Marks v Murray Philip WILLIAMS as Executor of the Will of the Deceased
[2002] WASC 197
MARKS & ANOR -v- MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased & ORS [2002] WASC 197
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 197 | |
| Case No: | CIV:1579/1999 | 2 AUGUST 2002 | |
| Coram: | MASTER SANDERSON | 13/08/02 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Estate distributed half to the plaintiffs and half to second defendant | ||
| B | |||
| PDF Version |
| Parties: | DIANE KAYE MARKS KAREN MARKS MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased JOAN LILLIAS MARKS LYNETTE ANNE CAULDLE |
Catchwords: | Inheritance Act application Adult daughters having moral claim on estate of deceased Turns on own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Randell v Randell [1999] WASC 146 Re Allen (Dec); Allen v Manchester [1922] NZLR 218 Re Green [1951] NZLR 135 Singer v Berghouse (1994) 181 CLR 201 Allardice v Allardice (1910) 29 NZLR 959 Bosch v Perpetual Trustees Co Ltd [1938] AC 463 Clarke v The Public Trustee as Executor of the Estate of Henry Frederick Wynne (Dec) [1999] WASC 172 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 McCosker v McCosker (1957) 97 CLR 566 Persichillo v Campbell-Muir, unreported; SCt of WA; Library No 9006; 23 August 1991 Re Jolliffe [1929] St R Qd 189 Re Neagle [1957] 33 NZLJ 280 Stott v Cook (1960) 33 ALJR 447 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
The Will of ALBERT JOHN MARKS late of 88 Vincent Street, Mt Lawley, Western Australia, Mayor, Deceased
- KAREN MARKS
Plaintiffs
AND
MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased
First Defendant
JOAN LILLIAS MARKS
Second Defendant
LYNETTE ANNE CAULDLE
Third Defendant
(Page 2)
Catchwords:
Inheritance Act application - Adult daughters having moral claim on estate of deceased - Turns on own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972
Result:
Application allowed
Estate distributed half to the plaintiffs and half to second defendant
Category: B
Representation:
Counsel:
Plaintiffs : Mr M N Solomon
First Defendant : Mr J A Milner
Second Defendant : Mr N R Cogin
Third Defendant : No appearance
Solicitors:
Plaintiffs : Gadens Lawyers
First Defendant : Grant Milner & Associates
Second Defendant : Corsers
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Randell v Randell [1999] WASC 146
Re Allen (Dec); Allen v Manchester [1922] NZLR 218
Re Green [1951] NZLR 135
Singer v Berghouse (1994) 181 CLR 201
(Page 3)
Case(s) also cited:
Allardice v Allardice (1910) 29 NZLR 959
Bosch v Perpetual Trustees Co Ltd [1938] AC 463
Clarke v The Public Trustee as Executor of the Estate of Henry Frederick Wynne (Dec) [1999] WASC 172
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
McCosker v McCosker (1957) 97 CLR 566
Persichillo v Campbell-Muir, unreported; SCt of WA; Library No 9006; 23 August 1991
Re Jolliffe [1929] St R Qd 189
Re Neagle [1957] 33 NZLJ 280
Stott v Cook (1960) 33 ALJR 447
(Page 4)
1 MASTER SANDERSON: Albert John ("Jack") Marks died on 2 October 1998. Jack Marks was a true Western Australian character. He was a one-time communist, a life-long Marxist, a committed unionist and a passionate supporter of the East Perth Football Club. After his retirement from his position as a union organiser he pursued a career in local government - first as Deputy Lord Mayor of the City of Perth and finally as Lord Mayor of the City of Vincent. He left a Will dated 17 January 1991. Probate of that Will was granted to the first defendant on 11 February 1999. The plaintiffs say that the Will of the deceased did not make adequate provision for them. They bring their claim under the provisions of the Inheritance (Family & Dependants Provision) Act1972 ("the Act"). The second defendant is the sole beneficiary of the estate of the deceased under the terms of his Will. The third defendant is the eldest daughter of the deceased. Although she has been joined as a third defendant to these proceedings she has taken no part in the action. She was not a beneficiary under the Will and no decision can affect her position in any way.
The facts
2 There have been 22 separate affidavits filed in support of and in opposition to the application. Once the affidavits are stripped of their invective the position that emerges is relatively straightforward. The first-named plaintiff is the second child of the deceased and Una Bernice Marks. She was born on 29 June 1951. She was 47 years of age at the date of the death of the deceased and is now 51 years of age. The second-named plaintiff is the youngest child of the deceased and Una Bernice Marks and was born on 5 April 1955. She was 43 years of age at the date of the death of the deceased and is now 47 years of age. The second defendant has sworn two affidavits in opposition to this application. The first affidavit was sworn on 8 November 1999 and the second on 31 July 2002. In her affidavits she does not give her date of birth. However she does state in her first affidavit that in 1984 she was 43 years of age: see par 13. At present then, she is 61 years of age. There are no children of the deceased and the second defendant.
3 It is clear from the affidavit evidence of the plaintiffs, and it is not disputed by the second defendant, that throughout their childhood and adolescence the deceased was a remote and emotionless figure in their lives. The picture that emerges is of a man unhappily married and passionately committed to his political beliefs and his work. He took no real interest in his children. He forgot their birthdays, he ignored their
(Page 5)
- achievements - sporting and academic - and he displayed no physical affection at all. Both of the plaintiffs emerged from their childhood emotionally scarred, bitter and resentful. The effect of their father's indifference appears to have affected the first-named plaintiff in particular; but there is no doubt both the plaintiffs have been significantly affected, each in their own way.
4 There is nothing to be gained by trawling through the minutia of the relationship between the plaintiffs and their father. There is no suggestion that either of them behaved in such a way as would amount to what is sometimes called disentitling conduct: see Re Green [1951] NZLR 135 at 142 - 143. This is clearly a case where any distance in the relationship between the deceased and the plaintiffs was caused by the deceased.
5 It is also the case that towards the end of his life the deceased seems to have had a limited reconciliation with the plaintiffs. So far as the first-named plaintiff is concerned, after a long period of estrangement she was reunited with her father in or about 1997 when the deceased was diagnosed with cancer. Thereafter there was regular contact. It was perhaps too late to establish any emotional bond between father and daughter, but it is clear that in the 12 months leading up to the death of the deceased the first-named plaintiff provided what comfort and solace she could to her father.
6 The second-named plaintiff kept in more frequent contact with the deceased. It was she who urged the first-named plaintiff to resume contact with the deceased. She was attentive to his needs and concerned for her father's welfare. As with her sister there is no indication in the evidence that the deceased made any real attempt to establish a close emotional bond with the second-named plaintiff. The second-named plaintiff appears to have done her best in difficult circumstances.
7 The second defendant says in her first affidavit that her first marriage broke down in 1980. She was left supporting four of her five children. She was divorced in 1981 and she undertook a bachelor of arts degree majoring in social and political theory at Murdoch University. She supported herself and her family between 1981 and 1985 on supporting parents' benefit and with tertiary education assistance. She also undertook some part-time jobs. She met the deceased in January 1981 and soon after commenced a relationship. In 1984 the deceased and the second defendant took up residence together.
(Page 6)
8 In 1986 the second defendant moved to Broome to be with her daughter who had cancer. She returned to Perth in 1987 but did not move in with the deceased. She bought her own property in Inglewood. She says that by this stage her relationship with the deceased had "cooled down somewhat".
9 The relationship was rekindled and in mid-1987 the deceased and the second defendant recommenced co-habitation. In 1990 they were married. In February 1997 the second defendant took up a teaching position in China. She returned to Perth in June of that same year when she learned that the deceased had cancer.
10 Much is made in the various affidavits of the relationship between the deceased and the second defendant. The plaintiffs suggest that the relationship had broken down completely some years prior to the death of the deceased. The second defendant says that the relationship was always close and warm and she was the central figure in the deceased's life right up until his death. In my view it is unnecessary to reach any firm conclusion about the nature of this relationship. It is clear that the deceased and the plaintiff lived together on and off for some 12 years and that they were husband and wife for eight years. The deceased clearly played a significant part in the family life of the second defendant and her children and it appears, perhaps paradoxically, that he enjoyed a closer relationship with his step-children than he did with his natural children. Once again it could not be said that there is anything in the relationship between the deceased and the second defendant that could be in any way regarded as disentitling conduct.
11 The net value of the estate of the deceased has been agreed between the parties to be in the region of $350,000. The only asset of the estate is a property at 88 Vincent Street, Mt Lawley (the Vincent Street property). The first defendant filed an affidavit sworn 1 February 2002 which annexes as "MPW2" a residential valuation of the Vincent Street property. That valuation was undertaken in January 2002. It put the value of the Vincent Street property at $385,000. Given the surge in house prices in recent times, the Vincent Street property is no doubt valued at considerably more now than it was six months ago. However, both parties are prepared to accept the January 2002 valuation. The property is mortgaged in an amount of $35,000. There is just over $5000 owing in rates and taxes. A statement of assets and liabilities (annexure "MPW1" to the affidavit of the first defendant) shows a 1982 Datsun Bluebird sedan valued at $1000 as an asset of the estate. The second defendant has driven the vehicle since the date of death of the deceased. She says it now
(Page 7)
- has no residual value at all. In any event, it is insignificant in the context of the estate overall and I mention it only for the sake of completeness.
12 The circumstances in which the deceased acquired the Vincent Street property are of some interest.
13 Prior to 1984 the deceased did not own and had never owned any real estate. He and his family had always lived in rented accommodation. Ownership of land offended his Marxist principles. In 1984 he succumbed to the blandishments of the bourgeois capitalist state. An acquaintance offered to buy the deceased a property to the value of $45,000. The deceased acquired a property in Stirling Street, Highgate. In 1987 he sold that property and moved to Harley Street, Highgate. That property was sold in 1988 and in the same year the Vincent Street property was purchased. The purchase price was $170,000. The second defendant says that she contributed $15,000 towards the purchase of the Vincent Street property subsequent to the sale of her house in Inglewood. She also says that she spent a further $6000 on improvements to the house. Her evidence on this issue is unchallenged and I accept it.
14 It is worthy of note that the second defendant has been living in the Vincent Street property rent free since the date of death of the deceased. Strictly speaking, the Vincent Street property is an asset of the estate and the first defendant, as executor of the estate, could have been expected to charge the second defendant rent for occupying the premises. Given the state of the second defendant's finances and the fact that the property was left to her in the Will, it is perhaps understandable that no rent has been charged. Nonetheless, this is a matter which must be taken into account in looking at the assets of the estate.
15 The financial position of each of the plaintiffs and the second defendant has been the subject of detailed evidence. Turning first to the first-named plaintiff, her position as at the date of death of the deceased is set out in par 23 through to par 26 of her affidavit of 29 September 2000. By way of background I should say that it is clear that the first-named plaintiff suffers from indifferent health. She has had from time to time emotional problems which have interfered with her capacity to work. By profession she is a teacher. As at October 1998 she was receiving workers' compensation benefits of $513 per week. Her expenses all but matched her income. She had half interest in a home in Maylands with her partner. Her interest in the property was somewhere between $125,000 and $130,000. She was responsible for a mortgage of just over $23,000. She had a motor vehicle of modest value, $7000 in cash and
(Page 8)
- some superannuation. I think it is fair to say that while she was not impoverished, she was no more than reasonably placed.
16 The second-named plaintiff was in a similar position. She set out her financial position as at October 1998 at par 5 to par 8 of her affidavit of 3 October 2000. Her occupation is human resources coordinator. Her income was $614.75 per week and as with her sister, that was almost matched by her expenses. The second-named plaintiff purchased her home in Bayswater in 1994 for just over $158,000, with a mortgage of just over $105,000. (Both the value of the property and the outstanding mortgage date from 1994). She too owns a car of modest value, has preserved superannuation and negligible cash assets. She is single with no dependent children. As with her sister, she is reasonably comfortably placed without being in a strong financial position.
17 I will deal with the financial position of the second defendant as at the date of hearing later in these reasons. However, for present purposes it is enough if I say that as at the date of the death of the deceased, her only income was a widow's pension from the Department of Veteran's Affairs. She owned no property in her own right and she appears to have had few assets other than personal belongings and some furniture. There is no mention of any superannuation entitlement.
The law
18 This application is brought under s 6(1) of the Act. The section is in the following terms:
"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 in life of any of the persons mentioned in section 7 of this Act 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."
19 The approach to be adopted in a case such as this was considered by Malcolm CJ in Bondelmonte v Blanckensee [1989] WAR 305 where his Honour said (at 307):
(Page 9)
- "On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of the death of the deceased: Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494. If that question be answered in the affirmative, 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. Coates v National Trustees Executors & Agency Co Ltd (supra); Dun v Dun (1957) 99 CLR 325 at 331; Goodman v Windeyer (1980) 144 CLR 490."
20 This passage was referred to with approval by the High Court in Singer v Berghouse (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208 - 210. Their Honours said:
"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate.
…
The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant, having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and
(Page 10)
- the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."
21 The Court then went on to consider with some precision the nature of the two-stage inquiry. Their Honours said (at 210 - 211):
"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decisions stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
…
Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of the hearing …
The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense."
22 In determining the jurisdictional question Courts have approached the matter by asking what disposition would have been made of his estate by a wise and just testator. Salmond J in Re Allen (Dec); Allen v Manchester [1922] NZLR 218 at 220 put the position as follows:
"The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.
(Page 11)
- The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children, had he been fully aware of all the relevant circumstances."
23 It is worthy of note that in Singer v Berghouse the majority doubted the utility of this "moral obligation" test (see page 209). It was suggested it may amount to "a gloss on the statutory language". The status of the "moral obligation" test after Singer v Berghouse, has been the subject of some debate. The Courts of Appeal in New South Wales and in Victoria have taken different approaches. I considered the position in Western Australia in Randell v Randell [1999] WASC 146 at [23] to [29]. I concluded that the "moral obligation" test still applied in this State. Both counsel in this case approached the matter on that basis.
Adequacy of provision
24 This is not a case where the claim of the plaintiffs is founded upon a failure of the deceased to provide for the proper maintenance or support of the plaintiffs. Neither is in a position where they are dependent upon the bounty of the deceased in the future. It is true that the first-named plaintiff faces a somewhat uncertain future once her entitlement to weekly payments under her disability insurance is extinguished. But she is not without assets and clearly she is not without ability. To date she has made much from limited opportunities. The second-named plaintiff is in full-time employment and there is no reason to believe her position will change.
25 This, in my view, is one of those cases where the moral obligation on the testator arises out of his relationship with the plaintiffs. Reading the affidavits of the plaintiffs, it is clear just how much they were deprived of and missed the love and support of their father. At the very end of his life the deceased seems to have appreciated the extent to which he had failed as a parent. There was nothing more that the plaintiffs could have done to establish and maintain their relationship with their father. There was certainly nothing that they did which could be seen as disentitling them in any way to consideration in their father's Will. In my view, both have a moral claim.
26 If the question of moral claim is put to one side and the analysis set out by the majority in Singer v Berghouse is adopted, in my view it still leads to a conclusion that the plaintiffs satisfy the jurisdictional
(Page 12)
- requirements of the Act. It is true that the deceased's estate is not large and that both applicants are, as I have said, in a reasonable financial position. But there is sufficient in the estate to allow for a disposition in favour of the plaintiffs. Neither of the plaintiffs is in such a strong financial position that such a disposition would be of no consequence. The relationship between the deceased and the plaintiffs, in my view, warrants some award in their favour. While there is no doubt that the second defendant was entitled to consideration by the deceased, there is no reason why she should have received the whole of the estate.
Proper provision
27 The question then arises as to how the estate should be distributed. Since the date of the death of the deceased the financial position of the plaintiffs and the second defendant have not changed significantly. The second defendant does say in her affidavit of 31 July 2001 that she is not in a position to retain the Vincent Street property. She says that her income would not allow her to undertake the necessary maintenance and discharge the regular outgoings. Clearly she intends to sell the Vincent Street property and to buy suitable accommodation. She does not say what alternative accommodation is available and what the cost might be.
28 I have concluded that the proper distribution of the estate would be to order the sale of the Vincent Street property, allow the second defendant to retain half of the net residuary value of the estate and to divide the other half equally between the plaintiffs. It is true that there is some discrepancy between the financial position of each of the plaintiffs - it would seem, on balance, the first-named plaintiff is not as well placed as the second-named plaintiff. But the position is marginal. It is also the case that if anything, the moral claim of the second-named plaintiff may be slightly greater than that of the first-named plaintiff. But to attempt to draw such fine distinctions is inappropriate and, in my view, in this case, unnecessary. A fair disposition of the estate would see each of the plaintiffs share equally in half of the residual value of the estate.
29 In reaching this conclusion I have taken into account the $21,000 contributed by the second defendant to the Vincent Street property, $15,000 to the purchase price and $6000 for improvements. In my view, this is balanced by the fact she has lived in the Vincent Street property rent free since the date of death of the deceased. The overall position is not affected.
(Page 13)
30 The costs of all parties should be taxed and paid out of the estate. I will hear the parties as to the precise form of orders.
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