Mayer v Whittingham

[2001] NSWSC 985

CITATION:	Mayer v Whittingham [2001] NSWSC 985
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4509/99
HEARING DATE(S):	31/10/01
JUDGMENT DATE:	7 November 2001
PARTIES :	Yvonne Maria Mayer v Ken Whittingham - Estate of Trevor Shade
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr A. Enright for plaintiff Mr J. Wilson for defendant
SOLICITORS:	Harris Hyde Page for plaintiff Deacons Lawyers for defendant
CATCHWORDS:	Family Provision. Application by a daughter who was given half of deceased's estate. Discussion of obligation of a parent to a child and the need for evidence to quantify claim for provision. - Application dismissed.
DECISION:	Paragraph 25

- 1 -

This is an application under the Family Provision Act in respect of the estate of the late Trevor Shade who died 21 May 1999 aged 79 years. The deceased was survived by his daughter, Yvonne Mayer, who is the plaintiff in these proceedings. The deceased made his will on 15 December 1998 and probate was granted to the defendant in July 1999. That will gave certain items of personalty in clause 4 to Warwick Purcell a friend of the deceased. Clause 5 then provided:-

“I direct my trustee to divide my estate as follows:-
“(1) To my daughter, Yvonne Mayer 50 % of my estate.
(2) To my friend, Warwick Jack Purcell 20% of my estate.
(3) To the Vietnam Veterans Association of Australia New South Wales Incorporated being Registered Charity No. CC 24654 5% of my estate. The receipt of the charity’s secretary or treasurer is a sufficient discharge to my Trustee for payment.
(4) To St Catherine’s Aged Care Services of Balaclava Road Eastwood the rest and residue of my estate. The receipt of the charity’s secretary or treasurer is a sufficient discharge to my Trustee for payment.”

2   By the time of his death the deceased’s house had been sold and his estate reduced to cash. At the date of hearing the estate assets total $517,000. There have been costs incurred on the plaintiff’s part amounting to $42,000 and on the defendant’s part amounting to $51,750.

3   I will deal with some of the family history in order to give context to the matter. The deceased was born on 24 September 1919 and he married on 24 December 1938. The plaintiff, the couple’s only child was born on 3 June 1940. In 1942 the deceased and the plaintiff’s mother separated. The mother and the plaintiff moved to Mitchell’s Flat and stayed with the mother’s parents. After separating the deceased joined the army and served in the army throughout the war. It was not until May 1949, after the war, that the plaintiff saw her father again. On that occasion he met her and stayed with her grandparents at Mitchell’s Flat for a few weeks. In 1951 the plaintiff again met her father when his ship docked at Newcastle. By then he was actively engaged in matters that took him away. At this stage the plaintiff had moved to Charlestown in Newcastle where she was living with her mother. In 1953 the deceased married his second wife, Freida Shade. They lived at Leichhardt and there were no children of that marriage. In 1954 the plaintiff left school and over the subsequent years travelled around Australia, completed some further education and stayed in Newcastle. In 1966 she moved to Sydney where she was employed as a sales person at Yates Seed & Co.

4   In 1969 the plaintiff was living with Karl Mayer and the plaintiff’s first child, Karleena was born 28 November 1970. Her second child Sabina, was born on 18 March 1972. The relationship did not last and she separated from Karl Mayer in 1973. Thereafter she lived in Housing Commission accommodation in Newcastle and subsequently in Sydney. In 1991 she moved into a Housing Commission house at Waterloo with her children. In 1994 she suffered a mental breakdown and by 1995 she was receipt of a disability pension as result of these problems. During the whole of the period from about 1951 onwards the plaintiff was in regular contact with the deceased and had a good relationship with him.

5   In December 1995 the deceased suffered two strokes and this led to some personality disorder when he was admitted to Ryde Hospital. The personality disorder which he seemed to suffer from led him in 1996 to reject the plaintiff and he refused to see her. The deceased was admitted to Balmain Hospital in September 1996 and at this time he started to see his daughter’s children Karleena and Sabina. In October 1996 he made a will in which he divided his estate between the plaintiff and her daughters. He also gave a Power of Atorney to Karleena, his granddaughter. He was discharged from hospital in October 1966 and stayed with his granddaughter Sabina at the house in Waterloo. He was again admitted to Rozelle Hospital later in October and was discharged in December. He ultimately died in 1999.

6   In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it 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."

7   I turn to the plaintiff’s situation. She is single with no dependents. She has virtually no assets. She has a bank account of $1,200, a car which has been written off worth with an insurance claim of about $2,000. She has furniture and whitegoods which are somewhat old. She has shares in NRMA worth about $1,400. For many years she has lived on the disability pension which is $412.50 per week. When she swore her affidavit in December 1999 her income from that pension was $180 per week from which she paid $37 rent per week. Her total outgoings at that stage she estimated at $152 per week. Since 1995 the plaintiff has received a disability pension which was granted as she was diagnosed as having post-traumatic stress disorder due to many traumas she said had occurred during her life. She suffers from sleep apnea, arthritis, depression and obesity due to compulsive eating.

8   I have already mentioned that the plaintiff had reasonable contact with the deceased after about 1951 which continued up until 1996. It seems to me there is no evidence to suggest that any break in the relationship was other than as a result of the troubles from which the deceased suffered at that stage. Of note, however, is the fact that the plaintiff, apart from one or two short periods totalling in all about six months, never lived in the deceased’s household. In this regard they lived separate lives and it will be recalled at separation in 1942 the plaintiff moved with her mother to her mother’s parents house and grew up with them.

9   It is necessary to also consider the position of others having a claim on the bounty of the deceased. In the present case there is one person and one organisation which falls into this category. The one person is Mr Purcell who takes 20% of the estate. He was the great nephew of the deceased and he knew him from 1952 when he first met him as a toddler. The deceased’s second wife was Mr Purcell’s godmother. It seems that Mr Purcell had a somewhat closer association with the deceased from about December 1995 onwards when he became sick and in the following years when the deceased cut himself off from his daughter. It is clear that Mr Purcell often visited the deceased and assisted him on occasions when he needed help. Mr Purchell is a cellarman, he has a house in Windsor worth some $215,000 with a mortgage to the Colonial State Bank for about $100,000.

10   There is no evidence of any association between the deceased and St Catherine’s Aged Care Services but the deceased was assisted by officers of the Vietnam Veterans Association when he first applied for a disability pension.

11   It is necessary to see how the plaintiff puts her case for provision. She is only entitled to further provision if she has been left without adequate and proper provision for her maintenance, education and advancement in life.

12   The provision made would in the ordinary course without this litigation have provided her with a sum of about $260,000. She initially put her claim on the basis that the effect of her being left her share in the deceased’s estate would be mean that there would be a substantial increase in her rent and that she would lose a number of concessions which he has as a result of her disability pension. This claim was abandoned at the commencement of the hearing and instead two alternative claims were put forward. The first one was a claim to receive a total sum of $400,000. That was put as to $330,000 to purchase a two-bedroom unit at Waterloo which she could have as her own, costs of $10,000 for provision for new furniture, whitegoods and an emergency sum of $60,000. The alternative basis was predicated upon her staying in her existing housing commission accommodation suggesting that she needed a sum for a motor car and whitegoods of $50,000, an emergency sum of $50,000, an income top-up of between $174,160 and $217,700 and some dental work of $4,000. These totals were between $278,160 and $322,080. The income top-up required was said to vary between $200 per week and $250 per week.

13   The defendants’ opposed the plaintiff’s application. In their submissions they emphasised that the plaintiff has secure housing, a pension income and with the benefit of the legacy substantial cash resources which would allow her to spend money on necessary items and still have sufficient funds to make her life comfortable. In particular the defendant raised on the first alternative basis put forward by the plaintiff, the question of whether it was appropriate that the court should provide a daughter with an unencumbered home. In Shearer v The Public Trustee 23 March 1998 Mr Justice Young had this to say:-

"The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own. "

14   In this case this is particularly apposite as the plaintiff herself has never been a member of the household of the deceased except for a very short period. She has never been dependent upon him except for a very short period. The lack of contact between the plaintiff and the deceased between 1942 and 1949 was not the plaintiff’s fault. It was simply the circumstances of her parents’ separation which meant that she did not see her father in that period and continued to live apart from him thereafter. However, the fact that there was no contact for a period must be taken into account in determining the extent of the duty to provide for a child by a testator. In my view, it cannot be said that the deceased, in this case, should have provided an unencumbered home for the plaintiff.

15   In respect of the alternative basis there is simply no evidence of the plaintiff’s needs in respect of income in the future. In this case I am reminded of what Mr Justice Sheller in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:-

"I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant.'"

16   The plaintiff contemplates spending $60,000 on a car and furniture. This may mean that there is no affect on her pension as she is allowed to have up to $228,750 of certain assets without affecting her pension. After $228,750 there is a sliding scale which cuts out at $362,250. Her pension will be affected by any income she receives from her investments. She is allowed $106 per fortnight without affect with a sliding scale up to $1,105.75 per fortnight. Effectively the receipt by her of the bequest under the will is likely to have a small impact on her pension.

17   The evidence I have referred to showed that she was meeting her expenses from the pension. I appreciate that with any person this is a difficult task. However, without any evidence showing what are her income needs there is no basis for top-up payment in her second submission.

18   It seems to me that that the plaintiff has had more than adequate provision under the will. Accordingly, the summons should be dismissed.

19   There are two remaining questions in this matter. One is the proper construction of clause 5 as to where the costs should fall and other is what should happen about the plaintiff’s costs.

20   Under s 33(3) the court is not to make an order for payment of a child’s costs out of the estate by reason only of the fact that she is a child of the deceased.

21   The plaintiff was the main beneficiary in earlier wills prepared by the deceased. In 1882 the deceased left her his home and gave the residue of his estate to the plaintiff and her daughters. In 1989 he gave the plaintiff the whole of his estate. In 1996 after he became paranoid about the plaintiff, he gave her a quarter of his estate. In 1996 he gave his estate to the plaintiff and her daughters equally. The plaintiff thus had good reason to believe that the deceased appreciated her relationship with him and felt a duty towards his daughter at least up until his personality changed. She thus had some basis for believing that the deceased wished to leave her a substantial part of his estate in recognition of their relationship.

22   It also seems that the plaintiff commenced her case in the mistaken belief that the amount she was left in the will would have a substantial impact on her pension and the rent she would have to pay. In the light of these circumstances I would propose to allow the payment of the plaintiff’s costs out of the share of the estate passing to St Catherine’s Aged Care Services.

23   There is also the question of what part of the estate should bear the defendant’s costs. This is because it may be argued that the costs ought to come out of all the bequests in clause 5 rather than the bequest of what was said to be residue in clause 5(4).

24   Given that there is no explanation for the bequest in 5(4) of the will it is appropriate that the costs be paid out of that bequest.

25   I order:-

1. That the summons be dismissed.

2. That the plaintiff’s costs on a party and party basis and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.

3. That the costs ordered to be paid out of the estate be paid out of that part of the estate which passes under the provision of clause 5(4) of the will of the deceased.

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Last Modified: 11/09/2001