Lysaght v Lysaght
[2018] WASC 88
•29 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LYSAGHT -v- JOHN FRANCIS LYSAGHT AS EXECUTOR OF THE ESTATE OF PAUL JOSEPH LYSAGHT [2018] WASC 88
CORAM: TOTTLE J
HEARD: 18 & 19 JANUARY 2018
DELIVERED : 29 MARCH 2018
FILE NO/S: CIV 1239 of 2014
BETWEEN: JEREMY PAUL LYSAGHT
First Plaintiff
JODEE KYM LYSAGHT
Second Plaintiff
AND
JOHN FRANCIS LYSAGHT AS EXECUTOR OF THE ESTATE OF PAUL JOSEPH LYSAGHT
First Defendant
JOHN FRANCIS LYSAGHT
Second Defendant
PATRICIA MARGARET LYSAGHT
Third Defendant
FRANCIS HARLAND LYSAGHT
Fourth Defendant
HELEN MAREE LYSAGHT
Fifth Defendant
UTHAI PRADABTHONG
Sixth Defendant
Catchwords:
Succession - Wills - Whether deceased made adequate provision for plaintiffs under s 6 Family Provision Act 1972 (WA) - Where plaintiffs and deceased estranged - Where no provision made for plaintiffs as children of deceased - 'Adequate provision from estate for proper maintenance, support, education or advancement in life' - 'Disentitling conduct' - 'Adult children'
Legislation:
Family Provision Act 1972 (WA), s 6, s 7
Result:
Application granted
Deceased's will redistributed to make adequate provision for plaintiffs
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr D Singh |
| Second Plaintiff | : | Mr D Singh |
| First Defendant | : | Ms W Gillan |
| Second Defendant | : | Ms W Gillan |
| Third Defendant | : | Ms W Gillan |
| Fourth Defendant | : | Ms W Gillan |
| Fifth Defendant | : | Ms W Gillan |
| Sixth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| Second Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| First Defendant | : | Biddulph & Turley |
| Second Defendant | : | Biddulph & Turley |
| Third Defendant | : | Biddulph & Turley |
| Fourth Defendant | : | Biddulph & Turley |
| Fifth Defendant | : | Biddulph & Turley |
| Sixth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Andrew v Andrew [2012] NSWCA 308
Bondelmonte v Blackensee [1989] WAR 305
Butcher v Craig [2010] WASCA 92
Coates v National Trustees Executors and Agency [1956] HCA 23; (1956) 95 CLR 494
Dean v Collins (No 2) [2015] WASCA 151
Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dun v Dun [1957] HCA 91; (1957) 99 CLR 435
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
In re Sinnott [1948] VLR 279
Keep v Bourke [2012] NSWCA 64
Kitson v Franks [2001] WASCA 134
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead [2017] WASCA 215
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin [2005] HCA 11; (2004) 221 CLR 191
Wheat v Wisbey [2013] NSWSC 537
TOTTLE J:
Introduction
The first plaintiff, Jeremy Lysaght, and the second plaintiff, Jodee Lysaght, have applied for an order that adequate provision be made for their proper maintenance, support, education or advancement in life out of the estate of their late father Paul Joseph Lysaght (Deceased). The application is made pursuant to s 6 of the Family Provision Act 1972 (WA) (Act).
Intending no disrespect I refer to the parties and family members in this dispute by their first names.
The Deceased died between 23 and 25 June 2013 aged 63. By his will made on 30 May 2013 (Will) the Deceased appointed the first defendant, his brother John, as executor and gave his entire estate to John to convert into money and after payment of debts and expenses to hold the residue of the estate as follows:
(i)15% for Patricia Margaret Lysaght, the Deceased's mother;
(ii)15% for Francis Harland Lysaght, the Deceased's father;
(iii)15% for John Francis Lysaght, the Deceased's brother;
(iv)20% for Uthai Pradabthong, the Deceased's friend; and
(v)35% for Helen Maree Lysaght, the Deceased's sister.
At the date of the hearing the net value of the estate was approximately $495,000.
The Deceased's widow, Susanne Lysaght, was originally the third plaintiff in these proceedings but has since discontinued her claim. The Deceased and Susanne separated in 1977 but never divorced.
The sixth defendant, Uthai Pradabthong, resides in Thailand. She did not enter an appearance and has not participated in these proceedings. She was known to the Deceased as Kai and I will refer to her by that name in these reasons.
The evidence
The evidence comprised affidavits sworn by Jeremy, Jodee, Susanne, John and Helen. Jeremy, Jodee, John and Helen were cross‑examined on their affidavits. Copies of the grant of probate, the statement of assets and liabilities of the Deceased's estate and the Will were received in evidence. In the course of Jodee's cross-examination, copies of letters exchanged between Jodee and the Deceased and his solicitor were tendered. I am satisfied that each of the witnesses gave their evidence truthfully. Albeit that I must take into account the fallibility of human recollection given that much of the evidence concerned events that occurred over 20 and more years ago, I consider that the evidence is generally reliable.
The facts
The facts were largely uncontroversial.
The Deceased and Susanne married in 1972. Jeremy was born on 8 November 1974. Jodee was born on 13 July 1977. The Deceased and Susanne separated in December 1977. Following the separation Jeremy and Jodee lived with Susanne.
The Deceased was an electrician by trade. At some point not established by the evidence, the Deceased stopped working as an electrician and started work as a 'Golf Pro Shop Assistant' at his local golf club.
Between 1977 and November 1992 the Deceased saw Jeremy and Jodee at weekends on a fortnightly basis. He picked them up on a Saturday morning and returned them on a Sunday afternoon. The Deceased usually took Jeremy and Jodee to visit their grandparents each Sunday of the weekends that they were with him. Jeremy and Jodee met other members of the Deceased's family on these visits and would usually spend some time with their grandparents at Christmas. Through these visits Jeremy and Jodee came to know their uncle, John, and aunt, Helen.
The Deceased did not spend any time with Jeremy and Jodee in their school holidays other than on the fortnightly access weekends. The Deceased did not attend any school events, such as sports days, assemblies or parent teacher interviews.
From May 1979 onwards the Deceased paid $85 per fortnight by way of maintenance for Jeremy and Jodee. Other than on one occasion when he provided Jeremy with $100 to assist with the cost of a school camp when Jeremy was 10 or 11 years old, the Deceased refused Susanne's requests for contributions to Jeremy and Jodee's educational expenses.
When Jeremy turned 18 in November 1992 the Deceased reduced his fortnightly maintenance payments to $42.50. Jeremy telephoned the Deceased and asked him why he had stopped paying maintenance for him even though he, Jeremy, was a full‑time student. The Deceased said that it was because Jeremy was 18. Jeremy replied, 'ok thanks, goodbye'.[1] Following this telephone conversation the Deceased did not contact Jeremy. The Deceased and Jeremy did not speak again until the following year.
[1] Exhibit P1 par 33.
Susanne made an application to the Family Court to reinstate the maintenance payments for Jeremy and in May 1993 obtained an order that required the Deceased to make maintenance payments of $120 per fortnight for Jeremy. The Deceased complied with the order. Following a court hearing in May 1993 the Deceased spoke to Jeremy and asked whether he could call him the following week. Jeremy said '[i]t's up to you, the ball is in your court'.[2] Jeremy says they parted on good terms. The following week the Deceased called Jeremy and asked him whether he would be 'going with him' that weekend. At some point during the conversation Jeremy said, 'I'm still very angry with you'.[3] The Deceased responded abusively and terminated the telephone call. Jeremy's evidence was that he was angry with the Deceased because he had not contacted Jeremy for over six months and had stopped the maintenance payments as soon as Jeremy had turned 18. There was no further contact between Jeremy and the Deceased after that telephone conversation. Neither one attempted to contact the other. The Deceased continued to pay the fortnightly maintenance payments of $120 until December 1993 when payments ceased because, according to Jeremy, he did not send the Deceased a copy of his academic results for that year.
[2] ts 16.3.
[3] Exhibit P1 par 37; ts 16.4.
Jodee said that the Deceased ceased contacting her when she was 15 years old following Jeremy's telephone conversation with the Deceased in November 1992. Up until that time she thought that her relationship with the Deceased was 'cordial'.[4] She did not know why the Deceased no longer wished to see her or talk to her. She never saw him or spoke to him in person again.
[4] Exhibit P3 par 24.
The Deceased stopped paying maintenance for Jodee when she turned 18. She was a full‑time university student at the time. Jodee wrote to the Deceased in terms that might be described as terse, asking him to reinstate the maintenance payments and informing him that she had applied for a 'Summary Maintenance Determination' and that she 'would be seeing [him] in court' if he did not wish to pay.[5]
[5] Exhibit D1.
The Deceased responded in conciliatory terms, stating that he was relieved to hear that Jodee was pursuing tertiary education and that he was happy to support her ongoing education. The Deceased agreed to pay maintenance at the rate of $150 per fortnight. When Jodee completed her undergraduate degree she wrote to the Deceased informing him that she had completed her studies. In the course of her cross-examination Jodee said that she gave the Deceased 'the option' of attending her graduation but he did not do so.[6] That was the last contact between Jodee and the Deceased and neither one attempted to contact the other following that exchange of correspondence.
The Deceased's relationship with other family members
[6] ts 29.2.
The Deceased and Susanne remained married but following the separation there was no relationship of any kind between them.
The Deceased's brother John was one year older than the Deceased and his sister Helen was two years younger than him. The Deceased appears to have had a close relationship with John and Helen and with his parents. In his oral evidence John described the family as being 'a normal family' and said they were 'together on all sorts of occasions.'[7]
The Deceased's relationship with Kai
[7] ts 53.10.
John described the Deceased as a 'sports nut' and one of his sporting interests was golf. Twice a year the Deceased travelled to Thailand with friends to play golf.[8] On the first such trip he met Kai. On the basis of statements made by the Deceased to John, it appears that the Deceased developed a strong friendship with Kai. The Deceased told John that he spent time with Kai on each occasion that he visited Thailand. He did not, however, go to her home or meet the teenage children that she had told the Deceased she supported.
[8] ts 53.5.
Four to five months before he died the Deceased told John that he wanted to leave 60% of his estate to Kai. I infer from this that John's feelings for Kai may well have extended beyond feelings of friendship to feelings of love and affection.
Between August 2009 and February 2013 the Deceased paid Kai a total of $10,000 by 31 separate payments made by telegraphic transfer from his bank account. One of the payments was for $200, four of them were for $500 and the rest were payments of $300.
Jeremy's position
Jeremy completed his secondary education in year 12 and obtained a Higher School Certificate. He completed two years of a Bachelor of Engineering degree course at the University of Western Australia. After his university studies Jeremy obtained responsible employment in a number of fields, including in casinos, in media related organisations and more recently, as referred to in more detail later in these reasons, in the legal profession.
Jeremy moved to Sydney in 1997. He married his wife Joanne in 2007.
Between 2005 and 2014 Jeremy suffered from a renal condition which required ongoing medical treatment and medication. Since 2014 the underlying condition has been in remission. Jeremy suffers from hypertension.
Jeremy and Joanne commenced IVF treatment in 2010. By 2013 they had spent approximately $45,000 on the treatment. Joanne suffered considerable health difficulties, which resulted in Jeremy resigning from full‑time employment. Joanne ultimately gave birth to a son in May 2014. Unfortunately, the birth was premature and the child spent the first five months of his life in hospital. He has required numerous operations and other medical procedures. Jeremy and Joanne have incurred approximately $7,200 in out of pocket medical expenses since their son's birth. Their son's development will require close monitoring for the first seven years of his life.
As at the date of the Deceased's death Jeremy and Joanne owned a unit in Sydney on which he placed a value of $550,000 in February 2014. The unit was subject to a mortgage securing approximately $340,000. Jeremy placed a value of $15,000 on his household goods and had $2,200 cash in the bank.
By February 2014 Jeremy had accumulated approximately $92,000 in superannuation.
In May 2014 Jeremy commenced a course of studies for a Diploma at Law under the New South Wales Legal Professions Admissions Board.
Joanne is a solicitor and in late 2015 she acquired the property practice in which she worked from her then employer and established her own legal practice. Jeremy is employed in the practice as a paralegal. To qualify as a legal practitioner he will need to undertake a College of Law Practical Legal Training Program which presently costs $9,080, but which is likely to cost more by the time he is in a position to undertake the course. He estimates that the cost of completing the course will be $16,250. Presently his employer (Joanne's legal practice) is paying for his legal studies.
Jeremy and Joanne presently live with Joanne's parents, to whom they pay a weekly amount for board and for child care for their son.
Jeremy's annual income is approximately $90,000. After meeting living expenses he has surplus of income over expenditure of approximately $900 per month.
Jodee's position
Jodee obtained a Bachelor of Biology (Honours) degree from Curtin University in 1999. Between 2000 and 2007 she worked as a keeper at Perth Zoo, but suffered a back injury whilst at work that required surgery and a spinal fusion. Jodee was able to continue working in different capacities between 2007 and July 2009, but she was unable to work between July 2009 and July 2011 because of her back injury. She resumed work as a 'Greenlife Specialist' working for a home improvement business in 2012 and she was employed in that capacity when the Deceased died.
In 2011 Jodee developed severe agitated depression for which she was receiving medication and treatment at the date of the Deceased's death.
In February 2014 Jodee's fortnightly income was $1,234. Her expenses marginally exceeded her income and she was dependent on her partner (with whom she had been in a de facto relationship since 2007) to cover the deficit. Jodee owned a 2009 model car which she valued (in February 2014) at $18,000 and she had household contents which she valued at $10,000. Jodee had accumulated approximately $20,000 in superannuation. In February 2014 she had cash in the bank of $480 and credit card debts of $885. Jodee and her partner were living in rental accommodation.
By the time of the hearing Jodee's position had changed, though, financially at least, not for the better. She worked as a checkout operator in a supermarket. Her fortnightly income had reduced by approximately $200. She had married her partner. She had taken out loans totalling $12,500. Her income did not cover her expenses. In her oral evidence she said that her husband covered the deficit but there were fortnights when he could not 'make it up' and they had to 'juggle [their] accounts'.[9] Jodee and her husband continued to live in rental accommodation.
The Deceased's parents
[9] ts 30.6.
The Deceased's father Francis died on 17 January 2016. At the time of his death he and his wife owned their own home as joint tenants and had approximately $33,000 in a joint account. The home was sold. The Deceased's mother (aged 93) currently lives in a low care facility. She has cash savings of approximately $316,000 and has provided a nursing home bond of $550,000. She is in receipt of a weekly pension that meets her weekly expenses.
John's position
John did not wish to provide details of his personal financial position and recorded in one of his affidavits that he understood that this might lead the court to conclude that he is not in financial need.[10]
Helen's position
[10] Exhibit D8 par 2.
Helen is employed as a Library Officer and was so employed at the date of the Deceased's death. She has been living in a de facto relationship with her partner since 2005. Her partner is employed. They have no children. She and her partner purchased the 'three bedroom two bathroom' property in which they live for $550,000 in 2007. They have paid off the mortgage debt on their home. Although their incomes are modest, Helen and her partner's combined income cover their living expenses and they have surplus income that they are able to invest in their share portfolio. Helen has a margin loan facility which she uses for investing in shares on which she owes approximately $16,000. The combined value of her share portfolio and her accrued superannuation is approximately $300,000.
Kai's position
There was no direct evidence about Kai's financial position and no evidentiary material from which inferences as to her financial position can be drawn with any confidence. The most that can be inferred is that the Deceased considered that Kai was in the need of some financial support.
Relevant Legal Principles
The legal principles governing an application such as this were not in dispute between the parties.
Section 6(1) of the Act provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement of life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Section 7(1)(c) of the Act specifies those applicants who are eligible under s 6(1) and includes a child of the deceased living at the date of the death of the deceased.
There is no dispute that both the plaintiffs are eligible persons.
The two‑stage test
It is well established that on an application under s 6(1) of the Act, the Court is required to carry out a two-stage process.[11]
First Stage
[11] Lemon v Mead [2017] WASCA 215 [50] (Buss P); Dean v Collins (No 2) [2015] WASCA 151 [24] (Chaney, Martin CJ & Buss J agreeing); Daniels v Hall (as admin of Estate of Daniels [2014] WASC 152 [157] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ, Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2004) 221 CLR 191, 212 - 213 [56]; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209.
The first stage calls for the determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of the applicant. This is described as the 'jurisdictional question' which is to be determined as at the date of death of the testator.[12]
Second Stage
[12] Lemon v Mead [54] (Buss P).
If it is determined that the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of the applicant, then the Court, in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order.[13] In determining that question, it is necessary to consider an applicant's financial position, and his or her need for, and moral claim to, provision from the estate, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty, and the size of the estate, as at the date of the testator's death.[14]
[13] Lemon v Mead [56] (Buss P).
[14] Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, 131 (McLure JA; see also Singer v Berghouse (210) (Mason CJ, Deane & McHugh JJ); Kitson v Franks [35] (Parker J) [10] (Malcolm CJ agreeing), [20] (Kennedy J agreeing).
The jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the Judge. The decision made at the second stage, by contrast, involves an exercise of discretion in the accepted sense.[15]
The terms 'maintenance', 'support' and 'advancement'
[15] Lemon v Mead [52] - [53] (Buss P).
The terms 'maintenance', 'support' and 'advancement' in s 6(1) of the Act encompass not only provision for the supply of the necessaries of life, but also extend to provision over and above a mere sufficiency of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life.[16] In exercising the discretion under s 6(1) of the Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant.[17]
[16] Vigolo v Bostin [115] (Callinan & Heydon JJ).
[17] Lemon v Mead [58] (Buss P).
The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances,[18] including a determination of what is right and proper according to accepted community standards.[19]
[18] Lemon v Mead [65] (Buss P).
[19] Daniels v Hall [132] (EM Heenan J).
Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it. The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.[20]
Adult children
[20] Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ); Coates v National Trustees Executors and Agency [1956] HCA 23; (1956) 95 CLR 494, 505 - 507 (Lowe J); Dun v Dun [1957] HCA 91; (1957) 99 CLR 435, 331 (Dixon CJ, Kitto & Taylor JJ); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 499 (Gibbs J); Bondelmonte v Blackensee [1989] WAR 305, 307 (Malcolm CJ); Lemon v Mead [66] (Buss P).
Whether a different approach is to be taken in the case of adult children has been discussed in a number of cases. For example, in In re Sinnott, Fullagar J stated:[21]
No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.
[21] In re Sinnott [1948] VLR 279, 280.
In Hughes v National Trustees Executors and Agency Co of Australasia Ltd Gibbs J said:[22]
In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependents who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.
[22] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 - 148.
More recently, the considerations to be borne in mind with respect to claims by adult children were conveniently summarised by Hallen J in Wheat v Wisbey:[23]
[23] Wheat v Wisbey [2013] NSWSC 537 [128].
(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.
(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons.
(e)There is no need for an applicant adult child to show some special need or some special claim.
(f)The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
(g)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim. (citations omitted)
Disentitling Conduct
The character or conduct required to disentitle an applicant to provision under s 6(3) of the Act must be of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator.[24] Whether an applicant is disentitled depends not only on the nature of the conduct itself, but also, to some extent, on the strength of the applicant's need or claim to provision from the estate of the deceased.[25] It was not alleged that Jeremy or Jodee had engaged in disentitling conduct.
Estrangement
[24] Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117, 127 (Dixon CJ, Kitto & Taylor JJ).
[25] Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (156) (Gibbs J).
In Family Provision Act cases which involve estrangement such as the present case, it is important to keep in mind the observations made by the Court of Appeal in Lathwell v Lathwell.[26] In that case, the Court stated:[27]
The word 'estrangement' does not in fact describe the conduct of either party. It is merely the condition which results from the attitudes or conduct of one or other or both of the parties. If the estrangement is entirely caused by the unreasonable conduct or attitudes of the testator and sustained by the unreasonable conduct of the testator, then the estrangement alone could not amount to disentitling conduct on the part of the applicant.
[26] Lathwell v Lathwell [2008] WASCA 256.
[27] Lathwell v Lathwell [33].
Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case.[28] Acrimony or estrangement does not necessarily destroy the bonds of parental ties.[29] The nature of the estrangement and the underlying reason for it is relevant to an application under the Act.[30] In Palmer v Dolman, Ipp JA, after a review of the cases observed that:[31]
[T]he mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.
[28] Lathwell v Lathwell [33].
[29] Diver v Neal [2009] NSWCA 54 [27].
[30] Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 [88] - [94]; Foley v Ellis [2008] NSWCA 288.
[31] Palmer v Dolman [110].
There is no rule that, irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, the claimant is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.[32]
[32] Underwood v Gaudron [2014] NSWSC 1055, [231] (Hallen J).
The court should accept, however, that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years'.[33] This is even more so 'where that callousness is compounded by hostility'.[34]
[33] Ford v Simes [2009] NSWCA 351 [71] (Bergin CJ, Tobias JA & Handley AJA agreeing).
[34] Ford v Simes [71].
The fact that an applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships during those years, is a relevant consideration.[35] Indeed, where an applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. The Act permits the court to consider the character and conduct of the applicant at the second stage of the process.[36] Attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.[37]
[35] Keep v Bourke [2012] NSWCA 64 [30] (Macfarlan JA).
[36] Underwood v Gaudron [231] (Hallen J).
[37] Andrew v Andrew [2012] NSWCA 308 [49] (Basten J).
Finally, the comments of Sackville AJA in Foley v Ellis are apposite and bear repetition:[38]
[It should be observed that] care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.
[38] Foley v Ellis [102].
Disposition
The jurisdictional question
I have concluded the Will did not make adequate provision for either Jeremy or Jodee. My reasons for arriving at this conclusion are as follows.
First, I find that:
(i)Jeremy and his wife Joanne are able to maintain themselves and their son out of their own resources.
(ii)Jeremy does not need assistance in meeting the financial burdens placed on him by family life and those financial burdens otherwise assumed by him and Joanne.
Those findings do not, however, bring an end to the inquiry as to whether the Will makes adequate provision for Jeremy's maintenance, support, education or advancement in life.
It is necessary to consider whether the Will makes adequate provision for Jeremy's advancement in life given the filial relationship and accepted community standards. Put in other words, did Jeremy have a moral claim on the Deceased's estate?
In my judgment, Jeremy had a moral claim on his late father's estate for provision that served the dual purposes of providing him with a buffer against the financial exigencies of life and providing him with some assistance in improving his prospects in life.
Second, I find that Jodee's financial position is parlous. Her ability to earn an income using her tertiary qualifications has been reduced as a result of the accident suffered by her and it is reasonable to infer that her depressive illness also adversely affects her earning capacity. Although Jodee and her husband maintain themselves out of their combined incomes, they have to juggle their finances to make ends meet. Jodee has no capital. She and her husband live in rented accommodation. It is not unreasonable to suppose that had the Deceased known of Jodee's financial position and health difficulties at the time of his death he would have made some provision for her. As with Jeremy, I consider that Jodee has a moral claim on her father's estate for provision that would serve the dual purposes that I identified in considering Jeremy's position.
Third, this is not a case where those who stand to benefit from the disposition of the Deceased's estate under the Will have stronger moral claims on the estate than those of Jeremy or Jodee. The Deceased's father died after the Deceased. The Deceased's mother's needs are adequately met from her own resources. I infer from the fact that John has not adduced evidence of his financial position that he has no unmet financial needs.
Helen's assets are relatively modest but it cannot be said that she is in need of provision from the Deceased's estate. As I observed earlier in these reasons, I cannot make findings about Kai's financial position. The most that could be inferred is that the Deceased thought that Kai had financial needs that she could not meet and this is why he made payments to her, but such an inference does support the conclusion that she was, in fact, in a position in which she could not meet her financial needs.
Fourth, I do not consider that the estrangement between Jeremy and Jodee severed the parent and child relationships so as to extinguish Jeremy and Jodee's moral claims. Family relationships are complex. Analysing such relationships is fraught with difficulty. Those difficulties are compounded when the analysis is attempted years after the relevant events on the basis of limited evidence.
Subject to those cautionary observations, my assessment is that primary responsibility for the estrangement should not be attributed to Jeremy and Jodee. They were teenagers when the estrangement began. Jodee was only 15 years of age and there was no evidence of any conduct on her part that would explain why the Deceased did not wish to see her again. It must have been a hurtful experience for Jodee. It was an experience that I infer informed her attitude towards the Deceased as she matured. Jeremy was 19 years of age when he last spoke to the Deceased. Their last conversation was an angry one. Given Jeremy's relative immaturity at that time, I consider that the responsibility for re‑establishing the relationship lay with the Deceased. It would not be unreasonable for Jeremy and Jodee to feel that the Deceased had rejected them. It might be observed quite fairly that as they grew older it was as open to Jeremy and Jodee, as it was to the Deceased, to attempt to re‑establish a relationship but they did not do so.
The discretionary question
Having found that the disposition of the Deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of Jeremy and Jodee, I must now exercise the discretion to make such provision as I think fit, taking account the relevant facts as they now exist. In doing so I am guided by the considerations that would inform a just and wise testator.[39]
[39] Pontifical Society for the Propagation of the Faith v Scales (20) (Dixon CJ).
I have already set out my findings on the respective financial positions of Jeremy and Jodee, their needs, the nature and strength of their moral claims on the Deceased's estate, and the moral claims of the beneficiaries under the Will. All of these are matters that I must take into account when exercising my discretion. I must also take into account the size of the estate which, in this case, is modest. I must have regard to the totality of the relationship between Jeremy and Jodee and the Deceased. This includes the fact that they were estranged.
I remind myself that the discretion is not to be exercised for the purpose of making what may appear to the court to be a fair distribution of the Deceased's estate.[40]
[40] Lemon v Mead [244] (Buss P).
I also remind myself that freedom of testamentary disposition is a relevant and important consideration.[41]
[41] Devereaux-Warnes v Hall [91] (Buss JA).
Counsel for Jeremy and Jodee, Mr Singh, submitted that a wise and just testator would have left his entire estate to Jeremy and Jodee. The reasoning that underpinned this submission was that Jeremy and Jodee were the Deceased's children and their needs were greater than those of the beneficiaries under the Will. I do not accept this submission. In my judgment, it does not reflect the importance to be attached to the Deceased's freedom to dispose of his estate as he saw fit. It does not reflect the fact that Jeremy and Jodee were estranged from the Deceased. Whilst the estrangement did not negate their moral claims, it is nevertheless a relevant factor.
I consider that Jodee's needs are greater than those of Jeremy. This was acknowledged by Mr Singh, who submitted that the residuary estate should be divided in the proportions of 65:35 in Jodee's favour. I consider that adequate provision for Jodee's proper maintenance, support, education and advancement in life requires that she be provided with some capital that will achieve the dual objectives to which I referred earlier in these reasons: a buffer against the financial exigencies and assistance with her prospects in life. I consider that the sum should be sufficient to enable her to pay off her debts, put some capital aside to cope with unforeseen events and provide some assistance to Jodee should she decide that she wishes to purchase a home. Having regard to those matters in my assessment, a disposition of 35% of the Deceased's residuary estate would be adequate and proper provision for Jodee.
In Jeremy's case, I consider that the dual objectives to which I have referred can be achieved with a more modest provision from the Deceased's estate. In assessing what is adequate and proper, I have in mind an amount that would assist Jeremy to cope with expenses such as the expense of IVF treatment and the medical expenses generated by his son's condition. I understand that these are past expenses but they are examples of the kind of expenses that I have termed 'financial exigencies'. Having regard to those matters, in my assessment, a disposition of 20% of the Deceased's residuary estate would be adequate and proper provision for Jeremy.
In approaching the exercise of the discretion I consider that the Deceased's mother's claim on the estate is, in relative terms, a weak one.
I consider that adequate provision for Jodee and Jeremy can be achieved by adjustments to the distribution of the Deceased's residuary estate as set out in the table below.
| Beneficiary | Disposition under Will | Disposition ordered |
| Patricia Margaret Lysaght | 15% | Nil |
| Francis Harland Lysaght | 15% | Nil |
| John Francis Lysaght | 15% | 10% |
| Uthai Pradabthong | 20% | 10% |
| Helen Maree Lysaght | 35% | 25% |
| Jeremy Lysaght | Nil | 20% |
| Jodee Lysaght | Nil | 35% |
I will hear the parties in relation to the form of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO TOTTLE J
29 MARCH 2018
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