Matheson v Young; Sisson and Wharton v Young
[2018] VCC 436
•12 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| FAMILY PROPERTY LIST |
Case No. CI-17-03817
IN THE MATTER of Section 99 and Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the Estate of MORIE JOAN YOUNG, Deceased
BETWEEN
| CATHRYN MATHESON | Plaintiff |
| v | |
| BRETT LAURENCE YOUNG (who is sued in his capacity as Executor of the Will of MORIE JOAN YOUNG deceased) | Defendant |
- AND -
Case No. CI-18-00433
| JANNETTE KARYN SISSON | First Plaintiff | |
| and | ||
| SANDRA ROBYN WHARTON | Second Plaintiff | |
| v | ||
| BRETT LAURENCE YOUNG (who is sued in his capacity as Executor of the Will of MORIE JOAN YOUNG deceased) | Defendant | |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 April 2018 | |
DATE OF JUDGMENT: | 12 April 2018 | |
CASE MAY BE CITED AS: | Matheson v Young; Sisson & Wharton v Young | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 436 | |
REASONS FOR JUDGMENT
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Applicants the three daughters of the deceased – last will of the deceased setting up an elaborate trust – applicants the beneficiaries under the trust – breach of moral duty to provide – trust failed to adequately address provision for the proper maintenance and support of the applicants - applicants in serious need
Legislation Cited: Administration and Probate Act 1958
Cases Cited: Ansett v Moss & Ors [2007] VSCA 161
Judgment: See Orders annexed to the Judgment.
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APPEARANCES: | Counsel | Solicitors |
| Case No. CI-17-03817: | ||
| For the Plaintiff | Mr J Smith | Slater & Gordon Ltd |
| For the Defendant | No appearance | No appearance |
| Case No. CI-18-00433: | ||
| For the Plaintiffs | Ms U Stanisich | Aitken Partners Pty Ltd |
| For the Defendant | No appearance | No appearance |
HIS HONOUR:
Introduction
1 Morie Joan Young was born on 27 June 1926. She died on 24 October 2016 when she was ninety years of age. She was married to Laurence Charles Young, who died on 11 October 1984.
2 Morie and Laurence had five children:
· Jannette Karyn Sisson (“Jannette”), who is sixty-five years of age
· Sandra Robyn Wharton (“Sandra”), who is sixty-three years of age
· Brett Laurence Young (“Brett”), who is fifty-six years of age
· Sharyn Young-Jones (“Sharyn”), who is fifty-two years of age
· Cathryn Maree Matheson (“Cathryn”), who is fifty years of age.
Morie’s Wills
3 Morie made a Will dated 24 November 2011 by which she divided her estate into five equal parts or shares. Four of those equal parts or shares were to be paid or transferred to Jannette, Brett, Cathryn, Sandra and the fifth equal part or share to be held on trust for two of her granddaughters. Sharyn was excluded.
4 Morie made a second Will dated 14 December 2015 which revoked her first Will and set up what can only be described as an extraordinary and elaborate plan and structure for the disposal of her estate amongst the named beneficiaries. There is nothing to be gained by summarising the content of the Will and its intent, except to say that it ties up the whole of her estate on trust for the named beneficiaries, with Brett as the executor.
5 The quantum of the estate is probably in excess of $1,000,000. This is probably so even after the various costs that will need to be deducted from the gross estate in order to identify the net estate, are taken into account.
The proceedings
6 Jannette and Sandra filed an Originating Motion on 14 July 2017 in the Supreme Court seeking provision for their proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’).[1]
[1]That proceeding was transferred to this Court
7 Cathryn filed an Originating Motion in this Court on 18 August 2017 seeking provision for her proper maintenance and support.
8 The parties, very sensibly, agreed to present both Originating Motions as if there was only one proceeding before me. Again, very sensibly, they agreed to rely upon the material which each individual applicant filed in each proceeding.
9 It is relevant to identify the principal material by reference to a combined Court Book:[2]
[2]Exhibit A. The parties jointly tended their Joint Court Book (“JCB”), pages 49-120, 124-126, 138-216 and 229-231
· Affidavit of Sandra sworn 2 October 2017[3]
[3]JCB 138-146
· Affidavit of Jannette sworn 4 October 2017[4]
[4]JCB 147-159 and seven exhibits “JKS-1” to “JKS-7” at JCB 160-195
· Affidavit of Sandra sworn 28 March 2018[5]
[5]JCB 147-159 and seven exhibits “JKS-1” to “JKS-7” at JCB 160-195
[5]JCB 229-231
· Affidavit of Cathryn sworn 27 November 2017.[6]
· Agreed statement of facts prepared by the applicants.[7]
[6]JCB 49-59 and nine exhibits “CM-1” to “CM-9” at JCB 60-121
[7]Exhibit B
10 The parties objected to Brett’s affidavits being tendered because he failed to appear at the trial, despite having knowledge that it was fixed especially for hearing on 6 April 2016. I upheld the objection.
11 Sandra was called to give evidence. Her evidence was limited to the acquisition of an additional debt to Centrelink. She has been overpaid by $4,000. She now must repay that sum.
12 Cathryn was called to give evidence. The larger part of her evidence went to correcting aspects of her affidavit. The corrections are not at all controversial, and there is no need to recite those corrections. The relevant evidence she gave is the acquisition of a debt of $1,800 to friends who have loaned her monies.
The application for extension of time
13 Additionally, Cathryn sought leave to have time extended within which to bring her application pursuant to s99 of the Act. This section provides that an application such as this must be made within six months after the date of the grant of probate. The grant of probate was made on 16 January 2017. Cathryn’s Originating Motion was filed on 18 August 2017.
14 Subsection 2 of s99 requires me to consider whether it is appropriate to extend the period within which the application can be made “after hearing such of the parties affected as the Court thinks necessary”. Neither Jannette nor Sandra objected to time being extended. The failure of Brett to appear, however, probably imposes upon me an obligation to consider the facts as if there was objection to the application for extension of time.
15 I propose to grant the application for the following reasons. Firstly, I accept Cathryn’s evidence that she did not know of the date of her mother’s death because she was prevented from having any contact with her mother. Secondly, she discovered that her mother had been buried with her father on 10 August 2017 when she visited her father’s burial plot, discovering that her mother had been interred in the same grave site. Thirdly, it was within a matter of days of making that discovery that she then commenced this proceeding.[8]
[8]JCB 58-59
16 In Ansettv Moss & Ors,[9] the Court of Appeal considered an application for extension of time by the appellant twenty-four years after the death of his father. The particular facts are significantly different from those with which I am dealing here, but what I draw from Buchanan JA’s analysis of the legislation and synthesis of the peculiar facts of that application is that the strength of the application is a potent factor in determining whether leave should be granted.
[9][2007] VSCA 161
17 In my view, Cathryn has a very strong case to obtain the relief which she seeks. Additionally, upon her discovering the death of her mother, she acted expeditiously. There is no discernible prejudice created by the granting of leave, and none has been argued by the other parties. I think the fact that Jeanette and Sandra brought their proceeding in time, and rely upon the same facts and legal principles, adds to the strength in Cathryn’s application for leave, because it is not as if Brett has been taken by any level of surprise and has not had the opportunity to meet the application.
The parties’ submissions
18 I was provided with the Court Book the night before the proceeding commenced. I read the Wills, the affidavits and some of the relevant exhibits. I observed that there has been serious and longstanding disharmony within the family network, which is unfortunate. I think this led to their being a gulf between the parties which, if Brett had cooperated as he should have, would have seen this proceeding resolve without the necessity for the intervention of the Court.
19 I observed during the running of the trial that the real issue was not whether there had been a breach of Morie’s moral duty owed to the parties, but the question of need. In saying that, I have not disregarded the relevant history of the relationship between the parties and Morie, nor the relevant history as between the parties themselves. However, the very sensible manner in which the proceeding was conducted involved less of the history and more of the evidence going to need, which is the approach I propose to take.
20 Counsel for Cathryn made his submissions first. He submitted that the Will does not provide for her proper maintenance and support because the trusts set up in the Will restrict the use of monies which she needs for the purpose of meeting basic daily expenses. Counsel for Jeanette and Sandra made the same submissions.
21 The upshot of the submission of Counsel for Cathryn was that she should be entitled to twenty-five per cent of the net value of the estate. Counsel for Jeanette and Sandra submitted that they should be entitled to twenty per cent each of the net value of the estate.
22 I could not fault the analysis made by Counsel because it was consistent with my own preliminary view and confirmed after hearing their submissions and reading their very helpful outlines of argument.
The substance of the applications
Jeanette and Sandra
23 Jeanette is in a parlous financial situation. She and her husband survive on a combined monthly pension of $2,796 supplemented by her husband’s income as a handyman of $191 per month, and Jeanette’s income of $369 earned through taking guests into their home and doing cleaning work. Their total assets are $437,797 with liabilities of $406,512.
24 Additionally, Jeanette has an Acquired Brain Injury due to a stroke she suffered in 2012. She has persisting psychiatric problems and other health issues. Her husband also suffered an Acquired Brain Injury as a result of a cycling accident.
25 Both Jeanette and her husband are reliant upon financial subsidies provided by a daughter which enables them to maintain some semblance of financial stability despite their asset and liability situation.
Sandra
26 Sandra is also in a parlous financial situation. She works as a casual bus driver earning $1,598 gross per month with some additional supplementary income which is modest. Her husband works as a bus driver, earning $4,500 gross per month during school terms. They have combined assets of $347,000 with liabilities of $195,167. They do not have any other substantial financial resources.
Cathryn
27 Cathryn is also in a parlous financial situation. She has no assets. Her husband is in receipt of a disability support pension of $650 per fortnight. She receives a carer’s pension of $670 per fortnight. They both have significant lower back injuries which impair their capacity to work. Cathryn has other health issues which would likewise significantly impair her capacity for work in addition to the problems she encounters with her back injury. They live in rented accommodation, and it would appear that what income they receive is absorbed by the need to pay rent and their modest day-to-day living expenses.
Disposition
28 The affidavits relied upon by the parties are very elaborate in recounting a great deal of historical material relevant to the dynamic of the family, which to a great extent is not so relevant because I consider that I must look at the factors referred to in s91A(2) of the Act.
29 Counsel for the parties undertook a reasonably elaborate analysis of the evidence looking through the prism of those factors. I do not intend to do that to the same extent because I think it is unnecessary.
30 The evidence contained in the affidavits of the parties demonstrate to me the following:
· The applicants are the daughters of Morie. I accept that they had a reasonable relationship with her until acrimony amongst the siblings interfered with the continuation of that reasonable relationship. I accept that the breakdown occurred late in Morie’s life and, to some extent, was orchestrated by Brett. That certainly appears to be so in the breakdown of the relationship between Morie and Cathryn.
· In general terms, the applicants were keen to maintain a relationship with Morie of a productive kind. Overall, it is difficult to see how any of the applicants could be criticised about the nature and extent of their relationship with Morie, which would diminish the moral duty owed by Morie to them.
· The applicants are in a parlous financial state. Whilst they are not in the twilight of their lives, they are in advanced years where their capacity to work and acquire resources and assets is very much out of their reach. It is true that some are better off than others, but looking at their circumstances objectively, they are asset poor and are debt ridden at a time in life when reducing debt and being able to cover the contingencies of later life are an imperative.
· I have dealt with their relationship with Morie adequately so far.
· There are no other beneficiaries who are affected by what I consider to be a proper disposition of the applications.
31 I cannot cavil with the submission made by Counsel for Cathryn that twenty-five per cent of the net estate is provision for her proper maintenance and support given the size of the estate. Nor can I cavil with the submission made by Counsel for Jeanette and Sandra that twenty per cent of the net estate is provision for their proper maintenance and support given the size of the estate.
32 What that amounts to is that sixty-five per cent of the net estate must be paid to the applicants, with the residuary to be paid to Brett, after costs and disbursements are paid, which will be incurred in order to comply with the orders I propose to make.
What remains?
33 Brett has abandoned his responsibility to the beneficiaries of Morie’s estate, and to the Court, to ensure that the inventory of assets and liabilities is accurate, and, most importantly, to surrender the Probate parchment to the Court.
34 Brett has evinced an intention to ignore his responsibilities which has left me in serious doubt that he will execute the orders which I propose to make.
35 Therefore, I propose to have the applicants draft orders for my consideration, essentially capturing the following:
· One of the applicants will be appointed to act as if a mortgagee in possession of the real property.
· Brett must vacate the real property within thirty (30) days of the date upon which I sign the final orders.
· One of the firms of solicitors acting for the applicants will be appointed to conduct the winding up of the estate.
· A firm of real estate agents must be appointed to conduct the sale of the real estate by an appropriate means.
· The proceeds of sale must be deposited into the trust account of the appointed solicitors, together with the cash assets.
· After payment of real estate agent’s costs and the legal costs of sale, and the legal cost of this proceeding, the net is to be distributed in accordance with the conclusions I have referred to above.
· The legal costs of the applicants is to be paid on an indemnity basis and to be paid out of the estate.
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