McFadden v Bickford
[2012] VCC 512
•2 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01408
IN THE MATTER of Part IV of the Administration and Probate Act 1958
IN THE MATTER of the Estate of SILVER MEARLE LILLIAN MCFADDEN (deceased)
| KEITH CAMPBELL MCFADDEN | Plaintiff |
| v | |
| AVENEL MERNA BICKFORD and FREDERICK HENRY BICKFORD (who are sued as the Executors of the Will of Silver Mearle Lillian McFadden, deceased) | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2012 | |
DATE OF JUDGMENT: | 2 May 2012 | |
CASE MAY BE CITED AS: | McFadden v Bickford & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 512 | |
REASONS FOR JUDGMENT
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SUBJECT: TESTATOR'S FAMILY MAINTENANCE
CATCHWORDS: claim by widower - deceased's second marriage - responsibility owed by the deceased - whether a small legacy and the establishment of a trust adequate provision
LEGISLATION: Administration and Probate Act 1958, s.91
CASES CITED: Mackenzie v Topp [2004] VSC 90 and King v White [1992] 2 VR 417
RULING: provision be made for the maintenance and support of the plaintiff by the provision of a small legacy and the establishment of a trust for the purpose of the balance of the estate being applied to purchase suitable accommodation for the plaintiff, and upon his death the value of the accommodation to form part of the residuary estate of the deceased
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendants | Mr M McKenzie | Nicholas W J Rolfe Pty Ltd |
HIS HONOUR:
Introduction
1 Before the Court is an Originating Motion filed by the plaintiff on 1 April 2011 seeking adequate maintenance and support from the estate of the deceased, Silver Mearle Lillian McFadden.
2 On 18 April 2012 (the day before the commencement of the trial) I conducted an intensive directions hearing to determine what issues the parties intended to litigate, and to give the parties an opportunity to consider settlement of the proceeding.
3 On 18 April 2012 the plaintiff was represented by Mr J Mattin of Counsel who was instructed by Ms D Pugliese, solicitor of Dawes & Vary Pty Ltd, solicitors. On the day of trial I was informed that the plaintiff intended to represent himself. He had entered into an arrangement with Ms Pugliese that she would assist him. I gave Ms Pugliese permission to assist the plaintiff in any way that she could. Mr M McKenzie appeared for the defendants.
4 The following evidence was adduced at the trial:
· The plaintiff gave evidence and was cross-examined.
· Frederick Bickford (the first defendant) gave evidence and was cross-examined.
· Brian Burgess gave evidence and was cross-examined.
· Karen Glasson gave evidence and was cross-examined.
· Kathleen Leak gave evidence and was cross-examined.
· Robert Burgess gave evidence and was cross-examined.
· The plaintiff tendered his two affidavits:
o sworn 15 September 2011: Exhibit A.
o sworn 13 April 2012: Exhibit B.
· The plaintiff tendered a patient history of medication: Exhibit C
· The defendants tendered the following affidavits of:
o Frederick Bickford sworn 13 December 2011: Exhibit 1
o Brian Burgess sworn 17 April 2012: Exhibit 2
o Gavin Burgess sworn 17 April 2012: Exhibit 3
o Peter Burgess sworn 13 April 2012: Exhibit 4
o Karen Glasson sworn 17 April 2012: Exhibit 5
o Kathleen Leak sworn 17 April 2012: Exhibit 6
o Robert Burgess sworn 17 April 2012: Exhibit 7
The Background Facts
5 Keith Campbell McFadden was born on 20 June 1941. He is now 71 years of age. Keith met Silver in 1991. They married on 14 September 1991. At the date of their marriage Keith was 50 years of age, and Silver was 59 years of age. It was the third marriage for Keith, and the second marriage for Silver. Silver died on 28 October 2009.
6 Silver and her first husband, Brian Burgess, purchased a property at Hare Street, Echuca in 1973. They were registered as joint proprietors of the property on 4 April 1973. Silver and Brian divorced in 1989. The property was transferred to Silver. She became the sole registered proprietor of the property on 2 November 1989.
7 Silver made a will dated 15 January 1993. She left Hare Street and residue of her estate to three of her children and two of her grandchildren. She made no provision for Keith. The defendants obtained probate of Silver’s will on 25 November 2010.
8 Before the marriage Keith had been employed as a journalist for about 27 years. He owned a property at Numurkah; a coaster bus; a Nissan vanette; and two caravans. He sold the property at Numurkah and purchased a property at North Street, Echuca. Following the marriage he sold the property at North Street for $16,000. He gave Silver $8000. He said Silver applied the monies to the purchase of a car. During cross examination it transpired that Silver had loaned Keith $5000. Part of the $8000 was in repayment of that loan. Otherwise, Keith said that the balance of the monies obtained from North Street were contributed to the cost of living and expenses incurred during their marriage.
9 In 2000 Keith retired. His source of income was then limited to an aged pension. The impression I obtained from reading the affidavits and from the oral evidence of the witnesses is that Keith and Silver were both retired by about 2000. Their income was derived from pensions.
10 Silver’s health deteriorated in the early 2000s. She suffered from a serious lower back condition. Keith said that he was largely responsible for her care. He undertook her personal care and the necessary undertaking of domestic tasks at Hare Street.
11 In 2005 the Public Advocate initiated an application at the Victorian Civil and Administrative Tribunal ("VCAT"). It was appointed the guardian for Silver. FTL Judge & Papaleo Pty Ltd was appointed the administrator of Silver's estate. In October 2005 Silver was removed from Hare Street pursuant to an order obtained by the Public Advocate. She was placed in the Murrayvale Aged Care facility in Moama. She resided there until the date of her death. Keith resisted the orders made at VCAT, and the removal of Silver from Hare Street.
12 Keith's evidence was that he was a loving, caring husband to Silver throughout their marriage and life together at Hare Street, and that his devotion to her continued following her admission to the Murrayvale Aged Care facility. However, that was not the impression I obtained from the witnesses called by the defendants.
13 I gave Keith instructions regarding the procedure usually adopted in the conduct of a proceeding commenced by an Originating Motion supported by affidavit evidence. I advised him that he was required for cross examination, and that he could cross examine any of the persons who had sworn affidavits in support of the defendants’ case. I permitted Ms Pugliese to assist Keith in the conduct of his case, and for the purpose of assisting him in formulating questions which he wanted to put in cross examination to Frederick Bickford, Brian Burgess, Karen Glasson, Kathleen Leak and Robert Burgess.
14 Each of those witnesses cast doubt on Keith's commitment to Silver. Frederick Bickford referred to the plaintiff having a number of affairs with other women during his marriage to Silver. He referred to a particular incident when Keith purchased two tickets to a function at the bowling club. He did not take Silver. He took another woman. Silver found out and went to the bowling club. He said that Keith lied to Silver telling her that he was doing over time that night apparently to cover for his absence from Hare Street. He also referred to Keith having a girlfriend in Echuca.
15 Brian Burgess provided Keith with a letter supporting his resistance to the steps taken by the Public Advocate. He referred to Keith having done "a great job looking after"[1] Silver over the years. However, he recanted writing a second letter in which he described Keith as "not a loving husband he makes out to be." [2] He made a number of this serious criticisms of Keith's conduct. He said that the reason why he wrote the second letter was because things had changed in between writing the first letter and the second letter. I infer that what he meant was that his knowledge of the plaintiff's conduct in connection with Silver had changed leading him to conclude that he was not such a loving husband to Silver.
[1]Exhibit "KCM3" to the affidavit of Keith sworn 15 September 2011: Exhibit A
[2]Exhibit "FM2" to the affidavit of Frederick Bickford sworn 13 December 2011: Exhibit 1
16 Ms Leak said that in conversations with Silver she was told that Keith had several girlfriends during the marriage.[3] Brian Burgess said that there had been a number of separations during the marriage and Keith had relationships with other women.[4] Karen Glasson noted that on the occasions she visited Silver that Hare Street was cluttered; there were often dirty dishes in the sink; food in the fridge was mouldy and not fresh; Silver was not being fed well; Silver’s medication was not being managed; the house was not clean; and the defendant often left Silver alone for the whole day. After Silver was admitted to the Murrayvale Aged Care facility she did not see Keith there.[5]
[3]Exhibit 6
[4]Exhibit 2
[5]Exhibit 5
17 The plaintiff cross-examined each of these witnesses. He challenged the allegations made by each of the witnesses which I have summarised in the preceding paragraph. Despite Ms Pugliese’s assistance Keith did not succeed in successfully challenging their evidence, but rather his manner of cross-examination invited the witnesses to restate their allegations, and they did so by expanding upon the extent of his infidelity and lack of commitment to Silver.
18 Keith is in a parlous state of health. He suffers from a serious diabetic condition which has resulted in a serious peripheral vascular disease. The extent of the disease has resulted in an above knee amputation of his left leg. He takes an extraordinarily large amount of medication. He produced an extract of the medication which he currently takes which discloses that he takes seven different types of medication each day. He said that all of the medication is relevant to his treatment for diabetes and peripheral vascular disease.
19 Keith is presently residing at Unit 1, 301 Ogilvie Avenue, Echuca. He has no assets of any value. He has $700 in a bank account. He is otherwise reliant upon government benefits. He receives a pension of $422.85 per week. In June 2011 he was provided with a community care package of $12,000. It is unclear whether that is an amount which you can draw upon or whether it was provided to him in cash. However, it covers his transport to and from Bendigo where he receives medical treatment for his diabetic condition and ongoing treatment relevant to the amputation and the fitting of a prosthesis.
The Issues
20 Keith submitted that he would have been content with a life interest in Hare Street and the proceeds of sale had the defendants not resisted his claim that Silver owed him a responsibility and that it was a breach of her moral duty to him to make no provision for his maintenance and support in her will. He submitted that I order the sale of Hare Street, and order that the net proceeds of sale be paid to him.
21 Mr McKenzie informed me that the net value of Hare Street, after payment of expenses for which the estate is liable and legal costs of this proceeding, amounts to about $120,000. Ms Pugliese agreed.
22 Hare Street is in a very poor state. Mr Bickford exhibited a large number of photographs to his affidavit which demonstrate car bodies in the front garden. The front garden, side garden and rear garden are seriously overgrown. The outside of the house is deteriorating badly - the eaves are falling away, and the paintwork on the outside of the house has deteriorated to the extent that the timber boards are exposed. The inside the house is a chaotic mess. It is cluttered to the extent that rooms and hallways have been rendered impassable.[6] Furthermore, Mr Bickford exhibited correspondence from the Shire of Campaspe requiring Keith to undertake work on the property to make good the serious deterioration apparent in the photographs. No work was undertaken by Keith of any kind.
[6]Exhibit "FM3" to the affidavit of Frederick Bickford sworn 13 December 2011: Exhibit 1
23 Apart from the requirement that the property be sold the issues are, firstly, whether the net proceeds of sale should be paid to Keith. Secondly, whether he has demonstrated any need given that he is now in alternative accommodation. Thirdly, if further provision should be made whether it should be limited to the application of the net proceeds to alternative accommodation with a life interest, and that upon his death the net proceeds form the residuary estate of Silver.
Responsibility and Adequate Provision
24 I am in no doubt that Silver owed Keith a responsibility to adequately provide for his maintenance and support. The discharge of that responsibility, in the context of a subsequent marriage by both of them, puts Keith’s moral claim as superior to those of others, such as Silver’s children. It is trite law that the discharge of that responsibility is to put a roof over Keith’s head and provided him with a nest egg to permit him to face the unforeseeable vicissitudes which lie ahead.
25 Mr McKenzie submitted that the position of the defendants is that the net proceeds of sale can be used for Keith's benefit to put a suitable roof over his head in so far as $120,000 might achieve that end. It is consistent with the stated desire of Keith, and the statements made by Silver to him that he could remain living in Hare Street for the balance of his life subsequent to her death. It should, on Keith’s death, form the residuary estate of Silver and then be distributed accordingly to the beneficiaries under her will.
26 The submission made by Mr McKenzie is consistent with the submissions made by Keith. However, it occurred to me that where there was a disparity in the submissions it was that Keith has no financial resources save for government benefits. He has no nest egg.
27 Mr McKenzie submitted that there are competing moral claims by Peter Anthony Burgess;[7] Karen Glasson,[8] and Robert Burgess.[9] I do not propose to descend into an analysis of the particular income, assets and liabilities of each of them save to say that their financial situations speak of modesty. He also submitted that it was relevant that Brian Burgess and Silver had agreed that Silver would leave the property to their children.[10]
[7]Exhibit 4
[8]Exhibit 5
[9]Exhibit 7
[10]Exhibit "FM2" to the affidavit of Frederick Bickford sworn 13 December 2011: Exhibit 1
28 Whilst the competing moral claims are relevant, as is an expression of testamentary intention, I do not accept that they are so compelling that they override the moral duty owed by Silver to Keith. I think they are relevant to a degree to which I will refer later in these reasons.
29 I have some doubt that Keith was the loving, caring and devoted husband which he contended he was. It is clear to me that Frederick Bickford, Brian Burgess, Karen Glasson, Kathleen Leak and Robert Burgess hold Keith in low regard. I was concerned to determine the basis for them holding that opinion of him, and whether it was gratuitous or reasonably based. There are two features of their evidence which seem to be consistent. Firstly, Frederick Bickford and Kathleen Leak knew something of the general reputation of Keith as an unlikeable man. Secondly, they, Karen Glasson and Robert Burgess did not believe that Keith undertook maintenance and repair of the property and cared for Silver as they believed he should have and as he could have. I accept their evidence. In the end I thought they gave their evidence in a reasonable manner.
30 Neither Mr McKenzie nor Keith addressed me on the relevant matters raised by section 91(4)(e)-(p), but Mr McKenzie did so through written submissions essentially touching on matters which were relevant for me to consider, and Keith could be forgiven for not raising those matters because he was unaided by legal representation.
31 I intend to deal with each of those matters in a broader manner given the concession made by Mr McKenzie that a responsibility was owed, and that there is a basis upon which adequate maintenance and support can be provided for Keith.
32 Keith and Silver were husband and wife in a marriage of some 19 or so years. Silver owed an undoubted responsibility to Keith, but also a responsibility to those of her children who have a competing moral claim. The size of the estate is modest amounting to $120,000 net. It comprises the property which is in a condition which is probably uninhabitable, and by agreement, must be sold. Keith is 71 years of age. He is in poor health, and indeed, appeared to me to be older than his chronological years. Keith’s contribution to Silver’s estate was essentially limited to his care for her over a period of their marriage. The attack upon Keith’s credit has left me in some doubt regarding the actual level of love, care and devotion directed by him to Silver. Keith’s needs are obvious.
Conclusion
33 Despite my doubt about Keith's actual level of love, care and devotion to Silver it has not clouded my view that provision must be made for him. It is now a matter of the manner that provision should be manifested.
34 There is a line of authority which stands for the proposition that in such circumstances the further provision for maintenance and support should not be restricted. However, there are a number of factors which compel me to depart from that approach.
35 Firstly, the whole of Silver’s estate was derived from a property settlement after the demise of her first marriage.
36 Secondly, Silver stated an intention to benefit her children upon her death in conversation with Brian Burgess, evidence which I accept. Silver’s children had an expectation of benefiting from her estate.[11]
[11]Mackenzie v Topp [2004] VSC 90
37 Thirdly, there are competing moral claims by at least two of her children whose evidence I accept that they are in modest financial circumstances.
38 Fourthly, Keith’s needs cannot be met by the provision of the whole of the net estate because that there is no likelihood that premises can be purchased for him for $120,000 in Echuca.
39 Fifthly, Keith needs are presently being met by government benefits, although, there is a line of authority that a person to whom a responsibility is owed should be supported and maintained from the bounty of the deceased rather than by the State. It is not so applicable here because it is inevitable that whether Keith is provided the whole of the estate or not, he will nonetheless heavily rely upon government benefits to survive.[12]
[12]King v White [1992] 2 VR 417
40 Sixthly, Keith has no dependents. It does not seem unreasonable to me that if he is able to purchase suitable accommodation, or pay for a nursing home bond, that on his death the value of that accommodation should form the residuary estate of Silver and be distributed according to her will.
41 I think that Keith should be provided with a sum for contingencies. I think that sum should be $20,000. I think the balance of $100,000 should be held in trust for Keith to be applied to the purchase of suitable accommodation, or payment of a nursing home bond. Upon his death the value of that accommodation should form the residuary estate of Silver. I think silver, as a wise and just testatrix, should have made provision of this kind for Keith in her will.
42 The issue raised by Mr McKenzie is whether the trustee should be the defendants. I think the trustee should be someone independent who can apply the balance of $100,000 in the manner I have outlined. However, Frederick Bickford struck me as a decent and honourable man who was provoked into giving evidence adverse to Keith because Keith invited him to explain why he said certain things in his affidavit going to Keith’s credit.
43 I will hear Keith and Mr McKenzie on the form of the amendment to Silver's will to reflect the conclusions I have reached. In the meantime, the orders must cover the following:
· An order for sale of the property.
· The appointment of a selling agent, which must be undertaken by the defendants.
· The appointment of a solicitor to undertake the conveyancing. I think that should be the solicitor for the defendants.
· The deduction from the gross selling price of - expenses incurred by the estate; the legal expenses of this proceeding; selling and legal costs; and sundry expenses. I expect all of these expenses to be identified in a schedule form.
· The payment from the net of the sum of $20,000 to Keith.
· The establishment of a trust for the balance. The trust must contain the following components - an amendment to Silver’s will establishing the trust; the deposit of the balance into a commercial banking account to be operated the by named defendants; the provision of quarterly accounts to Keith of the conduct of the commercial banking account; the payment of any interest earned to Keith; and the application of the balance to the purchase of suitable accommodation or a nursing home bond. The orders will need to contain a clause permitting Keith to reapply to the court if there is any issue as to the application of the balance, in particular if there is any dispute as to what suitable accommodation amounts to.
· Any other matters which are necessary to give effect to the conclusions I have reached.
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