsidized level of rent for the house in which she ( and her two adult, working children) lived. They argued "plenty" of times over this. In May 1997 the deceased took action to have her evicted from the premises. There was no contact after that, on the Defendant's case.
In this case, there is a greater sense of "fault" on the part of the Plaintiff for the breach in the relationship than there was in Andrew, where the causes of the breach could not be ascertained with precision. This is particularly so given that during the later part of the period that the applicant lived in the house, her two adult children living with her were earning incomes, her daughter in an apprenticeship and her son in a skilled job."
I am satisfied, however, that the Plaintiff has established factors warranting the making of the application. The factors include that she and the deceased had a caring and loving relationship between about 1955 and 1989, and, perhaps, less so, but still a relationship in which they kept in contact with each other until 1997. Between about 1955 and 1971, a relationship of affinity, as a result of the de facto relationship of Olive and the deceased, existed. After 1971, the Plaintiff and the deceased shared their lives as stepchild and step-parent, at least until 1989 and, perhaps, less so until 1997. In other words, the relationship exceeded 34 years, and in all, until 1997, was over 40 years.
I also remember that even though the Plaintiff was not the deceased's own child, he came into her life when she was about four years old and the deceased was about 28 years old and that from then on until 1997, he was the only father figure that she knew, and until the birth of the Defendant, she was the only daughter figure that he knew: McKenzie v Topp [2004] VSC 90, per Nettle JA, at [17].
The deceased, in a number of Wills that were made prior to his marriage to Bernadette and before the birth of the Defendant included the Plaintiff as a beneficiary, albeit that she did not receive a very large part of his estate in any of those Wills.
The Plaintiff raised, as a factor warranting, that she had stood aside following the death of Olive and had not sought any provision out of Olive's estate. Based upon the evidence, which reveals that Olive's estate consisted of cash of about $10,000, which the deceased gave to the Plaintiff's children, I do not consider that this is a factor warranting the making of the application.
However, there is another aspect, relating to Olive's estate, that is relevant. The evidence reveals that during Olive's relationship with the deceased, which I note, spanned 34 years, she worked in paid employment, predominantly with the Department of Education. All of the properties purchased by the deceased in his name alone, and which he owned at the date of his death, were purchased during their de facto relationship or their marriage.
Whilst there is no specific evidence of Olive's direct financial contribution to the acquisition, conservation, or improvement of any of these properties, that is not all that is usually considered in determining the contribution of a spouse or de facto spouse. The Plaintiff gave evidence that Olive "maintained the household and particularly my father" and that she "did all of the domestic chores as well as work". This is consistent with the evidence about the deceased and the expectations of his wife.
I also remember that the deceased was "old-fashioned" and believed that property should be bought in the name of the husband only. That Olive died, without owning any significant property, whilst the deceased died owning substantial property, to which Bernadette made no direct financial contribution, leads to the inference that it was likely that Olive made some contribution, financial and/or otherwise, if not directly, then certainly indirectly, to the building up of the deceased's estate. In other words, the bulk of the deceased's estate, which is large, is likely to have been the product of their joint endeavours.
As counsel for the Plaintiff submitted, had Olive had more substantial property, at the date of her death, she may have been able to make some provision for the Plaintiff. (Whether she would have, of course, is a matter of speculation.)
Happily, some support for the above view is to be found in Re Fulop, where McLelland J said, at 683:
"There is an additional factor in Mr Fulop's case, namely that on the evidence it seems reasonably clear that the only substantial asset in the deceased's estate, her home at Wentworthville was acquired from funds derived to a substantial extent directly or indirectly from moneys earned by Mr Fulop's father. Mr Fulop derived no benefit from the estate of his father."
This factor does not provide, however, a formula that should result in the value of the natural parent's contributions being returned to her child, in this case, the Plaintiff, upon the death of the step-parent.
I am satisfied, in the case of this Plaintiff, that having regard to all the circumstances of the case, whether past or present, that there are factors which warrant the making of the application.
Having established eligibility and factors warranting the making of the application, there is also no dispute that the proceedings were commenced within the time prescribed by the Act.
Then, the question for determination is whether, the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made, relevantly in this case, by the Will of the deceased. (The operation of the intestacy rules is irrelevant.)
The deceased made no provision out of his estate for the Plaintiff. Counsel for the Defendant, first submitted that the Plaintiff failed to disclose her financial position. However, it appears to me that counsel has failed to make good that submission. The Plaintiff said that she had done so (albeit that some of her financial information was served quite late in the proceedings). In addition, there was no suggestion made to the Plaintiff that she had property that she had not disclosed or that what had been disclosed was false.
As counsel for the Defendant fairly conceded, other than the fact that almost all of her income was withdrawn in cash, almost immediately after it was deposited, there was nothing in the banking records that had been produced that was remarkable or extraordinary. I am satisfied that the Plaintiff's financial resources are as she asserted them, under oath, to be.
I do not accept the submission that the Plaintiff's financial circumstances are of her own making. The simple fact is that she is on a modest wage and is renting accommodation.
Counsel for the Defendant submitted that even if I came to that view, bearing in mind the lack of any relationship for the last 13 years of the deceased's life, taken with the provision made for her during his lifetime, the provision made by the deceased did not amount to inadequate provision. Respectfully, I disagree.
In my view, in all the circumstances of the case, the jurisdictional threshold has been satisfied. It is clear that the Plaintiff has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. By way of example, she has no capital sum to provide for the exigencies of life. She is 61 years of age with a limited earning capacity. Important, also, is the size of the estate.
Thus, I am satisfied that adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.
Then, I next consider the nature and amount of any provision that should be made.
Whilst the deceased did not feature in the Plaintiff's life to the same extent as he had whilst Olive was alive, and then did not feature at all in her life for the next 13 years, I am of the view that this fact does not disentitle the Plaintiff to provision. However, it "restrains the amplitude", per Bryson JA of the provision that should be made: Wheatley v Wheatley [2006] NSWCA 262 at [37].
Having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased, Bernadette and the Defendant, each of whom also has a significant legitimate claim upon the deceased's bounty, as well as the provision made for the Plaintiff during the lifetime of the deceased by way of subsidised accommodation, that the Plaintiff is nearing retirement age, and notwithstanding that the relationship of the Plaintiff and the deceased had deteriorated after 1989, and that her conduct contributed to the deterioration, I am satisfied that some provision should be made for the Plaintiff out of the estate of the deceased.
However, I do not accept that she should receive an amount sufficient to enable her to purchase an unencumbered home unit, a car, furnishings, and be provided with a capital sum for exigencies of life. In my view, the Plaintiff should receive a lump sum, out of the estate of the deceased of $195,000. Whilst this amount might not enable her to purchase unencumbered accommodation in her sole name, it will provide a sum sufficient to enable her to pay rent, in part, from income and in part from capital for the immediate future and then out of capital. Alternatively, it will provide her with a capital sum to be used as a buffer against the vicissitudes of life.
Of course, that amount will not significantly reduce the residue of the estate. Each of the Defendant and Bernadette will bear the burden of one half of that provision.
I should mention, in case it is thought it was forgotten, that I have borne in mind that Andrew v Andrew was a case involving a child of the deceased and not a stepchild of the deceased.
In the circumstances, I order that:
(i) Having found that the Plaintiff, Nancy Olive Lumsdon is an eligible person, that there are factors warranting the making of her application, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive, in lieu of that provision, a lump sum of $195,000 out of the estate of the deceased.
(ii) Order that the provision made for the Plaintiff should be borne by the residuary estate.
(iii) No interest is to be paid on the lump sum, if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(iv) The costs of the parties shall be determined after further submissions, unless agreement is reached between them.
(v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
(vi) Order that the Court Book be returned.
(vii) Stand over the proceedings for the argument on costs.
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Decision last updated: 23 October 2012
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