McLeod v Radnidge

[2009] NSWSC 1105

CITATION:	McLeod v Radnidge [2009] NSWSC 1105
HEARING DATE(S):	22 April 2009
JUDGMENT DATE :	16 October 2009
JUDGMENT OF:	McLaughlin AsJ
DECISION:	1. I order that the time for the institution of these proceedings be extended up to and including 26 June 2008. 2. I order that the Plaintiff receive from the estate of the late Valerie Joan Veronica McLeod (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 16 January 2010, and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. 3. I order that the costs of the Plaintiff on the party and party basis (such costs not to exceed $45,000) and the costs of the Defendant on the indemnity basis (such costs not to exceed $50,000) be paid out of the estate of the Deceased. 4. The exhibits may be returned.
CATCHWORDS:	SUCCESSION - family provision - very small estate - intestacy -claim by adult foster son - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of persons entitled to share estate upon intestacy - proceedings out of time - factors warranting making of application - inevitable that house property must be sold, if only to meet costs of proceedings.
CASES CITED:	Hunter v Hunter (1987) 8 NSWLR 573 Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES:	Matthew Lockwood McLeod (Plaintiff) Margaret Narelle Radnidge (Defendant)
FILE NUMBER(S):	SC 3448 of 2008
COUNSEL:	Mr R. Wilson (Plaintiff) Mr N. Lyon (Solicitor) (Defendant)
SOLICITORS:	McDonnell Schroder Solicitors (Plaintiff) Neil Lyon (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 16 October 2009

3448 of 2008 MATTHEW LOCKWOOD McLEOD–v- MARGARET NARELLE RADNIDGE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 26 June 2008, Matthew Lockwood McLeod seeks substantively an order for provision for his maintenance out of the estate of the late Valerie Joan Veronica McLeod (to whom I shall refer as “the Deceased”).

3 The Deceased died on 17 September 2006, aged 68 years.

4 The Deceased, who was a widow at the time of her death (her husband John McLeod having predeceased her in 1990), died intestate. She had no children, although (as will appear) the Plaintiff was the foster child of the Deceased and her late husband.

5 The Deceased was one of the four children born to her parents. She was survived by only one of her siblings, her sister Daphne May Killeen. The Deceased’s other two siblings had predeceased her, each of them leaving issue.

6 Pursuant to the provisions of section 61B(6)(a) of the Probate and Administration Act 1898, the intestate estate of the Deceased passes as to one third share to her surviving sister Daphne May Killeen, as to one third share to the only child of her deceased brother, William Papps, and as to one third share to the nine children of her deceased sister, Edith Mary Belford. The Plaintiff has no entitlement to any part of the estate upon the intestacy of the Deceased.

7 The summons did not name a Defendant. (I observe that, somewhat curiously, the filing details of the summons describe the Plaintiff as “Administrator”. That description may have been used in consequence of the grant to the Plaintiff on 3 June 2008 of letters of administration pursuant to section 41A of the Probate and Administration Act, for the purpose only of enabling the Plaintiff to institute the present proceedings.)

8 It should also here be observed that on 11 March 2009 letters of administration of the intestate estate of the Deceased were granted to Daphne May Killeen, the only surviving sibling of the Deceased, who, upon her sister’s intestacy, is entitled to one third of the estate of the Deceased.

9 Although not a party to the proceedings, Mrs Killeen on 18 December 2008 (that being almost three months before the foregoing grant to her of letters of administration) filed a submitting appearance in the present proceedings. Mrs Killeen has also filed affidavit evidence in support of the Plaintiff’s claim. In her affidavit of 28 November 2008, Mrs Killeen states (paragraph 2) her awareness that she is

entitled to one third share of my sister’s estate, however, I fully support the claim made by Matthew McLeod (Matthew) in this matter and I have no objections to an Order being made for my sister’s entire estate to be given to Matthew.

10 In the light of the attitude of Mrs Killeen towards the claim of the Plaintiff (an attitude which had been expressed at a much earlier stage of the proceedings, before the affidavit from which I have just quoted), Margaret Narelle Radnidge, one of the nine children of one of the deceased siblings of the Deceased, and a person thus entitled to a one twenty-seventh share of the intestate estate of the Deceased, made application by notice of motion filed on 13 August 2008, for an order that she “be joined as a party to the case to play the role of a contradictor or defendant in the proceedings”. That application was originally opposed by the Plaintiff. However, on 10 October 2008, the Plaintiff ultimately withdrew that opposition, and an order was made that Margaret Narelle Radnidge be named as defendant to the proceedings. The proceedings as so constituted then continued, with the Defendant opposing the claim of the Plaintiff for provision out of the estate of the Deceased.

11 The inventory of property annexed to the letters of administration granted to Mrs Killeen on March 2009, set forth the following assets of the Deceased.

Real estate known as
30 Throsby Street, Moss Vale (estimated value) $275,000
Moneys on deposit with bank $1,632
New South Wales Treasury Corporation Bond $8,000
Life policy $1,939
Furniture (estimated value) $1,000

12 Subsequent real estate appraisals obtained on behalf of the Defendant indicate that the Moss Vale property has a value in the range of $200,000 to $220,000.

13 In calculating the value of the distributable estate, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will normally be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to an order that her costs be paid out of the estate. It has been estimated on behalf of the Plaintiff that his costs will total in the range of $45,000 to $50,000. It should be observed, however, that the Plaintiff was granted legal aid on 5 September 2008, and that, according to his solicitor, that grant will cover most of the Plaintiff’s costs (although not any costs incurred from late March 2008 to September 2008). However, the evidence did not disclose whether, in the event that the Plaintiff succeeds in his claim and is awarded his costs out of the estate, he will be required to refund the legal aid which he has already received. It was estimated on behalf of the Defendant that her costs will total about $59,000 (or possibly somewhat less), although it would appear that that amount includes the costs of an unsuccessful mediation.

14 It is obvious, that, even if (as was submitted on behalf of the Plaintiff) the costs of the Defendant be treated as being excessive, being more than a quarter of the value of the estate, the assets apart from the house property are not sufficient to meet more than a small part of the costs of the proceedings. It is inevitable that the house property must be sold, if only to meet those costs.

15 The Plaintiff, although not related by blood or marriage to either the Deceased or her late husband, was from childhood brought up by them, and was treated as if he were their own son. Nevertheless, he was not adopted by them, even though since childhood he has used their surname.

16 It was the case for the Plaintiff that he had a close and loving relationship with both the Deceased and her late husband, and that the nature of his relationship was no different from that of a natural son.

17 The Plaintiff was born in 1964, and is presently aged 45. In 1968, when aged about four, he commenced to live with the Deceased and her husband. In 1973 orders were made by the Children’s Court in Sydney, committing the Plaintiff into the care of the Deceased and the late John McLeod, until the attainment by the Plaintiff of the age of 16 years. Thereafter (with interruptions, to which I will in due course make reference) the Plaintiff resided with the Deceased (and, until his death in 1990, her late husband).

18 The Plaintiff first lived with the Deceased and her late husband in premises at Charles Street, Woolloomooloo. By the time the orders were made by the Children’s Court in 1973, the family was residing in the house property at Throsby Street, Moss Vale. That property has been the residence of the Plaintiff until the present time.

19 The Plaintiff is not in employment. Indeed, he has not been in regular employment since 1989. Since 1998 he has been in receipt of a disability pension, currently in an amount of $550 a fortnight, which he receives in consequence of his suffering from Hepatitis C. He also suffers depression. For those conditions the Plaintiff takes medication, including valium and zyprexa. Apart from his pension, the Plaintiff has no other income.

20 At the time of swearing his principal affidavit on 27 May 2008, the Plaintiff’s assets were,

Four-wheel drive Range Rover (estimated value) $6,000
Ride on lawn mower (estimated value) $500
10 remote control cars (estimated value) $10,000
Electric push bike (estimated value) $700
Furniture and personal effects (estimated value) $3,000
Account with Berrima District Credit Union (approximately) $6,700

21 At that time, and to the present time, the Plaintiff has a liability to the Attorney-General’s Department, described as being for “Victim’s Compensation”. The Plaintiff is, by arrangement, repaying that liability at the rate of $40 a month, the indebtedness in January 2009 being in an amount of $45,300.

22 The Plaintiff shares the Throsby Street residence with his aunt, Mrs Killeen, and Mrs Killeen’s incapacitated son, Gary Patrick Edward Killeeen. Both Mrs Killeen and her son provided affidavit evidence in support of the Plaintiff’s claim; such affidavits also set forth details of their respective financial and material circumstances.

23 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased, or of the circumstances of those persons who are entitled to share in the intestate estate of the Deceased.

24 Mrs Killeen, who is presently suffering from serious health problems, is in receipt of an age pension, presently in an amount of $592 a fortnight. Her son Gary is in receipt of an invalid pension, presently in an amount of about $600 a fortnight.

25 The Plaintiff, Mrs Killeen and Mr Gary Killeen all contribute from their respective pensions to the household outgoings. It was the evidence of the Plaintiff (supported by that of Mrs Killeen and her son) that on numerous occasions the Deceased had said that the Throsby Street property would upon her death pass to the Plaintiff, and further, that the Deceased on those or other occasions required the Plaintiff to undertake to her that there would always be a home in the Throsby Street residence for Mrs Killeen and her son.

26 No evidence was placed before the Court on behalf of the Plaintiff concerning the entitlement of the Plaintiff, Mrs Killeen or Mr Gary Killeen to be accommodated in public housing or concerning the availability or cost of any alternative accommodation for them, in the event that they were no longer enabled to reside in the Throsby Street property. However, the Defendant presented evidence (Exhibit 8) regarding the availability of rental properties in the Moss Vale area.

27 Evidence was placed before the Court concerning the financial and material circumstances of the Defendant and of various other persons entitled to share in the intestate estate of the Deceased. It is a fair summary of that evidence that none of those persons are in affluent financial circumstances, although some are in better circumstances than others.

28 It was submitted on behalf of the Plaintiff that he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that he is a person who was partly dependent upon the Deceased and who had been a member of the household of which the Deceased was a member. The Defendant did not dispute that submission and conceded the status of the Plaintiff as an eligible person within the foregoing paragraph of the definition. The only other eligible persons in relation to the Deceased are Mrs Killeen and her son, Mr Gary Killeen (each of whom also is an eligible person within the same paragraph of the foregoing definition).

29 It should here be recorded that at the hearing the only witness who was cross-examined on behalf of the Plaintiff was Neil Francis Lyon, the solicitor for the Defendant (who was personally conducting the trial on behalf of the Defendant). Neither the Plaintiff, nor the Defendant, nor any other witness was cross-examined at the hearing.

30 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

31 I have had the benefit of receiving a written outline of submissions from the legal representatives of the respective parties, together with a chronology from Counsel for the Plaintiffs. Those documents will be retained in the Court file.

32 The Plaintiff, as an eligible person within paragraph (d) of the foregoing definition, has the standing to bring the present proceedings.

33 However, since he is an eligible person only within paragraph (d) of that definition, he must, pursuant to section 9(1) of the Family Provision Act, establish that there are factors which warrant the making of his application. It will also be appreciated that the proceedings were not brought within the period of 18 months prescribed by section 16 (1) of the Act. Accordingly, the Plaintiff seeks (by prayer 3 of the summons) an order, pursuant to subsection (2) of section 16, that the time for the making of the application be extended up to and including the date of the filing of the summons.

34 It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to set forth as fully and as frankly as possible all information concerning the applicant’s financial and material circumstances. This the Plaintiff signally omitted to do in his evidence in chief. It was only in consequence of the filing of affidavit evidence on behalf of the Defendant adverting to such facts that the Plaintiff, in subsequent affidavits, disclosed that he had spent not insignificant periods in gaol. It was left to the Defendant to provide to the Court details of the very extensive criminal record of the Plaintiff, in respect to drug offences, offences of dishonesty (including break, enter and steal) and motor vehicle offences. The evidence concerning the circumstances which gave rise to the indebtedness of the Plaintiff regarding “Victim’s Compensation” were skimpy in the extreme. It would appear, however, that that indebtedness arose out of some act of violence perpetrated by the Plaintiff upon some other person or persons.

35 I have already observed that the proceedings were not brought within the prescribed period of 18 months from the death of the Deceased. The question of whether the discretion of the Court should be exercised to extend the time in which the proceedings are to be brought, should be considered in the light of the outcome of the substantive claim of the Plaintiff. If the Plaintiff cannot otherwise establish an entitlement to an order for provision, consideration of his application for extension of time would be a barren and fruitless exercise.

36 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether, in consequence of the intestacy of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance.

37 I am satisfied that the Plaintiff was regarded by the Deceased as if he were her son. The circumstances in which the Plaintiff now finds himself, being in receipt of an invalid pension in consequence of his physical condition, suffering from Hepatitis C, being without assets, and having a debt to the New South Wales Government in excess of $45,000, satisfy me that the Plaintiff, in consequence of the intestacy of the Deceased, has been left without adequate provision for his proper maintenance. The fact that the situation in which the Plaintiff presently finds himself may be regarded as being the result of his own folly, in using and becoming addicted to heroin, and in consequence acquiring a substantial criminal record and spending periods in gaol, is not of itself determinative of the Plaintiff’s claim (see Hunter v Hunter (1987) 8 NSWLR 573, per Kirby P at 574f).

38 It will be appreciated that, since he is an eligible person only within paragraph (d) of the definition of that phrase, it is necessary for the Plaintiff to establish, pursuant to section 9 (1) of the Act, that there are factors which warrant the making of this application. Such factors were described by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being,

factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

39 It has been submitted on behalf of the Plaintiff that the factors which warrant the making of his application are, in substance, that for all purposes he was from early childhood treated by the Deceased (and by her late husband) as if he were her son; and that in that capacity he had a close, loving, and filial relationship with the Deceased. For many years he contributed towards the household outgoings of the family group consisting of himself, the Deceased, Mrs Killeen, and Mr Gary Killeen. He also, to the best of his ability, made financial contributions towards the maintenance and improvement of the house property.

40 I consider that the Deceased’s relationship with the Plaintiff being equivalent to that of a mother and son, as well as the foregoing contributions made by the Plaintiff, constitute factors warranting the making of the present application for provision.

41 As I have already observed, the claim of the Plaintiff must be approached in the light of the entitlement of the persons who share the estate upon intestacy. I have already recorded that details of the financial and material circumstances of those persons reveal that none of them can be regarded as being in affluent financial circumstances.

42 I have also observed that the small size of the estate makes it inevitable that the house property must be sold, irrespective of the outcome of the Plaintiff’s claim, if only to meet the costs of the present proceedings.

43 Mrs Killeen supports the claim of the Plaintiff, and, in effect, abandons her own entitlement to one third of the intestate estate of the Deceased. As I understand it, however, that disclaimer of her entitlement was made with a view to the Plaintiff receiving the house property, and upon the understanding that Mrs Killeen and her son would be entitled to remain in residence in that property. However, it was implicit from Mrs Killeen’s evidence that, in the event that the Plaintiff were unsuccessful in his claim to receive the entirety of the house property, she would expect to receive one third of the intestate estate.

44 It will be appreciated that, even if the costs of the present proceedings did not make it inevitable that the house must be sold in order to meet those costs, nevertheless, if the Plaintiff were to receive the entirety of the house property, then none of the other persons entitled upon intestacy would receive anything from the estate of the Deceased. It should not be overlooked that the evidence discloses that the Deceased was given the opportunity, on at least one occasion when the matter was raised with her by a member of her household, to make a will which would carry out the intention which she had orally expressed, that the Plaintiff should receive the house property, but that she did not do so. It is apparent that the Deceased made a deliberate decision not to leave a will and to die intestate.

45 While the Plaintiff clearly has a greater claim upon the bounty of the Deceased than do, for example, her various nieces and nephews, nevertheless, I am not persuaded that those persons who are entitled to share the intestate estate should be entirely deprived of their interest therein. That is particularly so in the case of Mrs Killeen. If, however, she wishes to give to the Plaintiff all or any part of whatever benefit she might ultimately receive from the intestate estate of the Deceased, then that is a matter between herself and the Plaintiff.

46 Since the estate is not large enough to enable to the house property to be retained, and since, in any event, I am not persuaded that the Plaintiff should receive the entirety of the house property to the deprivation of all those persons entitled to share the intestate estate of the Deceased, it seems to me that, the Plaintiff being left without adequate provision for his proper maintenance, it is appropriate that the Plaintiff should receive from the estate a legacy in an amount which will, first, enable him to discharge his indebtedness to the Attorney General’s Department, and then to provide a fund to enable him to enhance his modest lifestyle, and to meet unexpected contingencies.

47 In all the circumstances I consider that the Plaintiff has established an entitlement to receive from the intestate estate of the Deceased a legacy in the sum of $100,000.

48 There remains to be considered the fact that the proceedings were not instituted within the prescribed period of 18 months from the death of the Deceased.

49 It was the Plaintiff’s evidence that very shortly after the death of the Deceased in September 2006, he consulted a solicitor at Moss Vale. Ultimately, after various communications by himself and Mrs Killeen with that solicitor, the Plaintiff was informed by that solicitor in early February 2008 that he was entitled to make a claim under the Family Provision Act, but that that solicitor could not act for him as that solicitor was already acting for Mrs Killeen.

50 Shortly thereafter, the Plaintiff received from that solicitor a letter dated 18 February 2008, which included the statement, “time limits apply as to when you can make an application, and accordingly you should attend to the matter promptly”. It will be observed that that letter did not refer to the nature of any time limit, or to the fact that such time limit was about to expire a month thereafter. It was the Plaintiff’s evidence that at no time did that solicitor inform the Plaintiff of that time limit being 18 months from the date of the death of the Deceased.

51 The Plaintiff subsequently consulted his present solicitor, who, after receiving the file from the previous solicitor, sent to the Plaintiff a letter dated 28 April 2008. It was only upon receipt of that letter that the Plaintiff became aware of the limitation period for the institution of proceedings against the estate. Immediately upon receipt of that letter, the Plaintiff instructed his present solicitor to do everything that was necessary to make such a claim as quickly as possible. The present proceedings were instituted less than two months later.

52 The proceedings were not brought within the period of 18 months from the date of the death of the Deceased, as prescribed by section 16 (1) of the Family Provision Act. In order to comply with the requirements of that subsection, the proceedings should have been instituted no later than 17 March 2008. Since the summons was filed on 26 June 2008, the Plaintiff is a little more than three months out of time.

53 The proceedings were brought after the expiration of the prescribed period. In Warren v McKnight (1996) 40 NSWLR 390, Hodgson J (as he then was) referred to the following four factors as being relevant to the exercise of the discretion of the Court to extend time in a claim under the Family Provision Act.

(a) Sufficiency of explanation for delay.
The Plaintiff first sought legal advice very shortly after the death of the Deceased. Until February 2008 (only about one month before the expiration of the prescribed period) the Plaintiff was totally unaware of the existence of any limitation period. It was only after the limitation period had expired that the Plaintiff was informed, at the end of April 2008, of the nature of that limitation period. Thereafter the Plaintiff and his present solicitor acted promptly in the matter.

(b) Prejudice to beneficiaries.
There is no evidence of any prejudice occasioned to any of the persons entitled to share the intestate estate of the Deceased, as a result of the Plaintiff’s claim being brought out of time.

(c) Unconscionable conduct on behalf of the Plaintiff.
There is no suggestion of any unconscionable conduct on the part of the Plaintiff.

(d) Strength of the Plaintiff’s case.
As I have already observed, I consider that the Plaintiff has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $100,000. It follows, therefore, that the Plaintiff’s claim can be regarded as a strong one.

54 I am satisfied that this is case in which it is appropriate that the Court should exercise its discretion to extend time, in the event that the Plaintiff otherwise establishes an entitlement to an order for provision out of the estate of the Deceased.

55 I summarise as follows my foregoing conclusions.

56 As a result of the intestacy of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance. I am satisfied that the Plaintiff has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $100,000. The competing claims of the persons entitled to share the intestate estate are not such as to have the effect of reducing, let alone extinguishing, the foregoing entitlement to provision which the Plaintiff has otherwise established. The relationship between the Plaintiff and the Deceased was tantamount to that of a son to a mother, and that relationship of itself constitutes a significant factor warranting the making of the present application. I am satisfied that in the circumstances of the present case the Court, in the exercise of its discretion, should extend the prescribed period for the institution of the present proceedings.

57 I make the following orders,

1. I order that the time for the institution of these proceedings be extended up to and including 26 June 2008.
2. I order that the Plaintiff receive from the estate of the late Valerie Joan Veronica McLeod (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 16 January 2010, and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898.
3. I order that the costs of the Plaintiff on the party and party basis (such costs not to exceed $45,000) and the costs of the Defendant on the indemnity basis (such costs not to exceed $50,000) be paid out of the estate of the Deceased.
4. The exhibits may be returned.


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