Marshall v Redford

[2001] NSWSC 763

CITATION:	Marshall & Ors v Redford [2001] NSWSC 763
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3915 of 1999
HEARING DATE(S):	29/08/2001
JUDGMENT DATE:	29 August 2001
PARTIES :	Margaret Susan Marshall, Stuart Allan Simpson & Gordon Simpson v Raeleen Redford
JUDGMENT OF:	Master Macready at 1

COUNSEL :	J. Trebeck for plaintiffs J. Armfield for defendants
SOLICITORS:	Stockman & Evans for plaintiffs Smythe & Mallam for defendant
CATCHWORDS:	Family Provision. Application by children in respect of an estate which passed to the RSPCA. Orders for legacies to the plaintiffs.
DECISION:	Paragraph 27

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the Estate of the late Edward Simpson who died on 14 March 1998 aged 85 years. The deceased was survived by his three children who are the plaintiffs. The second plaintiff’s claim has been compromised in the sum of $91,500 subject to my approval.

2   By his will dated 11 March 1987 the deceased left the whole of his estate to his second wife and in default to the RSPCA. His second wife predeceased him and thus the whole of his estate passes to the RSPCA under his will. The estate property has been sold and the estate reduced to cash of $397,453.58. The plaintiffs’ costs in this matter are estimated at $30,000 and those of the defendant at $20,000. If the plaintiffs are successful the estate will amount to $347,453. After taking off the second plaintiff’s claim the amount left in the estate is $255,453.

3   I will deal with the chronology of the family history before coming back to the principal matters in dispute. The second plaintiff was born on 5 October 1941, the first plaintiff on 30 October 1943 and the third plaintiff on 25 January 1945. In 1958 the second plaintiff migrated to Australia, he being sponsored by the Big Brother movement. In the 1960s the remaining family had a conference and decided to migrate as a family to Australia. In fact, the first plaintiff Margaret, migrated earlier in 1964. In 1967 the deceased and his wife also migrated. At that stage the third plaintiff Gordon, decided to remain in Wales. Tragically the plaintiff’s mother died in October 1970 soon after they arrived in Australia. Thereafter the deceased and the children continued to live together.

4   In 1971 the first plaintiff went to Scotland for a visit and came back unfortunately ill with typhoid. She eventually married in 1975 to John Edward Marshall and they had no children. Then in September 1976 the deceased married for the second time to Ruth Margaret Simpson. Neither the first or second plaintiffs were aware of this marriage until some months after it happened. By December 1980 the third plaintiff Gordon Simpson, commenced his employment with the post office as a postman in Wales. This position he still holds.

5   In 1984 to 1985 there was a break in the contact between the first plaintiff and the deceased. This came about because of the attitude of the deceased’s second wife. She effectively frustrated any attempts of contact by the first plaintiff. Ultimately that was resolved in 1988 when the first plaintiff received a letter saying that her father was in a nursing home and he wanted to have further contact.

6   Apparently the deceased came into contact with the hospital in 1986 where he was admitted for a broken leg and it seems from that stage he had difficulties with recollection. There was apparently some impairment to his mental functioning. He went home again in April 1996 and December was back to the Ryde Hospital. It was at about this stage that the evidence indicated that the deceased’s second wife was instrumental in having a will prepared which is the one in respect of which there has been a grant of probate. That evidence tends to suggest that she was instrumental in the terms of the residual gift.

7   In February 1987 the deceased was admitted to Aldersgate Nursing Home and he remained there for sometime. The will was signed in March 1987. In 1988 there was a letter from the deceased’s second wife to the first plaintiff advising of the fact that the deceased was in the nursing home. This led to the first plaintiff resuming contact. Contact was also re-established at the time by the second plaintiff.

8   Meanwhile back in Wales, the third plaintiff Gordon Simpson’s wife had in 1988 purchased a business selling knitting wool and accessories for some 9,000 pounds. This was not successful and in February 1991 she was made bankrupt.

9   In 1995 the first plaintiff suffered a stroke and was thereafter unable to work. She was however well enough to be appointed manager of the deceased’s property and affairs by the Guardianship Board. On 14 August 1996, Ruth Simpson, the deceased’s second wife died. Thereafter the first plaintiff arranged a transfer of the deceased to Camden Nursing Home which was nearer to her. The deceased’s former home was sold and the proceeds given to the Protective Office.

10   In this last year before the deceased’s death on 14 March 1998, the first plaintiff extended considerable care for the deceased. She visited him many times a week, bought him clothes, arranged to be there at lunchtime to feed him and assisted as best she could, notwithstanding that the deceased by this time could not recognise her and know the relationship.

11   Letters of Administration with the will annexed were granted on 13 January 2000. In May this year the second plaintiff’s claim was settled.

12 In applications under the Family Provision Act, the High Court in Singer v Berghouse, (1994) 184 CLR 201 set out the two stage approach the court must take, and at page 209 said the following:

“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 Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

13   I turn to look at the situation of the plaintiffs. First the plaintiff Margaret Marshall. She is married, 57 years of age and without dependents. The assets of both herself and her husband are as follows. They have a home and a five acre block at Wollombi worth about $400,000. They have cash of $91,350. They have interests in superannuation funds of $268,000. They own two old cars which are well overdue for replacement. As far as income is concerned, the plaintiff Margaret Marshall had a stroke in 1995 and has been unable to work since. She gets a disability pension of $58.50 per week. Her husband is a truck driver. His previous full-time employment terminated and he now works as a permanent part-time employee of an energy company. He receives $28,000 per annum. This comes to about $526 per week. Their expenses fully consume that income which is not substantial. There is evidence that Mr Marshall’s job is not that secure as there are restructurings from time to time within the employer for whom he works.

14   As far as the relationship with the deceased is concerned, the plaintiff preceded the deceased to Australia and in fact set up a flat and paid for the bond and other necessary matters, where the deceased and his wife resided when they came to Australia. She kept in contact with the deceased in a number of different ways and there was only a break in contact between 1985 and 1988. That was not the fault of the plaintiff and as soon as she was able to re-established it she did and spent considerable effort looking after the deceased in the last years of his life. There is nothing in the absence of contact in that period which in any way diminishes the claim which this plaintiff may have on the estate.

15   It is necessary of course to see how she says she has been left with inadequate and no proper provision for her maintenance, education and advancement in life. A number of matters are put forward by her in the affidavit evidence. They urgently need to replace the car at a cost of $25,000, do some repairs to the roof of the garage costing $6,000, some painting $1,600, and a new refrigerator $1,500. She asks for a legacy of some $60,000. I will come back to a consideration of her financial situation which was also advanced as a reason for saying that she had been left without proper provision.

16   The plaintiff Gordon Simpson is married. He is 56 years of age and does not have dependents. As I said, he lives in Wales and works as a postman. His sole assets or his main asset appears to be his home worth 32,000 pounds, on which there is a fixed term mortgage with interest only of $29,000. He has taken a motor scooter on finance for himself to use and a small car on finance so his wife can pursue her present occupation of carer. As I have mentioned, she went bankrupt and that prompted a claim by the Provisional Trustee in 1991 to the plaintiff to acquire the official trustee’s interest in the jointly owned home. That does not seem to have been complied with at the moment as both the plaintiff and his wife own the property. The possibility is that there may be a claim of some 1,500 pounds. Their income is not substantial. He earns 249 pounds per week and his wife earns about 240 pounds per week. It is clear they have a very modest lifestyle. It is rare for them to have holidays and even if they do they only go about 120 miles and stay with relatives. They have never been able to afford to travel to Australia. When he retires the plaintiff Gordon will receive a lump sum payment of 12,000 pounds plus a pension of 78 pounds per week. This will be a very large drop in his income. His immediate needs are 6,000 pounds to render the outside of the home which is no longer waterproof, and 3 to 4,000 pounds to replace some windows. He also would like 200 pounds to do some dental work which he cannot afford at the moment. There is a contingent claim by his wife’s trustee in bankruptcy and he asks for a legacy of $100,000.

17   So far as the relationship with the deceased is concerned, it is clear that at age 22 in 1967 he stayed in Wales when the deceased migrated. Thereafter he maintained contact by mail and no doubt this fell away towards the end of the deceased’s life when he could no longer respond. Effectively the plaintiff did not see his father for the last 30 years of his father’s life.

18   There were submissions that this lack of contact should diminish the claim of the son Gordon. In Day v Perpetual Trustee, a decision of mine on 17 May 2001, I discuss the case law concerning this point. I concluded that discussion of its case law with some references to Walker v Walker, a decision of Young J on 17 May 1996 in these terms:

‘In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point put that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language”. They then say “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 the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.’.

19   Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”

“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.

“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealth child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959 will not alone suffice to empower the court to make an order.”

20   In Walker v Walker, (P27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. ...”

21   In this case there really is no fault which is attributable to either party. The facts of life were that they were separated by distance and did not have the resources to overcome this barrier. However, there is the fact that there was no contact apart from correspondence for 30 years. This is in contrast to Margaret’s situation and this difference in contact must be taken into account in deciding what is appropriate. One also needs to take into account the situation of others having a claim on the bounty of the deceased. The only possible one is beneficiary under the will, the RSPCA. The objects of that body are fairly well known but I will set them out again. They were set out in paragraph 4 of the affidavit of 28 August 2001 which is in the following terms:

“The donations received from members of the public are used for:

(a) enforcing the existing animal welfare laws; The Prevention of Cruelty to Animals Act;

(b) preparing submissions of alleged cruelty throughout the state of New South Wales;

(c) investigating reports of alleged cruelty throughout each state and territory;

(d) routinely inspecting abattoirs, saleyards, markets, pet shops and places where animals are used for public entertainment;

(e) rescuing trapped domestic and wild animals;

(f) generating and sustaining public interest in the welfare of animals through a continuing public relations and education programme;

(g) providing shelter for homeless, unwanted animals.

22   As I have mentioned this provision probably was driven by the deceased’s second wife. There is absolutely no evidence of any contact between the deceased and the RSPCA. The situation is thus quite different from where one has a charity which has benefited the deceased during his lifetime, or with whom the deceased had taken an interest during his lifetime.

23   In these circumstances it seems to me that there is little competition against the claims of the plaintiffs in these proceedings. So far as Gordon is concerned he is in a situation when he retires he will still have large amounts owing on his house and he may well not be able to afford to service that loan on his reduced income. That time is not too far away. He cannot expect that his father should have provided him with a debt-free home. There are many decisions in this court which establishes such a principle. He should however have something to provide for his present needs and the ability to reduce some part of the mortgage so that ultimately he might get to a manageable situation when he retires and his income substantially drops. In my view an appropriate legacy for him is $75,000.

24   Margaret’s case on the other hand is quite difficult. It was submitted that because of her wealth, she is not able to establish that jurisdiction was attracted to her claim. True it is she has a sound asset situation and her articulated needs could be satisfied by use of her present cash resources. There are however the uncertainties of her husband’s employment and they clearly have no prospect of accumulating any further funds. The amount of the superannuation will provide for an income level which I would have thought was of an amount below their present somewhat low level of income.

25   In Annison v Phillips, 4 March 1988, Young J said the following:

“... with a very large estate ... there is a great temptation on a court to be over-generous with other people’s money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community’s eyes she should have made proper provision for, that anyone can legally complain about another person’s will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412.”

26   Although this is not a large estate, there is little competition against the claims of the plaintiffs. There thus may be a more liberal assessment of the moral duty owed, to use his Honour’s expression. One can couple this with the direction of the High Court in Singer v Berghouse, to have regard to “the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who had legitimate claims upon his or her bounty”. One also has to look at the various s 9(3) factors. These of course include care of the deceased by the plaintiff Margaret. Although it is a difficult matter I do think, given the lack of competition that in this case jurisdiction is established. In my view she should receive a legacy of $40,000.

27   The orders I make are these:

1. The plaintiff Margaret Susan Marshall receive a legacy of $40,000.
2. The plaintiff Gordon Simpson to receive a legacy of $75,000.
3. I make orders in accordance with the short minutes of order which I will sign and date today and place with the papers.
4. The first and third plaintiffs costs on a party party basis and the defendants on an indemnity basis to be paid out of the estate of the deceased.
5. The interest on the legacies of the first and third plaintiffs shall run, if not paid within one month of today’s date in accordance with the rates under the Wills, Probate and Administration Act 1898.
6. The exhibits can be returned.

oOo

Last Modified: 09/07/2001