Miller v Jones

[2002] NSWSC 1200

CITATION:	Miller v Jones [2002] NSWSC 1200
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4206/96; 4225/96
HEARING DATE(S):	27, 28, 29 August 2002
JUDGMENT DATE:	13 December 2002
PARTIES :	Charles Harold Miller (Plaintiff 4206/96) Damon Charles Miller (Defendant 4225/96) Marilyn Jones (First Defendant) Eva Emma May Jones (Second Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	M. Rollinson (for Plaintiff 4206/96) Plaintiff 4225/96 in person M.S. Willmott (for Defendants)
SOLICITORS:	Slattery Thompson, Solicitors (Plaintiff 4206/96) Packer & Austin, Solicitors (Defendants)
CATCHWORDS:	Succession - Family Provision - Claims by adult son (aged 85) and by adult grandson - Financial and material circumstances of Plaintiffs - Liabilities of each Plaintiff include costs awarded in favour of Defendants in unsuccessful probate proceedings brought by Plaintiffs - Competing claims of other beneficiaries - Whether grandson is an eligible person - Alleged partial dependency upon Deceased - Whether there are factors which warrant the making of his application - Effect of unpaid costs owing to Defendants upon any proposed order for provision - Rule in Cherry v Boultbee.
LEGISLATION CITED:	Conveyancing Act 1919 Family Provision Act 1982
CASES CITED:	Re Akerman [1891] 3 Ch 212 Cherry v Boultbee (1839) 4 My&Cr 442; 41 ER 171 Re Fulop, Deceased (1987) 8 NSWLR 679 Singer v Berghouse (1994) 181 CLR 201 Turner v Turner [1911] 1 Ch 716
DECISION:	See paragraph 86.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 13 December 2002

4206/96 CHARLES HAROLD MILLER -v- JEANETTE MARILYN JONES and EVA EMMA MAY JONES

4225/96 DAMON CHARLES MILLER -v- JEANETTE MARILYN JONES and EVA EMMA MAY JONES

JUDGMENT

1 MASTER: These are two sets of proceedings under the Family Provision Act 1982.

2 By summons 4206 of 1996 Charles Harold Miller claims an order for provision for his maintenance or advancement in life out of the estate or notional estate or both of the late Charles Edward Francis Miller (to whom I shall refer as “the Deceased”).

3 By summons 4225 of 1996 Damon Charles Miller claims an order for provision for his maintenance or advancement in life out of the estate or notional estate or both of the Deceased.

4 The Plaintiff Charles Harold Miller (to whom I shall refer as “Charles”) was the son of the Deceased. The Plaintiff Damon Charles Miller (to whom I shall refer as “Damon”) was the grandson of the Deceased. Damon is the son of Charles.

5 The Deceased died on 28 May 1995. He left a will dated 3 June 1994, probate whereof was on 15 October 1996 granted to Jeanette Marilyn Jones and Eva Emma May Jones, the executors named in such will (who are the Defendants to each of the present proceedings).

6 That probate was granted in consequence of contested proceedings heard by Justice Brownie, in which His Honour delivered his reserved reasons for judgment on 3 October 1996. An appeal from that decision was brought by the present Plaintiffs, and was on 17 December 1999 dismissed with costs by the Court of Appeal.

7 The Deceased’s wife, Emma Miller, died in 1993, aged 101. There were three children born to the Deceased, all of that marriage, being Charles Harold (one of the present Plaintiffs), Eva May Woolford (Mrs Jones), and Henry James Joseph (known as “Harry”). Charles had two children, being Damon (one of the present Plaintiffs) and Shellwyn (Mrs Bugge, who is known as “Shelley Bugge”). Mrs Jones had two children, being Jeanette Marilyn and Eva Emma May (who are the two Defendants to each of the present proceedings). Harry had no children.

8 The Deceased, who was aged 100 at the time of his death (he having been born on 13 June 1894), was survived by each of his three children and by each of the foregoing four grandchildren.

9 By his will the Deceased gave the entirety of his estate to his executors on trust, firstly, for the payment of debts, funeral and testamentary expenses, and then to hold the residue to allow his three children to reside in the house property at 45 Leichhardt Street, Leichhardt (which had been the residence of the Deceased during his lifetime) “during their lives”, subject to them paying outgoings in respect to that residence. The will then went on to provide that the net proceeds of the estate should be divided into twenty equal parts, those parts, in the events which have happened, to be paid as follows:

(i) Nine parts to Jeanette;

(ii) Nine parts to Eva;

(iii) One part to Damon;

(iv) One part to Shellwyn (referred to in the will as “Shelwyn Bugge”).

10 The only significant assets in the estate of the Deceased at the time of his death were the house property at 45 Leichhardt Street, Leichardt (to which I shall refer as “the Leichhardt property”), to which an estimated value of $280,000 was attributed; and savings of a little over $18,000 held in a savings account with the Commonwealth Bank at Leichhardt.

11 At the time when he made his will in June 1994 the household of the Deceased at the Leichhardt property consisted of the Deceased, his son Harry, his daughter Mrs Jones and his granddaughters Jeanette and Eva. Harry Miller had lived there (except for a period of war service) from 1934, or perhaps 1936. Mrs Jones had lived there since 1936, except for a period between 1947 and 1949. Jeanette and Eva, who were born in 1951 and 1953 respectively, grew up there and lived there for most of their lives. (Mrs Jones’s husband, Alan Jones, had resided there from 1949 until his death in 1988). As found by Justice Brownie, the Deceased was in ill-health during the last years of his life, and was dependent upon other members of the household. He suffered from very poor vision, was markedly deaf, and was confined to bed or a wheelchair.

12 At the hearing Mr Rollinson of Counsel appeared for the Plaintiff, Charles Harold Miller in proceedings 4206 of 1996; Damon Charles Miller, the Plaintiff in proceedings 4225 of 1996 appeared in person; Mr Willmott of Counsel appeared for the Defendants in each matter.

13 At the commencement of the hearing, by consent of all parties, I made in each matter an order that the two proceedings be heard together and that the evidence in the one, so far as is relevant, be treated as evidence in the other.

14 In a consideration of the assets and liabilities of the estate of the Deceased it is relevant that in the proceedings before Justice Brownie indemnity costs were awarded to the Defendant executors against the Plaintiff Damon, and party-and-party costs were awarded to them against the Plaintiff Charles. The estate’s costs have been assessed at $103,246.09 as against Damon and at $90,509.29 as against Charles. No part of those costs have been paid by either Plaintiff. Further, in the Court of Appeal the costs of the appeal were awarded to the Defendant executors against both Charles and Damon. The Defendants did not proceed with an assessment of those costs because of their belief as to the unlikelihood that those costs would ever be recovered. No part of the costs of the appeal have been paid by either Plaintiff to the Defendants. Costs were also awarded against the present Plaintiffs at an interlocutory stage of the appeal, which was stayed until those costs were paid. Those costs were assessed at $8,318.14. The present Plaintiffs made a successful application to pay those costs by instalments of $100 a week, and those costs were ultimately paid over a period of about eighteen months or so.

15 On 14 January 2000 the Plaintiffs made application for special leave to appeal to the High Court of Australia. On 27 July 2000 the Deputy Registrar of the High Court of Australia issued a Certificate of Deemed Abandonment in respect to that application, pursuant to Order 69A rule 13 of the High Court Rules, consequent upon the failure of the Plaintiffs to comply with the provisions of Order 69A rules 6(1) and 10(9) of those Rules on or before 14 July 2000.

16 The Plaintiff Charles Harold Miller was born on 21 March 1917, and is presently aged eighty-five. He is the eldest child of the Deceased. Mrs Jones was born in 1919 and is presently aged eighty-three. Harry Miller was born in 1921 and is presently aged eighty-one.

17 Charles was married once, to Vivienne (née Westbury) in 1942. I have already recorded that there were born to Charles (of that marriage) two children, being Damon (who was born on 9 October 1956 and is presently aged forty-six) and Shellwyn (known as “Shelley”, Mrs Bugge), born on 25 September 1963, who is presently aged thirty-nine. Charles was divorced in 1972.

18 Since 1986 Charles has been in receipt of a Veteran’s Affairs pension, now presently in an amount of about $250 net per week. Since 1995 he has not owned his own residence, but has occupied various rented properties, or has resided in the capacity of a lodger. According to his affidavit evidence, since about January 2001 Charles has resided with Damon in rented premises at 35 Jarrett Street, Campsie, and pays $150 a week to Damon as contribution to the rent (which is in an amount of $300 a week) and living expenses. Charles owns no assets other than personal effects.

19 According to Charles, for many years he has been dependent upon his son Damon for assistance in family expenses. It is Damon who has on behalf of himself and Charles substantially attended to all matters arising from the death of the Deceased.

20 In November 2000 the claim of Charles was dismissed by the Court of its own motion, for want of prosecution on the part of that Plaintiff, pursuant to the provisions of Part 32A of the Supreme Court Rules. Subsequently orders were made by consent on 21 February 2002, setting aside that order for dismissal.

21 According to Charles, he gave financial assistance to his parents and family from his early teens until he married in 1942 at the age of twenty-five. It was his evidence that he continued to help the Deceased at times, especially after the death of his mother in 1993, when the Deceased was aged ninety-eight.

22 In 1976 Charles purchased a home unit at Canterbury, and commenced to reside therein. That was his only asset. In 1993 he mortgaged that home unit to a Mr Bonyhardy. In consequence of default in mortgage repayments, he was evicted from the home unit, which was then sold under a mortgagee’s power of sale.

23 According to Charles, he is presently in ill health, suffering from dizziness, vertigo and prostate problems. In 1997 he found himself involved in an armed robbery of a bank at Campsie, and asserts that he has suffered nervous problems since that time.

24 Evidence was also given by Charles concerning various visits by him to a house property at 50 Darling Street, Glebe, where, on occasion, he has stayed for various periods. According to Charles, on the periods whilst he has stayed at Glebe he has contributed to the rent paid by the tenant, Mrs Josephine Mackay (whose daughter Geraldine Charles was in the habit of assisting with her musical studies until she left for overseas in early 2001). Mrs Mackay has in return assisted Charles in such domestic activities as the washing of clothes.

25 Under cross-examination Charles agreed (indeed volunteered) that the affidavit evidence concerning the details of the location where he resides and the cost of so residing which were set forth in his affidavit evidence were incorrect. It should here be noted that in his affidavit of 21 December 2001 Charles gave his address as 50 Darling Street, Glebe (that being the address of Mrs Mackay). Under cross-examination Charles asserted that 35 Jarrett Street, Campsie (Damon’s residence) was Charles’s “main place of residence”.

26 I regarded the attempts by Charles to explain the various inconsistencies concerning where he actually resides and his outgoings in respect to where he resides as establishing that he was not a particularly reliable witness.

27 I am satisfied from the responses given by Charles under cross-examination and from the photographs tendered on behalf of the Defendants (Exhibit 1) that, despite his assertions that he resides at Jarrett Street, Campsie with Damon, Charles actually resides with Mrs Mackay at Darling Street, Glebe (and that he formerly resided with her in premises at Leichhardt which she occupied before removing to Glebe).

28 In April 2002 Charles borrowed $500 from the Department of Veteran’s Affairs, against his future service pension, in order to pay some outstanding bills. He is repaying that amount by a deduction of about $10 a week from his pension. He thus receives about $240 net a week.

29 Damon was born on 9 October 1956 and is presently aged forty-six.

30 According to Damon, the Deceased (who hosted Damon’s twenty-first birthday party in October 1977 and who on that occasion presented him with a gift of $500) said to Damon at that time that he would give him $50 every week to help Damon with his university study and living expenses. Damon was at that time studying for a science degree at the University of Sydney. He apparently abandoned that course no more than a month later, in November 1977, in order to work in the business of his father, Charles. According to Damon the Deceased gave him $50 almost every week. That practice continued, according to Damon, for at least ten years. Damon said that he and his father took the Deceased to the races on most Saturdays. When the Deceased had won at the races he gave Damon more than $50 for the week. At that time Damon’s only other income was the wage which he received from Charles’s business.

31 It was the evidence of Damon that there obtained a close and affectionate relationship between himself and his grandfather, the Deceased, with whom he said that he had frequent and regular contact. That nature and extent of the relationship between Damon and the Deceased was disputed by the Defendants. According to the Defendants, after Damon attained the age of about twenty-one, he was an infrequent visitor at the Leichhardt property, sometimes not being seen by them for several years at a time.

32 Damon married Eloise Inu in 1980. Of that marriage was born in 1982 a daughter, Elisha, who as an infant was involved in an accident as a result of which she lost the sight in her left eye. According to Damon, the strain of that accident caused difficulties in his marriage, and he and his wife divorced in 1984. Damon retained custody of Elisha.

33 Damon said that during the period from 1984 to about 1990 (that is, whilst Elisha was aged from about two until about eight) it was his practice to take Elisha with him to the races with the Deceased, and that on occasion the Deceased would give to Damon , as well as the asserted regular $50 week, an extra $20, saying words to the effect, “I want you to buy something nice for Elisha”.

34 In 1988 Damon married Taiana Fo’ou. Three children were born of that marriage, who are now aged fifteen, twelve and nine.

35 It was the evidence of Damon that the regular payments of $50 a week continued for at least ten years, until about 1987. Damon later said that it was at some time between 1992 and his death that the Deceased ceased providing Damon with $50 a week. Damon explained that change in arrangements by attributing to the Deceased a statement to the following effect (which Damon said the Deceased made to him on several occasions), “I’d like to give you $50, but Eva has control of my money” (by which, according to Damon, the Deceased was referring to Mrs Eva Jones).

36 It was also Damon’s evidence that from 1995 onwards his health deteriorated. He is currently being treated for liver disease, high blood pressure and depression. A medical report from his treating physician, Dr Bartipan, dated 20 December 2000, was placed in evidence. Although not otherwise referred to in Damon’s evidence, the report from Dr Bartipan dated 20 December 2000, provided for Centrelink, refers to a wrist injury and a rib injury, each sustained on 6 October 2000, as well as serious depression, having an onset in 1998. It was Damon’s evidence that, due to his ill health, he was unable to work. He has been in receipt of sickness benefits from Centrelink since 1995. He is currently receiving $406.50 a fortnight.

37 Damon has separated from his second wife. He is presently residing at 35 Jarret Street, Campsie with Mrs Neipa Thongkumsai and her two sons, who are studying in Australia. Damon and Mrs Thongkumsai each contribute $150 towards the rent of $300 a week for that property.

38 Apart from his contribution of $150 a week towards rent Damon’s expenses consist of food and a contribution to electricity, totalling about $50 a week. He has a mobile telephone. Otherwise his only assets are clothing and personal effects. It should also be recognised that Damon has an entitlement under the will of the Deceased to one twentieth of residue.

39 At the present time it is estimated that the Leichhardt property has a value of $850,000 to $900,000. That is presently the sole asset in the estate of the Deceased.

40 If the costs of the probate proceedings be treated as a liability of the estate (that is, if the possibility of the recovery of those costs from the present Plaintiffs be disregarded) and if the costs of the Defendants of the present proceedings (about $40,500) be taken into account, the value of the residue must in consequence be far less than the estimated value of the Leichhardt property ($850,000 – $900,000). In the absence of an assessment of the costs in the Court of Appeal it is difficult to calculate a total figure for the costs incurred by the estate in the probate proceedings. However, it is unlikely that the totality of those costs would be less than $250,000. Upon that assumption, the value of the residue would be in the range of $600,000 - $650,000. Damon would thus be entitled to one twentieth of that amount, being $30,000 - $32,500. Damon has no entitlement to receive that amount until his indebtedness to the estate in respect to the costs order made against him in the probate proceedings is discharged, consonant with the principle known as the rule in Cherry v Boultbee (1839) 4 My&Cr 442; 41 ER 171 (see, also, Re Akerman [1891] 3 Ch 212 at 219-220; Turner v Turner [1911] 1 Ch 716 at 719 per Cozens-Hardy MR). Thus, the practical consequence of his unsuccessful participation in the probate proceedings is that Damon will receive no benefit under the will of the Deceased.

41 The estate has liabilities of about $150,000 (representing moneys lent to the estate by the Defendants (about $80,000), by Mrs Jones (about $10,000) and by Harry Jones (about $30,000)), together with legal fees in the present proceedings. In regard to the lastmentioned item (being the costs of the Defendants of the present proceedings), it should here be recorded that in his affidavit sworn 21 August 2002 David Stretford Michael Austin, the solicitor for the Defendants, estimates that the total costs payable by the Defendants in respect to the proceedings will be in the range $30,000-$35,000 for a two day hearing, and that that estimation will increase by about $5,500 a day for each additional hearing day. In the event, the hearing occupied three days. Accordingly, therefore, upon the estimation of Mr Austin, the Defendant’s costs will be in the range $35,500 to $40,500.

42 Legal fees incurred but not yet paid will be funded by further loans from the executors, who are currently making arrangements to borrow sufficient moneys to meet those costs. The Leichhardt property is currently occupied by Mrs Jones and Harry Miller, each of whom is presently aged over eighty and each of whom has resided in that property for well over sixty years. The Defendants have no intention of selling the Leichhardt property whilst it is in their power to fund the liabilities of the estate.

43 According to the Defendants, Harry Miller is in poor health. Since an episode of septicaemia in about 1995, which resulted in the amputation of both his legs, he has been an invalid and has been unable to walk. Since that time he has undergone kidney dialysis treatment at Concord Hospital twice weekly. He is unable to manage on his own and is dependent upon Mrs Jones for care and support. Mrs Jones is in receipt of a carer’s pension of $82 a fortnight on that account. In addition, Mrs Jones receives an age pension of $432.80 a fortnight. Harry Miller receives a disability pension of $926 a fortnight.

44 Mrs Jones owns a vacant block of land at South Strathfield, from which she receives no income. (The present value of that land did not emerge from the evidence, although it appears to have had an estimated value of $80,000 at the time when it was inherited by Mrs Jones from her husband in 1988.) Mrs Jones said that she was proposing to leave that land to her daughters.

45 From the aggregate of their pensions Mrs Jones and Harry Miller must maintain themselves, and also contribute to the upkeep of the Leichhardt property. According to Mrs Jones that property is almost one hundred years old and is in need of repair and regular maintenance. The kitchen and laundry have not been updated in more than fifty years, whilst the roof requires replacement. The house itself needs to be painted and recarpeted.

46 Jeanette is a married woman and has one child, now aged two years. She is not in employment, and remains at home to look after their child, whilst her husband is at work. Jeanette owns the property at 78 Styles Street, Leichhardt in equal shares with her sister Eva. That property was purchased by them in about 1991 for $155,000. Her interest in that property is Jeanette’s only asset, apart from her interest under the will of the Deceased. Jeanette purchased that half share in the Styles Street property with the proceeds of a retrenchment package in June 1998. In order to pay the legal fees of the estate Jeanette and Eva raised $30,000 secured by mortgage on the Styles Street property. Eva is responsible for all repayments in respect to that mortgage, since Jeanette cannot afford to contribute to those payments.

47 Eva resides at 78 Styles Street, Leichhardt. She is in part-time employment, three days a week, as an accountant bookkeeper. She earns $600 gross a week. She is also studying part-time for a bachelor of business and accounting, by correspondence through Charles Sturt University. Apart from her interest under the terms of the will of the Deceased, Eva’s only asset is a one half share in the property at 78 Styles Street, Leichhardt. I have already recorded that there is a mortgage over that property, an amount somewhat in excess of $89,000 presently being outstanding. Eva makes repayments of $793 a month in respect of that mortgage. She has little by way of savings and owes about $25,000 on credit cards. According to Eva her health has not been very good in the past twelve months.

48 As the available cash funds in the estate of the Deceased were not sufficient to pay legal fees in respect of the probate proceedings, and in respect of the present proceedings, Eva, as well as Jeannette, Mrs Jones and Harry Miller have all had to fund the litigation from their own resources. In consequence, Eva and Jeanette had to increase the mortgage over the Styles Street property by $30,000, to meet the costs of the probate proceedings. Eva has also contributed other amounts totalling about $15,000. The balance of those costs have been paid by Jeanette, Mrs Jones and Harry Miller. Jeanette from time to time has contributed various moneys towards the payment of those costs, including sums totalling $7,000 towards the probate proceedings and $11,000 towards the costs in the Court of Appeal, as well as other smaller amounts.

49 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of each of Charles and Damon.

50 Charles, as a son of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. Damon asserts that he is an eligible person within paragraph (d) of that definition, in that, not only is he a grandson of the Deceased, but also he was partly dependent upon the Deceased.

51 That allegation of partial dependency was disputed by the Defendants. It will be necessary for the Court to investigate that allegation. Further, even if such partial dependency be established, and even if, in consequence, Damon be an eligible person within paragraph (d) of the definition, it will, further, be necessary for him to establish, as required by section 9(1) of the Act, that there are factors which warrant the making of his application.

52 It was acknowledged by Damon that the claim of his father, Charles, was more meritorious than the claim of Damon.

53 In performing the first stage of the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210, the Court must first determine whether the applicant has been left without adequate provision for his proper maintenance, education and advancement in life.

54 In the case of Charles, it will be appreciated that he has no significant assets, but he has liabilities (representing the costs orders made against him in the probate proceedings, both at first instance and on appeal). It has already been recorded that the costs awarded against Charles in respect of the hearing at first instance have been assessed at $90,509.29, and that there has not yet been any assessment in respect to the costs of the appeal. However, those latter costs must also be regarded as constituting a significant liability for Charles.

55 Much of the evidence at the hearing before me was directed to the matter of the residence of Charles and where he was living at various times. It must be recognised that under the terms of the will of the Deceased Charles is entitled to reside for his life in the Leichhardt property. This fact should be emphasised, since the Defendants appeared to adopt the attitude that so long as Charles had accommodation elsewhere he should not be entitled to exercise the right of residence given to him by the will. That attitude of the Defendants is wrong, and in adopting that attitude the Defendants are failing to carry out their duties as executors of the estate of the Deceased. The fact that on 1 November 1995 there occurred an incident concerning the proposed changing of the locks of the Leichhardt property by Charles and Damon, which resulted in an injunction against them being made by Justice Simos, cannot affect or reduce the entitlement given to Charles by the will to reside for his life in the Leichhardt property.

56 Charles has not, however, thus far manifested a desire to live in that property. Indeed, were he to do so, I consider that, in the light of the personal relationship between Charles on the one hand and his sister and brother and his two nieces on the other hand, any such exercise of that right would be a recipe for disaster.

57 It was submitted on behalf of Charles that he should receive a one third interest in the Leichhardt property. The effect of him receiving such an interest would, of course, entitle him then to make application pursuant to the provisions of Part 4, Division 6 of the Conveyancing Act 1919, and to cause that property to be sold. The consequence of such a sale would be to dispossess the other two children of the Deceased from the property in which they also have a right of residence under the terms of the will. I am not prepared to dispossess Harry Miller, who is confined to a wheelchair, has had both legs amputated, is in ill health, and who is aged eighty-one, or his sister Mrs Jones, who is now aged eighty-three, of the home in which each of them has resided for the past sixty-odd years.

58 Whilst I recognise that Charles lives in very modest circumstances, and has a frugal lifestyle, nevertheless he did not complain concerning his present residentiary arrangements. I have already stated that I am satisfied that Charles in fact lives in the Glebe premises of Mrs Mackay. Even if Charles did not live with Mrs Mackay (or, as he asserted, with Damon), and even if the relationship between Charles and his kinsfolk were not such as, from a practical viewpoint, to make the right of residence unsatisfactory in its exercise, Charles would not in any event be entitled to look to the Deceased for the means to purchase a residence. It should not, however, be overlooked that Charles was one of the objects of the testamentary beneficence of the Deceased, to the extent that the Deceased by his will recognised it as appropriate that Charles should be provided with accommodation for his lifetime (albeit accommodation the nature of which, in my conclusion, is not of practical suitability to Charles, and has contributed to the consequence that Charles has been left without adequate provision for his maintenance).

59 It should also be borne in mind that neither Charles nor Damon has proffered to the Court any evidence of their respective needs or intentions.

60 I recognise that the indebtedness of each of Charles and Damon to the estate has resulted from the conduct of the Plaintiffs themselves, whose case, and especially the evidence of Damon, were totally rejected by Justice Brownie at first instance and by the Court of Appeal. Nevertheless, in the present proceedings the Court is required, by section 7 of the Family Provision Act, to consider the applications of the Plaintiffs having regard to the circumstances as they exist at the present time. Those circumstances include significant liabilities in each of the Plaintiffs.

61 The Defendants have submitted that the conduct of the Plaintiffs in the probate proceedings was such as to disentitle each of them from the benefit of an order for provision. Whilst that submission may have substance when applied to the claim of Damon, it appears that Charles, although joining in the probate proceedings, was not the primary participant therein. (I note that the caveat (Exhibit C) which, in effect, initiated the probate proceedings, was lodged by only Damon).

62 In all the circumstances, it seems to me appropriate that, in lieu of the right of residence given to him by the will, Charles, in his declining years, should receive from the estate of the Deceased a benefit which will have the effect of enhancing his modest and frugal lifestyle, and providing him with a fund to meet future contingencies (which, at his age of eighty-five, must be regarded as more likely than not).

63 In this regard I recognised the competing claims of the other beneficiaries (including the right of residence of Harry and Mrs Jones, and the claims of the Defendants, who are the significant objects of the testamentary beneficence of the Deceased). I also recognise that, in order to enable the estate to pay such a benefit to Charles it will probably be necessary for the Defendants to increase the mortgage debt on their Styles Street property. (That was a course which the Defendants were prepared to adopt when in 1995 they were offering to buy out the interests of Damon and Mrs Bugge.)

64 I have already adverted to the very considerable liability which Charles has to the estate of the Deceased. If Charles were to be awarded a legacy less than the amount of that indebtedness he would not be entitled to receive such legacy until that indebtedness had been discharged (Cherry v Boultbee, supra). It seems to me, therefore, that, if the practical effect of the making of an order for provision in favour of Charles would be that he would not receive any benefit from that order (since it would merely have the effect of reducing the indebtedness of Charles to the estate), the Court should not make such an order. It is inappropriate that the Court should give its authority to what would be in the nature of an empty order, of no practical effect.

65 In my conclusion, if there be some practical means by which such a result can be effected, Charles should receive out of the estate of the Deceased a benefit in the sum of $75,000. The receipt of that sum will enhance the present frugal lifestyle of Charles, will provide him with a fund to meet future contingencies, and, if invested, will provide him with a somewhat increased income. That benefit should be in lieu of his right of residence in the Leichhardt property. The benefit which I propose should not be subject to the payment of part or all of the costs which have been ordered against Charles.

66 Accordingly, having thus expressed the result which I consider should be achieved in favour of Charles, I propose to stand his proceedings over to a date to be fixed, for the bringing in of short minutes to give effect to the achievement of such a result.

67 I turn now to the claim of Damon. I have already observed that it is necessary for Damon to establish, firstly, that he is an eligible person, and, then, if he establish that he is such an eligible person, that there are factors which warrant the making of his application.

68 I was not favourably impressed by Damon as a witness. I would be reluctant to accept his unsupported evidence where it is in conflict with that of any other witness. I have already recorded that essentially it was the evidence of only Damon himself upon which was grounded the allegation that he was partly dependent upon the Deceased, such partial dependency resulting from the offer, thereupon (according to Damon) carried into effect, that the Deceased would provide him with $50 a week for his study.

69 Concerning that alleged offer, firstly, it should be observed that, even on Damon’s own evidence, the offer was made very shortly before Damon ceased to be a university student. If Damon’s evidence on this topic be accepted, the Deceased made the offer in about October of 1977. Damon ceased his university studies by November of that year. The evidence concerning the alleged statement of intention on the part of the Deceased and the alleged payments of $50 a week by the Deceased consisted solely of the unsupported oral testimony of Damon. That testimony was disputed by the Defendants and by Mrs Jones. Somewhat curiously, Charles did not offer any evidence in support of Damon’s assertion that the Deceased was paying Damon $50 a week.

70 I am not satisfied on the evidence that the Deceased was paying Damon a regular amount of $50 a week from the time when Damon attained the age of twenty-one.

71 But even if (contrary to the conclusion which I have just expressed) the Deceased did for some period make such weekly payments to Damon, I am not persuaded that those payments constituted partial dependency by Damon upon the Deceased. It will be appreciated that at the time when those payments were alleged to have been made Damon was living with his parents, and was on the point of ceasing to be a full-time university student and was shortly to commence employment in the business (the precise nature of which was not disclosed by the evidence) conducted by Charles. There is no suggestion in the evidence that, had it not been for those alleged payments by the Deceased, Damon would have been deprived of either accommodation or sustenance. It will be appreciated that throughout the entire period during which, according to Damon, he was receiving those payments from the Deceased (except for no more than one month of a period extending, according to Damon, over at least ten years), Damon was in full-time employment. Although Damon under cross-examination asserted that the wage which he was receiving was not sufficient for his living expenses, he offered no further evidence concerning either the amount of that wage or the amount of those living expenses.

72 Those $50 a week payments, if made, constituted nothing more than gifts by a well disposed grandfather to a young grandson aged in his early twenties. Damon would have been well able to subsist without them, even if (as I understand him to assert – although he offered no specific evidence in this regard) they had the effect of enhancing and improving his lifestyle.

73 Similarly, any alleged additional gifts of $20, accompanied by a request that Damon should buy something nice for Elisha (if the evidence of Damon in regard to such alleged gifts be accepted), were no more than that, gifts for an infant great-granddaughter from her great-grandfather. Such gifts, if made, can in no way constitute partial dependency of Damon upon the Deceased.

74 Accordingly, even if such payments were made by the Deceased, I am not satisfied that they had the effect of establishing partial dependency by Damon upon his grandfather.

75 It follows, therefore, that since, in my conclusion, Damon was not partly dependent upon the Deceased, he is not an eligible person in relation to the Deceased. Accordingly, he does not have the standing to bring the present proceedings, and his claim must be dismissed.

76 But even if (contrary to the conclusion which I have just expressed), Damon were to succeed in establishing that he was partly dependent upon the Deceased, and was thus an eligible person, and thus had the standing to bring the present proceedings, it would still be necessary for him to establish that there are factors which warrant the making of the present application.

77 In Re Fulop, Deceased (1987) 8 NSWLR 679, McLelland J (as he then was) said, at 681,

[T]hat the ‘factors’ referred to in the subsection are 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.

78 The factors relied upon by Damon in that regard are as follows:

· Damon does not own his own residence, and never has owned such a residence.

· Damon has four children (one being an adult, who has a substantial disability, being blind in her left eye), and these facts were known to the Deceased at the time when he made his will.

· The health problems of Damon, consisting of liver disease, high blood pressure and depression.

79 I have already observed that there is no entitlement in an adult child to look to a parent for the purchase of a residence. Even less can there be a claim upon a grandparent by a grandchild for the purchase of a residence.

80 There was no evidence on behalf of Damon that any of his four children is dependent upon him. He did not provide to the Court any information concerning any maintenance which he might have been paying for those children.

81 The only factor which might possibly be regarded as warranting the making of the present application relates to the health problems of Damon. But the evidence in regard to those health problems (especially the liver disease and high blood pressure) was very skimpy.

82 In all the circumstances of the instant case I am not persuaded that the factors relied upon by Damon are such as would constitute factors which warrant the making of the present application. Those factors would not in my conclusion be such as, when added to the alleged payment of $50 a week, would give to Damon the status of a person who would generally be regarded as a natural object of testamentary recognition by the Deceased. The consequence of that conclusion is that the proceedings brought by him must, in any event, be dismissed.

83 For completeness, I would also state that even if, contrary to each of the foregoing conclusions which I have expressed concerning the claim of Damon (firstly, that he was not partly dependent upon the Deceased, and that, in consequence, he is not an eligible person, and thus does not have the standing to bring the present proceedings; and, secondly, that, in any event, there are no factors warranting the making of his application), the claim of Damon must be regarded in the light of the competing claims of the other named beneficiaries, and, in particular, the claims of his octogenarian uncle and aunt, as well as the claims of his two first cousins, the Defendants.

84 I would not, in any event, on account of the competing claims of the other beneficiaries, be disposed to make an order in favour of Damon which would have the effect of dispossessing Harry Miller or Mrs Jones of their residence. In this regard I repeat the views which I have already expressed when considering the possibility that an interest as co-owner of the Leichhardt property might be awarded to Charles, and the likely consequence upon Harry Miller and Mrs Jones of such an order for provision being made in his favour. Moreover, the competing claims of the two Defendants, who are the chosen objects of the significant testamentary beneficence of the Deceased, are such that, in any event, even if (contrary to all my foregoing conclusions) Damon might otherwise have established an entitlement to additional provision, they would have the effect of extinguishing that entitlement.

85 In my conclusion the claim of Damon must be dismissed.

86 Accordingly, I make the following orders:

4206 of 1996 Charles Harold Miller v Jeanette Marilyn Jones and Eva Emma May Jones

(1). I order that the proceedings be stood over to a date to be fixed, for the bringing in of short minutes the effect whereof will be:

(a) That, in lieu of the benefit given to him by the will of the late Charles Edward Francis Miller (“the Deceased”), the Plaintiff receive a benefit in the amount of $75,000 out of the estate of the Deceased in such a way that that benefit will actually be received by the Plaintiff, and will not be withheld in consequence of any indebtedness of the Plaintiff to the Defendants;
(b) The costs of the Plaintiff on the party and party basis and the costs of the Defendants be on the indemnity basis paid out of the estate of the Deceased.

4225 of 1996 Damon Charles Miller v Jeanette Marilyn Jones and Eva Emma May Jones

(1). I order that the summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.

(3). I order that the Defendants be entitled to recoup from the estate of the late Charles Edward Francis Miller (“the Deceased”) the difference between the aforesaid costs which they may recover from the Plaintiff and the costs of the Defendants on the indemnity basis.

87 In each case the exhibits may be returned.

**********

Last Modified: 04/14/2008