McLeod v Napthali

[2021] NSWSC 1621

Supreme Court

New South Wales

Medium Neutral Citation:

McLeod v Napthali [2021] NSWSC 1621

Hearing dates:

9 December 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

1.   ORDER that in addition to the provision made for him in the will of the deceased, the first plaintiff receive a legacy of $25,000.

2.   ORDER that in addition to the provision made for him in the will of the deceased, the second plaintiff receive a legacy of $60,000.

3.   ORDER that the plaintiffs’ costs of the proceedings be paid out of the estate of the deceased assessed on the ordinary basis.

4.   ORDER that the defendant’s costs of the proceedings be paid out of the estate of the deceased assessed on indemnity basis.

5.   ORDER that the burden of orders 1-4 of these orders (inclusive) be borne by all beneficiaries named in the will of the deceased other than the plaintiffs.

6.   ORDER that the exhibits and documents produced on subpoena may be returned.

7.   ORDER that these orders be entered forthwith.

Catchwords:

SUCCESSION — Family provision — Claim by adult sons for further provision — Estrangement explained — Relief granted

Legislation Cited:

Succession Act 2006 NSW

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

First Plaintiff: Peter Laurence McLeod
Second Plaintiff: David Wayne McLeod
Defendant: Lise Anne Napthali

Representation:

Counsel:
Plaintiffs: Ms M Pringle
Defendant: Mr RN O’Neill

Solicitors:
Plaintiffs: Richard Morris of Moin Morris and Schaefer Solicitors
Defendant: Ms M Prakash of Prakash Lawyers

File Number(s):

2020/340052

Publication restriction:

Nil

Judgment

HIS HONOUR:

1. David Charles McLeod (“the deceased”) died on 13 December 2019, aged 84 years, leaving a will dated 30 August 2006, probate of which was granted to the defendant on 1 December 2020, and (subject to allocation of the costs of these proceedings) an estate presently valued at about $830,000.

2. No part of the estate has yet been distributed.

3. If all the costs of the proceedings are paid out of the estate on the usual bases (the ordinary basis for the plaintiffs’ costs and the indemnity basis for the defendant’s costs), the distributable estate is of the order of $680,000 or thereabouts.

4. The deceased was married only once, in November 1955, to Barbara Ann McLeod, who died in June 2017.

5. The two eldest children have applied for a family provision order under Chapter 3 of the Succession Act 2006 NSW.

6. There were five children of the deceased’s marriage (four sons and a daughter), namely:

(a)   David (the second plaintiff), born in January 1957 and now aged 64 years;

(b)   Peter (the first plaintiff), born in September 1958 and now aged 63 years;

(c)   Ian, born in October 1959 and now aged 62 years;

(d)   Mark, born in June 1963 and now aged 58 years; and

(e)   Lise (the defendant), born in October 1970 and now aged 51 years.

7. Each of the deceased’s sons has experienced a disrupted family life in adulthood; but special mention needs to be made about the experience of the second plaintiff because the deceased’s perception of it impacted on the terms of his will.

8. The second plaintiff has been twice married, or at least in two established relationships. By his first wife, he had three children, all now adults.

9. Whatever the rights or wrongs of the breakdown of the marriage between the second plaintiff and his first wife, she and the couple’s children remain scarred by the severance of relationships.

10. In the wake of the marriage breakdown, the second plaintiff’s former wife purchased a residence near the family home of his parents, and the children of the marriage came to regard the deceased as a father figure in substitution for the second plaintiff.

11. The deceased, if not also his wife, embraced the former wife and the children to the exclusion of the second plaintiff. The former wife became as a daughter to the deceased. The defendant joined in support of her former sister in law.

12. The second plaintiff’s former wife and children deeply believe that they were abandoned by him after he had had an extramarital affair, which he denies. Their resentment runs deep. They give no credence to the story he has to tell. Therein lies a tragedy, firmly founded upon disbelief and a lack of forgiveness.

13. When he came to make his will, the deceased divided his estate into five shares. But for the second plaintiff, each of his children was allocated a one fifth (20%) share. The remaining one fifth share (notionally attributable by the deceased to the second plaintiff’s branch of the family) was divided between the second plaintiff (with a one-fifteenth share of the whole estate), the former wife (also with a one-fifteenth share) and their three children (with a one fifteenth share divided between them equally).

14. Shortly before his death, the deceased, in a conversation with the defendant, affirmed the scheme of his will, drafted years before with the professional services of a solicitor.

15. In that conversation the deceased rationalised his separate treatment of the second plaintiff on the ground of a failure on the part of the second plaintiff to care for his former wife and children.

16. None of the beneficiaries named in the deceased’s will is wealthy, but each of the plaintiffs is destitute, living on a disability pension and in, or on the cusp of, a state of homelessness.

17. Neither plaintiff has been left without testamentary provision. Upon an assumption that the usual cost orders are made in disposition of the proceedings, the first plaintiff stands to receive a legacy of about $136,000, and the second plaintiff stands to receive a legacy of about $45,000.

18. The first plaintiff invites the Court to order that his legacy be supplemented by another $25,000. The second plaintiff seeks an additional $110,000.

19. Before turning attention to the statutory criteria to be met by the plaintiffs, it is necessary to say something of the years of estrangement that marred relationships between the plaintiffs (on the one hand) and the deceased (on the other).

20. It is common ground between the plaintiffs and the defendant that the deceased (to quote the defendant), “was strict with the upbringing of his children”.

21. What divides the family to this day is that the plaintiffs both say that they (and their mother) suffered physical violence at the hands of the deceased, to such an extent that they were forced to leave the family home in 1972, when respectively aged 14 or 15 years, taking up residence with grandparents.

22. The plaintiffs’ nearest sibling, Ian, acknowledges that all the children (as he views their life experience) were disciplined by the deceased with a strap, but he does not accept that there was ever any greater violence than that, accepting, at least in his own case, that any discipline he attracted was merited.

23. The next in line after Ian, Mark, declined to participate in the proceedings, so there is no firsthand account of his experience.

24. The baby of the family, the deceased’s only daughter, the defendant, neither experienced, nor witnessed, violence of the order described by the plaintiffs.

25. It is not altogether surprising that her perception of her father is very different from that of the plaintiffs. She is more than a decade younger than them and, even now, she is a gentle-spirited woman who, no doubt, was much loved by her father.

26. I accept the essential correctness of the evidence of the plaintiffs that they were subjected to physical violence by the deceased during their formative years, and that the violence they suffered profoundly affected their ability to live a normal, healthy life.

27. Corroboration of their evidence can be found, for example, in evidence of the first plaintiff’s former wife of complaints he made during their marriage about the deceased’s harsh treatment of the second plaintiff and himself.

28. It is not necessary to speak ill of the deceased in order to accept the plaintiffs’ evidence of his ill treatment of them in their early days.

29. Although the evidence placed before the Court did not delve into his background, the snippets of his life story we have include the fact that he had war service and that, during the formative years of the lives of the plaintiffs, he at times drank and gambled to excess.

30. Where, if at all, his love of guns fits into a pattern with this is difficult to say; but I accept the evidence of the plaintiffs that he threatened them with a rifle when ordering them to leave the family home.

31. It is entirely conceivable that the plaintiffs, as the eldest of the children, bore the brunt of a maladjusted life then lived by the deceased in the wake of war experience, although it is not necessary to speculate about this.

32. The defendant’s evidence includes an acknowledgment that the deceased “had arguments with David and Peter on numerous occasions while they were living with Dad and Mum”.

33. At some point the deceased turned to theology, studied at Moore Theological College in Sydney, became a hospital chaplain and (as the defendant describes him), served as “a minister of the church”.

34. I accept without reservation that (as one of his grandchildren deposed in evidence) the deceased was a “respected man in the community”.

35. His “old style” view of marriage (as described by the second plaintiff’s former wife) was that “marriage was for better or worse”. In the case of the second plaintiff at least, this view of the world appears to have contributed to estrangement of the second plaintiff from his father.

36. An underlying tragedy in this family is that, despite estrangement, there was a deep yearning, certainly on the part of the plaintiffs, to be part of a happy family.

37. The plaintiffs came under criticism in these proceedings because they did not attend the funeral of their mother, a person for whom they expressed unqualified affection. The fact is that, much to their distress, they were not informed of her death until well after the event. This I take to be a measure of the deceased’s mindset, not theirs.

38. At his funeral, the priest who conducted the service told the second plaintiff and his daughter that the deceased’s “final confession focused on the regret he had about his treatment” of his children.

39. The fact that the deceased made some provision for each of his five children (and for the second plaintiff’s former wife) demonstrates an awareness on his part that he owed all of them a moral duty to make at least some provision.

40. Nevertheless, he seems to have died without full insight in to his treatment of the plaintiffs in their formative years, his responsibility (in part) for their struggles in after years and their necessitous circumstances.

41. With these observations, I turn to the statutory prerequisites for the making of a family provision order:

(a) Each of the plaintiffs is a child of the deceased and, so, a person eligible to apply for a family provision order: Succession Act 2006, ss 57(1)(c) and 59(1)(a).

(b) The summons by which they have each applied for a family provision order was filed on 1 December 2020, within the time limited by s 58 of the Succession Act.

(c) Given their destitution and reliance upon a disability pension for survival, and despite the testamentary provision made for them respectively by the deceased, each plaintiff has been left without proper provision for his proper maintenance, education and advancement in life: Succession Act, s 59(1)(c).

42. Although the provision made by the deceased for the plaintiffs in his will was “not nothing”, it was insufficient to address their current, and prospective, personal needs, particularly given (as I view the evidence) his contribution to their life struggles. It is for this reason that I am satisfied that the plaintiffs have each satisfied the jurisdictional threshold stipulated by s 59(1)(c).

43. A larger difficulty is to decide what, if any, further provision “ought” to be made for the plaintiffs respectively upon an exercise of the jurisdiction for which s 59(2) of the Succession Act provides.

44. Each of the plaintiffs have material needs which, if they could be satisfied, would absorb the larger part of the deceased’s distributable estate.

45. The barrier to any grant of relief on that scale is twofold. First, none of the deceased’s beneficiaries is wealthy or without need. Secondly, respect must be shown for the deceased’s considered scheme of distribution of his estate, confirmed shortly before his death.

46. In my opinion, a correct disposition of these proceedings is that:

(a)   The first plaintiff should receive from the estate of the deceased further provision in the sum of $25,000, as he asks;

(b)   The second plaintiff should receive from the estate further provision in the sum of $60,000;

(c)   The usual costs orders should be made;

(d)   The burden of further provision made for the plaintiffs and the orders for the costs of the proceedings should be borne by all beneficiaries other than the plaintiffs rateably.

47. Accordingly, I make the following orders:

1. ORDER that in addition to the provision made for him in the will of the deceased, the first plaintiff receive a legacy of $25,000.

2. ORDER that in addition to the provision made for him in the will of the deceased, the second plaintiff receive a legacy of $60,000.

3. ORDER that the plaintiffs’ costs of the proceedings be paid out of the estate of the deceased assessed on the ordinary basis.

4. ORDER that the defendant’s costs of the proceedings be paid out of the estate of the deceased assessed on indemnity basis.

5. ORDER that the burden of orders 1-4 of these orders (inclusive) be borne by all beneficiaries named in the will of the deceased other than the plaintiffs.

6. ORDER that the exhibits and documents produced on subpoena may be returned.

7. ORDER that these orders be entered forthwith.

48. HIS HONOUR: Well, I think we’ve only got one member of the family here, haven’t we? Two we’ve got.

O’NEILL: The two plaintiffs, your Honour. Yes.

HIS HONOUR: What I will say to you I say also to your siblings, and that is I’m not intending any disrespect to your dad. He obviously did the best he could with what he had, and the time has come for all of you in your advancing years, if you can find it within yourselves, to extend to one another a little bit of charity. I sense in this family that there is scope for that. If I thought it was a waste of time, I wouldn’t waste your time. But, anyway, [to counsel] thank you for your assistance.

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Decision last updated: 13 December 2021