Milne v Kendall
[2010] WASC 338
•26 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MILNE -v- KENDALL [2010] WASC 338
CORAM: JENKINS J
HEARD: 6 AUGUST 2010
DELIVERED : 26 NOVEMBER 2010
FILE NO/S: CIV 2369 of 2008
BETWEEN: JULIE ANN MILNE
First Plaintiff
CAROLINE MARIE MILNE
Second PlaintiffKENNETH JOHN MILNE
Third PlaintiffAND
JOHN STEWART KENDALL as Executor of the Estate of Constance Mary Ursla Collins
First DefendantHELEN PATRICIA KENDALL
Second DefendantELIZABETH MARY JENKINSON
Third DefendantTIMOTHY EDWARD COLLINS
Fourth Defendant
Catchwords:
Family provision and maintenance - Jurisdiction to grant relief - Adult children of the deceased daughter of the testator - Whether testator made sufficient provision for the applicants - Principles upon which relied granted
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7
Result:
Provision out of the estate of Constance Collins is made for Julie Ann Milne in the sum of $50,000, Caroline Marie Milne in the sum of $50,000 and Kenneth John Milne in the sum of $25,000, in substitution for the provision made for the plaintiffs in the will dated 8 June 2007.
Category: B
Representation:
Counsel:
First Plaintiff : Mr G T Stubbs
Second Plaintiff : Mr G T Stubbs
Third Plaintiff : Mr G T Stubbs
First Defendant : Mr J C Curthoys
Second Defendant : Mr J C Curthoys
Third Defendant : Mr J C Curthoys
Fourth Defendant : Mr J C Curthoys
Solicitors:
First Plaintiff : Dwyer Durack
Second Plaintiff : Dwyer Durack
Third Plaintiff : Dwyer Durack
First Defendant : Stables Scott
Second Defendant : Stables Scott
Third Defendant : Stables Scott
Fourth Defendant : Stables Scott
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Butcher v Craig [2010] WASCA 92
Kitson v Franks [2001] WASCA 134
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
JENKINS J: The three plaintiffs are the adult grandchildren of Constance (or Connie) Collins who died on 18 April 2008. The plaintiffs' mother, Margot Milne, who was the daughter of Mrs Collins, died before Mrs Collins. The plaintiffs seek orders that adequate provision be made for them out of Mrs Collins' estate.
The second to fourth defendants are the surviving children of Mrs Collins. They defend this action on the basis that Mrs Collins made adequate provision for the plaintiffs in her last will made on 8 June 2007 (the will). In the will Mrs Collins made specific gifts to each of the plaintiffs of $10,000 and otherwise divided her estate equally between her three surviving children. The first defendant is the executor of the will and the husband of Helen Kendall, the second defendant. He defends the action on the same basis as the other defendants.
For the sake of clarity and consistency, but without any disrespect, I will refer to each of the parties by their first names.
Mrs Collins and her husband lived all their married life on a rural property in the Gascoyne. After her husband died in 1959, Mrs Collins ran the property for a further three years. She then sold it and moved to a home which she had purchased in a suburb of Perth. In 1975 she demolished the old home on this site and built the home in which she lived alone until she was 96. In the last four months of her life she lived with her daughter, Elizabeth. The home is the main asset in her estate.
The will altered the testamentary gifts that Mrs Collins made in her earlier will dated 29 November 2004. In the 2004 will she had left her estate to such of her four children as survived her in equal shares provided that if any child predeceased her leaving children, then such children should take in equal shares that share in her estate which his or her parent would have been entitled. Affidavit evidence from the solicitor who drew up the will indicates that the change was the result of the death of Mrs Milne. Mrs Collins was apparently of the view that adequate provision would be made for the plaintiffs out of Mrs Milne's estate and that they would also inherit from their father.
The statement of particulars of assets and liabilities of Mrs Collins' estate as at her date of death states that Mrs Collins' real property was valued at $785,000. She also had money on deposit and shares then valued at $189,062.19. Liabilities being medical and household accounts were stated to be $2,200. The net value of the estate was $971,862.19.
As at 15 June 2010, the real property was estimated by a licensed real estate and business agent to be valued at between $680,000 and $730,000. The value of cash deposits and shares was $200,661.36. This amount included $61,824.40 which was the value of advances to beneficiaries made for legal expenses up until 1 July 2010. The estate had a liability of $530.69.
The law
If a person dies (the deceased) and a court is of the opinion that the disposition of the deceased's estate effected by his will is not such as to make adequate provision from the deceased's estate for the 'proper maintenance, support, education or advancement in life' of a grandchild whose parent, who was the child of the deceased, had predeceased the deceased the court may, at its discretion, order that 'such provision as the court thinks fit is made out of the estate of the deceased for that purpose': Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act) s 6(1), s 7(1)(d).
If the court makes an order under s 6(1), it may attach such conditions to the order as it thinks fit. It may also refuse to make an order in favour of any person on the ground that his or her character or conduct is such as in the opinion of the court disentitles him or her to the benefit of an order, or on any other ground which the court thinks sufficient: the Act s 6(3). It is not alleged that the character or conduct of the plaintiffs is such as disentitles any one of them to the benefit of an order. The court may also, in making an order, order that the provision may consist of a lump sum or a periodical or other payment: the Act s 6(4).
It is common ground that when determining an application made under these provisions the court is required to conduct a two‑stage process. The first stage requires the court to determine whether an applicant has been left without adequate provision from the deceased's estate for his or her proper maintenance, support, education or advancement in life. This is sometimes called the jurisdictional issue. If the court determines that adequate provision was not made, the court is required to decide what provision ought to be made out of the deceased's estate for an applicant. The second step requires the court to make a discretionary judgment: Bondelmonte v Blanckensee [1989] WAR 305, 307; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 211; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [5] (Gleeson CJ), [56] (Gummow & Hayne JJ).
In Singer the joint judgment of Mason CJ, Deane and McHugh JJ indicated that their Honours rejected concepts of 'moral duty' and 'moral obligation' as being relevant to the jurisdictional issue. However, in Vigolo, Gleeson CJ held that the 'moral obligation' of the deceased is relevant as part of the exposition of the legislative purpose of the Act and in understanding and applying the statutory provisions. Gummow and Hayne JJ, in a joint judgment, found that the terms 'moral duty' and 'moral claims' may mislead. They said that it was therefore better to forego any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language [73].
Whereas, Callinan and Heydon JJ said that they 'would not be reluctant, at least in some cases, to use the expressions "moral duty" and "moral obligation", and to apply the concepts underlying them, which include the idea of "moral claims"' [113].
Their Honours also said:
[T]hat a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant [113].
In determining whether an applicant has been left without adequate provision for his or her proper maintenance, support, education or advancement in life, it is necessary to consider what in all the circumstances was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to:
1.the financial position of each applicant;
2.the size and nature of the deceased's estate;
3.the totality of the relationship between each applicant and the deceased; and
4.the relationship between the deceased and other persons who have legitimate claims upon his or her bounty: Singer v Berghouse; Kitson v Franks [2001] WASCA 134 [10] (Malcolm CJ), [20] (Kennedy J), [35] (Parker J).
In Butcher v Craig [2010] WASCA 92 the Court of Appeal considered that the master at first instance had wrongly directed himself when he said that the moral claims of the beneficiaries would only be relevant when considering competing demands upon the estate if the jurisdictional question was answered in favour of the applicant.
The court also responded to a submission by counsel that an application under the Act should not be allowed if the evidence showed that the applicant had sufficient income to provide for himself in the future. The court said:
Such an argument assumes that, if an applicant can provide the bare necessities of life for himself or herself, an application under the Act must fail. That submission must be rejected. The submission ignores the fact that the inquiry must be about whether adequate provision has been made for the 'proper' maintenance etc of the applicant. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally or has become accustomed to a life of relative penury, does not mean that the testator's obligation under the Act is satisfied so long as the applicant can continue in that state: see Pogorelic v Banovich [2007] WASC 45 [62]. [21]
If an applicant satisfies the jurisdictional test, the court will decide what provision ought to be made from the deceased's estate for that applicant. In determining that issue, the court will take into account the relevant facts as they exist at the time of making the order: Butcher v Craig [24].
Claims by adult grandchildren were considered in Kitson v Franks. Parker J, with whom Kennedy J agreed, set out some useful principles to be applied in respect of such claims. They are:
1.There is no principle that grandchildren should rank less favourably than the children of the deceased in determining claims under the Act. Neither should grandchildren in effect 'stand in the shoes' of their parent, the child of the deceased, and rank equally with other children of the deceased. It is the Act s 6 which determines whether an application should succeed. This section applies the same test to all applicants including children and grandchildren [66].
2.As a matter of fact in determining the jurisdictional issue, it may be a relevant factor that an applicant is a grandchild rather than a child of the testator. Whether that is so and the relevance of the relationship will depend more 'upon the particular circumstances than the actual relationship of grandchild or child'. His Honour gave the examples that a young grandchild left without any substantial means of support is likely to be able to justify the jurisdictional test whereas an adult child established in a profession may not. On the other hand an adult child with a mental deficiency is likely to be able to satisfy the jurisdictional test than a healthy adult grandchild [67].
3.It is not necessary for an adult grandchild to establish that they have any special need or special claim in order to succeed in an application under the Act. The personal circumstances of the applicant are material facts to be weighed in deciding whether a claimant has demonstrated that adequate provision has not been made for them in the will of the deceased [69].
4.If the jurisdictional test has been satisfied the fact that a claimant is a grandchild, as opposed to being a child of the deceased, may be relevant when determining what provision should be made 'especially when there are competing claims and there is insufficient in the estate to satisfy all of them'. The relative remoteness of the relationship of grandchildren is a factor to be taken into account in determining what would be adequate provision for their advancement in life [71].
5.If an applicant satisfies the jurisdictional test, it should be borne in mind that the Act is not intended to authorise the court in effect to rewrite a will because the court may do a better or fairer job than the deceased [79].
In Kitson v Franks the applicants' father, the son of the deceased, had predeceased the deceased a month before the deceased made her final will. The applicants received nothing from their father's modest estate. The trial judge found that one of the applicants was an adult female in gainful employment, in good health and about to be married. However, her financial position was modest and her future 'far from assured'. The trial judge found that that applicant passed the jurisdictional test. The second applicant was an adult male who was comfortably off at the time of his father's death. However, the trial judge found that to the extent that his financial position was dependent on him being able to perform demanding physical work as a plasterer, he had a need for provision from his grandmother's estate when she died.
On appeal, the court did not overturn the trial judge's finding that the first applicant passed the jurisdictional test. However it found that in the absence of any clear reason to regard the second applicant's health as suspect, the mere possibility of future injury or ill health did not provide adequate foundation for a finding that provision from the estate was required for the second applicant.
The court was also of the view that the trial judge erred in determining that, if the applicants' father had survived, the deceased would have left her estate equally to their father and her other surviving children. It said that whilst it may be common for a parent to share his or her estate equally between their children, other specific circumstances may well persuade a parent to a different course. Thus, it could not be said that a wise and just grandmother would take the view that the children of a deceased child should take the share that would have gone to the child of the deceased on the first assumption. The appeal was allowed to the extent that the first applicant was given 15% of the estate and the two living children of the deceased were left the balance of the estate in equal shares. No provision was made on appeal for the second applicant. Parker J said:
This would appear sufficient to satisfy the sense of moral obligation which a wise and just grandmother would have felt for a young adult granddaughter, whose father 'what ever his short comings' had predeceased her and whose mother had remarried, and who was struggling as she sought with her partner to establish herself in life. Such a provision would still allow ample scope for effect to be given to the particular affection and sense of moral obligation which the deceased felt toward [her living children] [92].
Julie Ann Milne
At the date of Mrs Collins' death, Julie Ann Milne, the first plaintiff, was 45 years of age. She was a single parent with a 14‑year‑old daughter. Her income was a parenting pension of approximately $12,000 per annum, maintenance of approximately $4,300 per annum and income from relief work as a teacher's assistant. In the year to 30 June 2008 she earnt $1,482 gross. Thus, her total income for the year ending 30 June 2008 was approximately $17,800. Her 2008 expenses are not in evidence.
After Mrs Milne died in early 2007, Julie had received a third of her mother's estate. This was comprised of $360,000 in cash and shares. With this inheritance, Julie purchased 80 undivided shares in a home unit as a tenant in common with the State housing authority. The property was purchased for $492,000. At the date of Mrs Collins' death she owed the housing authority $78,500, secured by way of a Keystart mortgage which had to be paid prior to her having the remaining shares in the unit transferred to her. Her only other significant assets were the shares she received from her mother. These were not valued at the date of Mrs Collins' death but as at mid‑July 2010 their total value was $9,478.
As at mid‑2010 Julie's financial position had changed little. She still had the 80 undivided shares in her home unit. She had recently purchased a new small motor vehicle and she retained her share of her mother's shares. She had superannuation of approximately $750. She did not have any savings. She still had the Keystart mortgage, then valued at approximately $66,500. She also had a car loan of $22,000. She intended to sell her shares and to use the proceeds to partially pay off her bank loan. She had a Centrelink debt of approximately $1,119 which arose when her inheritance from her mother's estate accrued interest prior to Mrs Collins' death.
At the time of trial, Julie was employed as a specialist wetsuit designer/retail manager. On average she received $570 per week gross or $507 per week net. She continued to receive child maintenance of $909 per month. This payment will cease in 2012, on her daughter's last day of school or if her daughter leaves school before she turns 18, it will cease, on her last day of school. Julie's daughter was born in April 1994. Julie believes that she will have to continue to support her daughter whilst she completes her tertiary education.
Julie states that her monthly expenditure to support herself and her daughter is approximately $2,545. The breakdown she has provided of that amount shows little discretionary spending. Some figures may not be entirely accurate. For example she says that she spends $91 on motor vehicle repairs and maintenance. This appears to be unlikely given that she has a new car.
I accept that Julie's financial position at the time of Mrs Collins' death was only just adequate to enable her to support herself and her daughter. It was not unreasonable for her to use the vast majority of her inheritance from her mother's estate to purchase a home. Whilst it meant that her cash resources were substantially depleted in the short‑term, it immediately relieved her of rent payments. In the longer term, her purchase of such a substantial asset will probably have been a prudent decision.
When Julie was approximately 20 years of age she suffered a sporting injury which has left her with residual problems in her lower spine. She says that this affects her ability to work full‑time as she is unable to sit or stand for long periods because her back becomes painful and immobile. She says that she is unable to carry out work related duties without a regular strengthening and exercise regime. She says that she had hoped to study natural therapies and believes that once she has that qualification she will be able to work within a framework conducive to her medical condition.
There is little medical evidence to support Julie's evidence concerning her back injury. However, I accept that she finds that she is unable to sit or stand for long periods as her back becomes painful and immobile. I am also prepared to accept her evidence that she is unable to carry out her work related duties without a regular strengthening and exercise regime. There was no evidence before me that she has difficulty carrying out her current part‑time work related duties. I accept the opinion of Michael Parry, a rehabilitation consultant, that Julie would have difficulty maintaining full‑time employment.
In respect to Julie's hope to study natural therapies, I note that she has done little over the course of her adult life to achieve this aim. Whilst I acknowledge that her ability to pursue study has been compromised for various reasons, principally because of her responsibilities as a single mother, I find that she has not made diligent attempts to pursue further qualifications. She testified that whilst living in Broome she completed courses in related areas but the most she could attest to was that she had completed a week long workshop on kinesiology. She denied that it was highly unlikely that she would engage in any further studies. Her failure to pursue any one area of study or employment over the course of her adult life does not give me any confidence that she is committed to pursue a qualification in natural therapies.
Julie's parents separated when she was 14 years old and since that time she has had very little to do with her father. She continued to live at home with her mother until she was 19. She left school in year 11. Her mother had a close relationship with Mrs Collins and, therefore, she saw her grandmother regularly. When Julie was 21 she moved to Broome and for over 20 years saw her grandmother infrequently. Whilst living in Broome, Julie worked in numerous different jobs including as a teacher's assistant and in the hospitality industry. Most years Julie returned to live in Perth during the wet season from approximately November to February. During these periods she regularly saw her grandmother whilst staying with or her visiting her own mother. She says that during these three‑month periods she always helped her mother with the care of Mrs Collins. By that she means that she assisted to cook her meals, took her out, cleaned her home, made regular visits, coordinated carers, took her to appointments and ran errands for her. I note that Mrs Collins was independent and did not need carers until late in her life.
There is disagreement amongst the plaintiffs and the defendants as to the extent of the assistance given by the plaintiffs to Mrs Collins prior to her death. The defendants say that the assistance given to Mrs Collins by the plaintiffs was minimal, while Julie and Caroline say that they gave considerable assistance to Mrs Collins, principally when helping their own mother who had assumed her primary care.
In Julie's case I am of the opinion that the assistance she gave to Mrs Collins was no more and no less than one would expect from a granddaughter when living with her own mother or visiting her mother for intensive periods of time. There is insufficient evidence to satisfy me that Julie had any special relationship with her grandmother or that she undertook a heavy load of duties in respect to her grandmother. I accept that Mrs Milne did a lot for Mrs Collins until she (Mrs Milne) became too ill to do so. I accept that Julie assisted her mother in these tasks when she was visiting from Broome. However, for approximately nine months of the year Julie was not in Perth and there is no evidence before me that she maintained any contact with her grandmother during that period of time.
In November 2006 Julie moved to Perth to care for her mother who was then terminally ill. Until Mrs Milne died in February 2007 Julie looked after her and again, as a by‑product, assisted in the care of her grandmother.
After Mrs Milne's death, Julie remained in Perth and assisted her grandmother. She took up some of the responsibilities which her mother had discharged for Mrs Collins.
However, this situation only lasted until July 2007 when Julie again returned to Broome. In September 2007 Julie returned to Perth to finalise her mother's estate. She says that between September and 23 December 2007, when she left Perth again, she, her sister, Caroline, and Elizabeth, the third defendant, were Mrs Collins' primary care givers.
Elizabeth disputes the contribution that Julie made to Mrs Collins' life during these times. It seems to me that the defendants probably are unduly minimising Julie's role during this period but at the same time Julie is probably exaggerating it. The truth is probably somewhere between the two. Given that Julie came and went from Perth between November 2006 and February 2008 apparently without any significant disruption in the care of Mrs Collins, she was probably not playing a pivotal role in the care of Mrs Collins during this period. I am satisfied that when Julie was in Perth she was supplementing the care being given by Elizabeth and Caroline. When Julie returned to Perth in the beginning of February 2008, Mrs Collins was living at Elizabeth's home. I accept that she visited her grandmother regularly and did some chores for her. She was present the morning her grandmother died.
In assessing the contribution that Julie made to her grandmother's care in this last period it is important to note that she only returned to Perth about 17 months before her grandmother died. For the first three months she cared primarily for her own mother. She stayed in Perth for a further four months but then returned to Broome for another two months. She was again absent from Perth for a month and a half over Christmas 2007. This means that of those 17 months she was in Perth for 13 and a half months. For three of those months she would have been primarily occupied with looking after her own mother. For the balance of the time she assisted with the care of her aged grandmother in a manner and to the extent I would expect of a reasonable adult grandchild who was not employed in the workforce and who also had the care of an early teenage daughter.
Caroline Marie Milne
At the date of Mrs Collins' death, Caroline Marie Milne, the second plaintiff, was 42 years of age. She was a single parent with an 18‑year‑old daughter who was studying at university and who was partially dependent on her. Caroline had no income as at the date of death and was living off her savings. Her expenses are not in evidence. By October 2008 she had a part‑time position as a kitchen‑hand earning $400 net per week or $37,306 gross per year. She did not receive any maintenance from her daughter's father due to his personal circumstances.
Caroline also inherited a third of her mother's estate and it was given to her in the same form that it was given to Julie. She used the inheritance to purchase one‑half of a duplex. Her other assets were approximately $3,000 cash at bank, a car valued at approximately $2,000, superannuation of approximately $5,300 and some shares.
Caroline's liabilities consisted of a mortgage securing a home loan of $60,000 and a Higher Education Loan Programme (HELP) debt of $8,633.
Caroline's financial asset position as at the date of Mrs Collins' death was similar to Julie's financial position. Both women had recently received a substantial sum of money by way of an inheritance from their mother. This had enabled them to purchase their own homes but they were still left with modest debts to repay.
As at mid‑2010 Caroline's financial position had changed little. She was not employed but she was undertaking a Bachelor of Social Work degree as a part‑time external student of Edith Cowan University. She was receiving a Newstart Allowance from the Australian Government of $845 per month.
Her main asset was still her home. She had approximately $2,500 cash at bank, a car valued at approximately $3,500, and superannuation of approximately $5,408. Caroline's HELP debt had increased to $11,121 but her mortgage had decreased to $47,817. She had sold approximately $2,250 worth of shares to supplement her income.
Caroline states that her monthly expenditure to support herself and to partially support her daughter is approximately $1,630. Her breakdown of this expenditure appears to be entirely reasonable and as with Julie's breakdown, it shows little discretionary spending.
In 2008 Caroline deposed that she suffered from constant severe sciatica, caused by a protruding disc in her spine. She said that her condition interfered with jobs involving lifting, sitting, bending or standing for long periods. Her evidence is supported by a report from Dr Bedford‑Brown, a general practitioner which states that Caroline has L5/S1 left posterolateral disc protrusion with left S1 nerve root impingement. She also suffers from depression. Dr Bedford‑Brown says that her medical condition affects her daily activities and ability to work. She requires regular analgesia.
There is also a report from Laurel Janette Parsons, a rehabilitation consultant, dated 12 February 2009. Ms Parsons, who is appropriately qualified, said that Caroline's work capacity was 8 ‑ 14 hours per week and her future work capacity (within two years after vocational rehabilitation) was 23 ‑ 29 hours of sedentary work. Ms Parsons noted that Caroline had decided to return to her university studies to retrain as a counsellor and that would be a physically suitable occupation which she could sustain in the long term.
In an affidavit sworn 17 July 2009 Caroline deposed that she had to take Panadeine Forte every hour just to function and she was also taking anti‑inflammatories. She said that she would be attending a neurosurgeon to see if her back could be operated on. She was also taking anti‑depressants.
As at the date of trial, Caroline had not had any operations on her back. Her progress with rehabilitation since Ms Parson's reports were written was not the subject of evidence.
Caroline gave evidence that she has now completed the equivalent of a year and a half at university. She has another two and a half years to go. It was not explained as to whether this was full‑time or at her current rate of study. Caroline has deposed that each semester she is at university she will incur a HELP debt of $4,200.
Caroline was cross‑examined extensively about her past lack of diligence in completing her university degree. She gave evidence that she had left school in Year 11 and moved to Broome in around 1990 when she was approximately 18 years of age. She spent two years in Broome and then returned to Perth. She then returned to Broome when she was 22.
It is difficult for me to follow Caroline's evidence in regard to her personal history. In her oral testimony she said that she spent two years in Broome from 18 (possibly) to 20 and then she returned to Broome when she was 22. She said that she spent all up about eight years in Broome. She agreed that she returned to Perth in about 1998. This history is different to that contained in her affidavits. At par 17(b) of her affidavit sworn 16 October 2008, Caroline deposes that she moved to Broome in around 1990. This would have been when she was 25 and not either 18 or 22.
There is also a discrepancy in her evidence concerning the period of time that she lived with her mother when she returned from Broome. At par 17(c) of the affidavit sworn 16 October 2008, Caroline said that she moved back to Perth approximately ten years ago and lived with her mother for about three years. This would equate to a return to Perth in 1998 and her living with her mother until approximately 2001. However, at par 4(a) of her affidavit sworn 17 July 2009 she says that she lived with her mother from 1999 to 2003. Not only is this a period of four years but they are different years to those which I can ascertain she refers to in her earlier affidavit.
I did not gain the impression that Caroline was deliberately lying or obscuring the truth about her history. However, her vagueness and unreliability concerning her past history makes it difficult for me to draw firm conclusions in her favour about matters which are in dispute.
Doing the best I can, it seems that Caroline probably went to Broome in her late teenage years but returned to Perth within a couple of years. She returned to Broome sometime in her early twenties and remained there until she returned to Perth in about 1998 when she was 33.
On the second occasion Caroline went to Broome she did so with her then husband. Her daughter was born in about 1990. From thereon she was primarily involved in caring for her daughter but she also worked in Broome in the hospitality industry. Particularly, after she separated from her daughter's father, she worked when she could in that industry. However, then she had the care of a small child and found it difficult to obtain childcare whilst she was at work.
Around 1998 while Caroline was still in Broome, she provisionally enrolled at University. She had not then completed her TEE and so she had to pass two introductory units in order to be allowed to continue with her studies.
When Caroline returned to Perth in the late 1990s, she lived with her mother for approximately three years. In 2002 she enrolled at Edith Cowan University. She did only limited study in that year and in the first semester of 2003 and then stopped. In 2002 her mother and her daughter's father were diagnosed with cancer and she was fully occupied caring for them, working part‑time, helping her mother assist Mrs Collins and looking after her daughter. She attempted to recommence her studies in early 2005 but withdrew when her mother became ill again. At the end of 2006 and continuing until her mother's death in February 2007, she spent a lot of time caring for her mother.
Caroline attempted to recommence study again in August 2007 but she had to stop, due to lack of funds. She then obtained full‑time work as a kitchen‑hand.
Caroline acknowledges that over the course of her adult life her studies have been very limited. However, she says that this has been due to her need to support herself and her daughter. Her history does not give me much confidence that she will complete her studies. On the other hand, her more recent recommencement of her studies appears to be a more diligent attempt to complete them at a time in her life when she is fairly free of other responsibilities and more financially independent than she has been in the past. It is clear that unless she does complete her course and obtain a job in that area, she has limited ability to earn an income to support herself at more than a basic level.
Caroline's parents separated when she was 12 years old. I accept that since that time she has had little contact with her father and has not had any contact with him for approximately 15 years.
As was the case with Julie, Caroline had a relatively close relationship with Mrs Collins up until she left home and went to Broome. She also says that whilst in Broome she came to Perth for approximately three months every year and stayed with her mother. She claims that in that period of time she was the 'back‑up carer' for Mrs Collins; her mother being her primary caregiver. She says that when she was in Broome she telephoned her grandmother and wrote to her about six times a year. The defendants dispute the closeness of Caroline's and Mrs Collins' relationship during this period of time. This is principally on the basis that Caroline was in Broome and occupied with her husband and small child. Further, at that period of time Mrs Collins was in good health and did not need any significant care either from Mrs Milne or from Caroline.
I have come to the same conclusion with respect to Caroline as I did about Julie's relationship with Mrs Collins at about the same time. The only difference is that Caroline's relationship with Mrs Collins was probably a bit closer in that she appears to have maintained contact with her grandmother even when she was in Broome and she did a bit more running around for her when she (Caroline) was in Perth.
I accept that after Caroline returned to Perth and lived with her mother for a few years in the late 1990s and early 2000s Caroline would have performed more tasks for her grandmother. However, I also accept that up until this time, Mrs Collins was a fairly independent woman and until 2000 held a driver's licence. She was thus able to look after herself to a significant extent. This is shown in part by the fact that she lived by herself in her own home.
Mrs Collins relinquished her driver's licence in 2000 and from that time she would have required more assistance with shopping, attending appointments and visiting friends. I accept that Mrs Milne assisted Mrs Collins in a lot of those functions.
I am also satisfied that Caroline spent time caring for her grandmother after she returned from Broome but this time was significantly less than the time spent by both Mrs Milne and Elizabeth.
In late 2006 and early 2007, like Julie, Caroline was preoccupied with caring for her own mother who was then terminally ill; although she did step in and help with Mrs Collins as well.
Shortly after her mother's death Caroline made a genuine offer to live with her grandmother. She would have moved into suitable accommodation with Mrs Collins if it had been able to be found. The problem was that Mrs Collins' house was unsuitable because it did not contain sufficient room for Caroline and her daughter. Elizabeth was not prepared to provide accommodation in an investment property which she owned, at less than the market rate. Caroline was offended when her offer was rejected and she then did not have contact with her grandmother for about six months. In October 2007 she resumed contact with her grandmother. By then Mrs Collins was becoming ill and frail. She had some hospital admissions. Caroline visited her and helped with her care until she died in April 2008.
As with Julie, I am satisfied that the defendants have unduly minimised Caroline's role in the care of Mrs Collins and sought to diminish their relationship. At the same time Caroline had probably exaggerated those matters. Mrs Collins was cared for by all members of her family at various times and it is probable that one or more of them took a particular close role in that care at different times depending on their other commitments. It does not do any of them credit to now bicker over such matters.
Generally speaking, I am satisfied that Caroline played a greater role in the care of Mrs Collins than did Julie. Primarily, this was due to Caroline being in Perth for a longer period of time. This not only gave her the physical closeness to Mrs Collins to enable her to assist her but also meant that their relationship was able to be closer.
Kenneth John Milne
At the date of Mrs Collins' death, Kenneth John Milne, the third plaintiff, was 48 years of age. He was and remains single and does not have any children. At the time of Mrs Collins' death Kenneth was unemployed but he did some occasional casual work. The reason he was primarily unemployed is not in evidence. He did not own any real estate. He had $315,000 cash at bank, which was the balance of the money he had inherited from Mrs Milne. He had boats valued at $48,000, a mooring valued at approximately $25,000 and a few cars valued at $22,000. He had superannuation of approximately $7,500 and he owned some shares inherited from his mother.
On 17 July 2009 Kenneth deposed that he had been employed since August 2008 as a maritime linesman. He earned $90 per job and had earned $33,000 for the financial year ending 30 June 2009. He was casually employed.
By July 2010 Kenneth's cash at bank had reduced to $214,000. Kenneth has funded this litigation on behalf of all three plaintiffs from this asset. Kenneth had five motor vehicles and six boats with a total value of approximately $83,500. He also had three moorings valued at approximately $45,000 and superannuation of $10,500. He still had shares which were then valued at approximately $10,250. He had a debt of some $460 to Centrelink as the result of an overpayment. He had received income from his employment at Harbour Services Australia Pty Ltd in the second half of 2009. This was a total of $3,172 net or $3,840 gross. He had not received any income for 2010.
His monthly expenses totalled $2,112. Somewhat remarkably, out of that Kenneth says that he spends only $250 on food and $680 on rent; yet he pays $560 for costs related to his boats and holidays.
Kenneth deposed that his only income in 2010 was bank interest of approximately $870 per month. This would indicate that he is currently living off his capital. He was unemployed. No explanation has been given for him ceasing work except that he told Mr Parry that he found the odd working hours 'very difficult to manage'.
Although Kenneth stated that he would like to purchase a property, preferably near Fremantle, he has not taken any steps to do so. His current strategy of living off his capital appears to be short‑sighted.
Kenneth gave evidence that he owned six boats in order to do them up to sell. Further, he gave evidence that since he made his final affidavit in July 2010 he has spent approximately $50,000 on hail damaged cars at auction, with a view to making money on them.
Kenneth gave evidence that he did not buy a property when he first inherited his mother's money because he thought that property prices were too high. By the time they lowered, he had committed himself, on behalf of the plaintiffs, to paying for this litigation.
Kenneth spent a couple of years travelling in the early 1990s and other than that has either worked in manual occupations or been unemployed. He was not regularly employed between 2001 and his mother's death. He says that he suffers from a back injury which he has had for approximately 22 years. At times it has left him immobilised and in severe pain. It has limited his job prospects. In February 2009 scans showed that he had degenerative disc disease with associated end‑plate changes at L2/3 and L5/S1, which are worse at the latter level.
I accept that it would not be advisable for Kenneth to return to a full‑time labouring role. He has little or no experience in sedentary or clerical roles and he has limited technology skills. It is not clear to me why he stopped working as a linesman as he described to Mr Parry that there was only one aspect of the job which he found physically difficult. It was not obvious that this difficultly was such as to prevent him from continuing in it. In July 2009 he deposed that the work was not strenuous and he had adapted work practices so that they did not affect his back.
There is no reason why Kenneth could not retrain so as to improve his clerical and technology skills. However, on assessing him during his evidence I do not think that he would be suited to such work. He has spent most of his life working outdoors and this would seem to be the sort of work that he is best suited to. His own assessment of his future appears to be that he will buy cars and boats to do up and resell. He can do this at his own rate taking into account his physical limitations.
Kenneth says that as an adult he would see Mrs Collins regularly because his mother was looking after her. He says that he would often catch fresh seafood for them and take them both out for a drive, especially when his mother was diagnosed with cancer. He says that he had a loving relationship with his grandmother.
The defendants say that Kenneth had little or no relationship with Mrs Collins; that he did not see her regularly and that their relationship, such as it was, was strained because Mrs Collins did not approve of Kenneth.
Kenneth denies these matters. He says that Elizabeth's view of him is tarnished because of their very poor relationship. He says that he stopped speaking to her after they had a dispute in 1995. Consequently, he did not see Mrs Collins in the presence of Elizabeth and she did not have the opportunities to judge his relationship with Mrs Collins.
In response to Helen's assertion that she cannot recall any lively and loving banter between Mrs Collins and Kenneth, Kenneth says that it is not in his nature to have a relationship with anyone based on that kind of banter. I have no difficulty in accepting that statement. He says that he talked to his grandmother about fish, cars, politics and other topics. He said he enquired after her welfare and she would ask him for advice about mechanical items she intended to purchase or ask him to repair small items for her.
After observing Kenneth in the witness box and considering all the evidence, I have formed the strong view that Kenneth is an independent man who has spent most of his adult life going where he wanted to go and doing what he wanted to do, which mainly involved him working outdoors. He would have had little in common with his aging grandmother, Mrs Collins, who lived a sedentary life in the suburbs of Perth. I am also of the view that he would not have seen it as his role to look after Mrs Collins or to nurture any special relationship with her. It is quite possible that Mrs Collins did not agree with aspects of Kenneth's lifestyle. This is not to say that they did not have regard for each other or that they did not try to engage with each other when they were together.
I am satisfied that once his mother became ill with cancer, Kenneth had more contact with Mrs Collins. Given the gulf between Mrs Collins and Kenneth in their lifestyles, interests and ages and given the nature of Kenneth's personality, the absence of a close relationship between Mrs Collins and Kenneth does not indicate that Kenneth had deliberately distanced himself from his grandmother. The nature of their relationship was to a large extent dictated by their lack of common traits.
Kenneth has deposed that he loves his father and that at times he has been close to him. He says that sometime prior to 2002 his father showed him what he said was his will. He says he remembers that the will left all of his father's estate to him (Kenneth) and nothing to Julie or Caroline. He says that he had an argument with his father at the time his mother was diagnosed with cancer and they have not spoken since that time. He says that he has seen his father once since 2004, at Mrs Milne's funeral. He says that between the argument and Mrs Milne's funeral, he received two letters from his father. On both occasions he addressed Kenneth as 'Ken McGrath'. McGrath is Kenneth's grandmother's maiden name.
Helen Patricia Kendall
Helen Patricia Kendall, the second defendant, was born in 1936. She has been married to John for over 50 years. She has adult children and grandchildren. John was a career army officer. From 1985 to 1996 they owned and operated a fine art gallery. Helen lives on John's army pension and income from their joint investments. They own their unit. It is unnecessary for me to detail Helen's financial position as she acknowledges that it is comfortable. Helen's entitlement to a share in the estate of her mother does not stem from any financial need.
Helen and John have deposed that Mrs Collins knew that they intend to assist to pay for their grandchildren's private education and that she was pleased to know that her estate may assist to pay for her great grandchildren's education. That may be so, but the evidence does not satisfy me that any allowance I would make out of Mrs Collins' estate for the plaintiffs would mean either that Helen could not contribute to her grandchildren's education or that Mrs Collins' wish to contribute would be negated.
Helen and John each have serious health problems. Fortunately, their financial position enables them to meet the, no doubt significant, costs of their healthcare.
Helen lived most of her married life away from Perth. However, she kept in close contact with Mrs Collins and visited Perth regularly. For the last 30 years of Mrs Collins' life she visited Perth at least once per year. From 2000 up to and including 2007, Helen spent approximately two months each year in Perth, despite her and her husband's own ill health. Her purpose in being in Perth was to spend time with her mother and her siblings. When in Perth she stayed with her mother or sisters. She performed many of the tasks for her mother which Mrs Milne, Elizabeth, Caroline or Julie performed when she was away. Helen also kept in very regular telephone contact with her mother. It seems that they had a close relationship, despite the distance between them that had existed for many years.
Elizabeth Mary Jenkinson
Elizabeth Mary Jenkinson (or Collins), the third defendant, was born in 1944. She was divorced in about 1987 and has not remarried. She has three financially independent adult children.
Elizabeth has worked all of her life other than those periods she was raising her small children. Since the late 1970s she has owned and run a retail gift shop in a Perth suburb (the gift shop). She does not own the retail premises from where the gift shop operates. Elizabeth also carries on a wholesale business of designing and arranging for the manufacture of sleepwear. In the last few years she has 'given' two thirds of the sleepwear business to her children who now run it, although she is still the designer.
In early 2009 Elizabeth deposed that neither of her businesses generated significant profits due to her overheads. She said that most years she earned a profit of between $12,000 ‑ $20,000 but she was able to survive because she had limited personal expenses. She estimated that the value of the businesses would be less than the value of the stock which was worth between $20,000 ‑ $30,000. At that time, she did not have a fixed term lease on the gift shop and she was holding over under a lease which had expired some years earlier. However, in evidence she said that she had now a five‑year lease with an option for a further five years.
Elizabeth's other assets were her home in a Perth suburb and an investment property in another Perth suburb. In 1997 Elizabeth and Mrs Milne jointly purchased a block of land and subdivided it into two lots. They each built similar homes on the separate lots. Thereafter they lived next door to one another and 5 ‑ 6 km by road from their mother, Mrs Collins.
After Mrs Milne died, her home was sold for approximately $1,100,000. Elizabeth says that her home would now be worth somewhat less due to the downturn in the Perth property market. The plaintiffs say that Elizabeth's property was of a higher quality than their mother's home and would be worth more than it. The selling figure for Mrs Milne's home provides an approximate value of Elizabeth's home.
Elizabeth purchased her investment property in 2005 for approximately $475,000, including costs associated with the purchase. She borrowed the whole of that amount secured by a mortgage over her primary home. The investment property has been leased for about $475 per week from which income Elizabeth pays instalments on the loan taken out to purchase the property and other expenses related it. As at January 2009 she owed $460,000 on the mortgage. She intended to use the property to fund her retirement. She has no other superannuation. She said she had no other savings of any consequence. There is no evidence as to the current value of the investment property.
As at January 2009, Elizabeth had recently been diagnosed with diabetes and she had other age‑related illnesses. She was unable to work full‑time in the retail shop and felt 'worn out'. By July 2010, Elizabeth described herself as having been 'very ill' over the previous 12 months. She said that she was only able to work one day per week and had to pay wages to an assistant for five days per week.
The most recent tax return Elizabeth has produced is that for the financial year ending 30 June 2007. It indicated that her gross income was $24,739. There was a $17,298 loss on the investment property but this was offset against earnings of $42,799 from the gift shop.
The most recent financial statement produced by Elizabeth is for the financial year ending 30 June 2006. It indicated that there was a significant increase in the profitability of the gift shop between 2005 and 2006. The 2006 profit was consistent with that declared in Elizabeth's 2007 tax return. I note that the business has a motor vehicle which I assume is generally available for Elizabeth's use.
In evidence, Elizabeth said that the rent from the investment property is deposited into one bank account but the interest repayments for the investment loan are taken from the sleepwear business account because the rent is not sufficient to cover the repayments of at least $3,000 per month. In 2009, Elizabeth deposed that that business had an overdraft of $48,000. The financial documents produced by Elizabeth do not reconcile this accounting.
Elizabeth also gave evidence that the gift shop had a bank account containing $10,000 ‑ $12,000 for day‑to‑day running of the business.
The plaintiffs called an accounting expert, Geoffrey Scott Redmond, who gave evidence that the financial information provided by Elizabeth falls short of the information required to prove her claims about her level of her income, the profitability and value of her businesses and the loss she makes from the investment property.
I accept Mr Redmond's opinion. Elizabeth's tax return is an unsigned copy and the financial statements have not been signed by an accountant. None of the original documents to support her tax return or financial statements have been produced and, in any event, they are not current. It is difficult to see how Elizabeth has managed to support herself and repay her loan on the meagre income she claims to have received from her businesses over a long period. I do not know whether her claims about the value of her businesses are correct and do not believe that she has the expertise to assess such a matter. However, I note that the onus of proof is on the plaintiffs and so my conclusion that I can not rely on Elizabeth's evidence as to the businesses is of only limited assistance to the plaintiffs.
There are some matters which I am satisfied of relating to Elizabeth. These include that at the time of Mrs Collins' death Elizabeth was a hardworking small business owner who supported herself in an adequate, but not lavish, manner from the income generated by her businesses. She had a house valued at about $1,100,000. I do not know the value of the investment property but it would seem reasonable to assume that in 2008 it was worth more than the $450,000 paid for it in 2005. She had debts of approximately $500,000. Her net worth was approximately $1,000,000 plus the value of her businesses. That would still be the case today. Even if the gift shop would be difficult to sell, it has an ongoing value to Elizabeth as a venture which provides her with an income adequate to enable her to support herself.
There is no doubt that the inheritance which Elizabeth received from her mother will be of great benefit to her in order to enable her to maintain her lifestyle into retirement. I am sure that Mrs Collins, as a loving mother, would have wanted to assist Elizabeth in whatever way she could to reduce the time Elizabeth had to continue actively in the workforce.
Elizabeth and Mrs Collins had a close relationship. There is a dispute between the parties over the amount of time Elizabeth, as opposed to Mrs Milne, Julie and Caroline, spent looking after her mother. I am satisfied that when both Elizabeth and Mrs Collins were fit and healthy, Elizabeth's main focus would have been on running her own businesses.
At this time, Mrs Milne provided meals three to four nights per week for Mrs Collins and did other baking for her. Mrs Milne at this time was also working part‑time in the gift shop but the mere fact that she was preparing these meals would have meant that she had considerable contact with Mrs Collins, which Elizabeth probably did not have. Mrs Collins was also independent and did not require much other day‑to‑day assistance. After Mrs Collins stopped driving, Mrs Milne provided Mrs Collins with transport and ran errands for her.
The defendants dispute the plaintiffs' assertion that Mrs Milne was the family member who mainly provided assistance to Mrs Collins. Helen, John and Timothy were not in Perth for long periods and so they were not able to provide such assistance. I am satisfied that when they were absent from Perth they were not in a position to judge what was going on on a day‑to‑day basis in Perth with Mrs Collins. I also accept that when they visited Perth, those persons such as Mrs Milne and Caroline, who had been providing assistance to Mrs Collins stepped into the background so that the visiting family members could spend time and do things with Mrs Collins. To that extent Helen, John and Timothy probably do not have a true picture of what occurred during most of the year.
Elizabeth insists that she did as much, if not more, for Mrs Collins than her sister, Mrs Milne. I do not accept this. Elizabeth had her own retail business to run and, as a matter of common sense, I am satisfied that this would have taken up a lot of her time. Mrs Milne worked part‑time in Elizabeth's shop but this would have been much less time consuming than running the business. Therefore, Elizabeth had less time to spend than Mrs Milne assisting Mrs Collins. This is not in any way to disparage the contribution that she made to the quality of her mother's life.
I am satisfied that in the 1990s and up until the middle of the first decade of the 21st century, Mrs Milne played the greater role in the care of Mrs Collins.
In late 2002, Mrs Collins commenced receiving daily assistance from the local council aged care service, which would have relieved some of the pressure on both Mrs Milne and Elizabeth.
At least from late 2006 Elizabeth played a more, and very, significant role in the care of her mother. By this time Mrs Milne was very ill and the plaintiffs would have been preoccupied with her health problems. For substantial portions of time Julie was not in Perth and Caroline was not speaking to Mrs Collins. Further, Mrs Collins lived with Elizabeth for the last four months of her life.
Timothy Edward Collins
Timothy Edward Collins, the fourth defendant, was born in 1947. He was divorced about seven years ago. It seems that neither he nor his wife have any financial claims on the other. Timothy has three children who are financially independent of him but whom are not well off.
Timothy moved from Perth to Geraldton after his divorce. At that time the former matrimonial home was sold and all the proceeds were used to pay out the mortgage on it.
In January 2009, Timothy was employed as a road traffic controller and earning approximately $950 net per fortnight. He was employed on a casual basis due to the inconsistency of available work.
He had an aneurysm in a vein in his leg in 2004 and this continued to cause him pain when he worked for long hours. Unfortunately, by mid‑2010 this condition had worsened and he had two blockages in his leg. He was waiting to have a further operation. He had not worked for four months. Given his age and health problems, it seems unlikely that he will return to the workforce.
Timothy has no assets of note apart from a 1997 motor vehicle which he is paying off on hire purchase. He has approximately $12,000 worth of superannuation. As at mid‑2010 he was receiving a government benefit of approximately $600 per week.
For the early part of the time Timothy was in Geraldton, he did not see his mother or the plaintiffs very often. However, when his mother became ill and he also needed an operation he started to come to Perth more regularly. At that time he stayed with his mother and looked after her.
He spoke to his mother about his lack of his own home. He believes that she wanted him to purchase a home in Geraldton from the money he inherited from her estate. He is concerned that if the plaintiffs receive a substantial part of the estate he will not be able to achieve his or his mother's desire.
Resolution of the jurisdictional issue
At the date of Mrs Collins' death, even accepting that the plaintiffs received a substantial inheritance from Mrs Milne, each of them had limited financial resources and limited abilities to improve their financial situations. In the latter respect each of them had apparently permanent back conditions which significantly impeded their respective ability to earn income.
The evidence does not permit me to proceed on the assumption that the plaintiffs' father will leave them a substantial share of his estate. The indications are that he will not leave his daughters a share of his estate. It is less clear in respect of Kenneth. The defendants say that whether or not he does so in his will, he has a legal obligation to provide for his children. Thus, it may be said that the plaintiffs have a contingent interest in at least part of their father's estate, which includes a 1000 sq m property in a town south‑west of Perth. However, so much about this interest is uncertain from the time it will be realised, to the amount of each interest and the effort and cost which may have to be expended to receive it. These uncertainties mean that it is not possible for me to give the interest any significant value when weighing the financial position of each plaintiff against other relevant factors.
The defendants say, in effect, that Mrs Collins' estate should not have to pay for the poor educational, lifestyle and financial decisions the plaintiffs have made. I agree, but where it is not alleged that there is any disentitling conduct, neither does the Act permit me to, in effect, punish the plaintiffs for such choices. Rather, I accept that the choices which each of the plaintiffs have made in these respects are facts to be considered in deciding whether each plaintiff has demonstrated that adequate provision has not been made and which give me some indication of what adequate provision would be for him or her. That is, if an intelligent adult makes certain discretionary choices in life (as opposed to forced decisions) then those choices indicate what their own needs and priorities are.
I have formed the opinion that none of the plaintiffs have been prepared to make substantial sacrifices to pursue further education to improve their earning capacities and that none of them have had as a priority the accumulation of financial wealth by hard work. However, all of them have had circumstances which have also forced them to limit their pursuit of adequate provision for themselves. In the case of Julie and Caroline it was their roles as single parents and, in all of the plaintiffs' cases, it has been their bad backs.
I do not distinguish between Julie and Caroline's financial positions. I consider Kenneth to have fewer resources at his disposal but on the other hand his needs and wants were not as great as his sisters.
I do not accept that any of the plaintiffs had a special relationship with Mrs Collins such as would give them a superior claim to Mrs Collins' estate or a claim above that which any adult grandchild, with some health problems and who was struggling financially, would have on their grandmother's estate.
Mrs Collins' estate is not large and her own children have greater legitimate claims on it. Helen, Elizabeth and Timothy each had a good relationship with their mother and there are many reasons why a fair, just and loving mother, as no doubt Mrs Collins was, would have considered their relationship with her gave them significantly greater legitimate claims to her estate than those of the plaintiffs.
However, after weighing all relevant matters I consider that each of the plaintiffs has demonstrated that the gift of $10,000 to each of them left them without adequate provision for their proper maintenance, support, education or advancement in life. The determinative factor in each of their cases is their limited earning capacity due to bad conditions. Thus each of the plaintiffs has met the jurisdictional test.
Resolution of the discretionary judgment
The next determination requires me to make a discretionary determination based on all the facts as to what is a fitting provision out of the estate for each of the plaintiffs.
Helen, Elizabeth and Timothy have significantly greater claims on the estate of Mrs Collins than do the plaintiffs. Neither is it proper to consider that the plaintiffs should stand in the shoes of their mother and should receive her equal share in the estate with her siblings. This is for a number of reasons. Amongst these are that Helen, Elizabeth and Timothy have a greater claim because of their close relationship with Mrs Collins as her children. Secondly, the plaintiffs have each received a substantial inheritance from their mother and thirdly, Elizabeth and Timothy have financial needs of their own.
Neither am I satisfied that any particular allowance should be made out of the estate of Mrs Collins to pay for the future education of Julie and Caroline. Whilst I would encourage both women to pursue further education, I am not persuaded by the evidence that either of them is more likely to do so if they are successful in their applications.
I also have taken into account the value of Mrs Collins' estate and the needs of Elizabeth and Timothy. I consider that an appropriate and adequate provision for each of Julie and Caroline is $50,000 and for Kenneth $25,000. These sums are in substitution for the provision made for the plaintiffs in the will. The balance of the estate should be divided equally between Helen, Elizabeth and Timothy. This provision will enable Julie and Caroline to be nearly debt free and to own their own homes which will provide accommodation for them and their daughters.
In the exercise of my discretion I have allowed a lesser provision for Kenneth. The reason for this is that he had good employment between August 2008 and sometime in 2009 which it seems he gave up because the regular and odd hours did not suit him. He was obliged to be on call 24 hours a day, seven days a week. Whilst I acknowledge that these hours would be unsociable and even difficult to adjust to, on the other hand, he is a single person without any competing responsibilities. The fact that he was prepared to forego the income from that job is a strong indication to me that it is not fitting that substantial provision be made for him out of Mrs Collins' estate to the detriment of the other beneficiaries. If Kenneth does not consider that his needs are such that he needs to work, albeit in a job that has unsociable and odd hours, then his needs and wants are obviously very modest and the provision I make for him reflects that judgment.
The plaintiffs, in their written submissions, have sought that provision for them be made out of Helen's and Elizabeth's shares of Mrs Collins' estate; not from Timothy's share. I have no doubts that this request is a genuine recognition of Timothy's greater need. However, the Act does not enable me to rewrite the will. It was Mrs Collins' intention that her living children should share equally in the balance of her estate, after payment of the bequests to the plaintiffs. This was even though she must have well known that Helen did not need any financial assistance, Elizabeth needed some and Timothy needed substantial assistance. I am not persuaded that it is appropriate for me to take this opportunity not only to make adequate provision for the plaintiffs but also to realign the proportions of the balance of Mrs Collins' estate which she had determined her living children should receive. They are of course free to do that themselves. There is an argument that if Mrs Collins had known that the plaintiffs were to receive a greater share of her estate then she herself may have made such an adjustment, but that is speculation and I am not prepared to act on such a basis.
Prior to delivering this judgment I asked the parties to make submissions as to costs because the exercise of my discretion under the Act requires me to take into account the applicants' financial positions as at the date of making my decision. I must also have regard to the size of the estate. I would be blind to reality if I did not take into account that, absent orders that costs be borne out of the estate, all parties would have significant legal debts. Up to the date of trial the estate had advanced some $60,000 in payment of the defendants' costs. Kenneth had to the date of trial funded the plaintiffs' costs of the action. Whilst I have no details of them, it is reasonable to believe that they would be in the same general region. Therefore it seemed to me desirable that I know the parties' position as to costs prior to me determining the application. The parties declined to assist me in this regard stating that they first wished to consider my reasons for decision. The parties' attitude to my request was most unhelpful.
However, doing the best I can, I have assessed the provision for the plaintiffs on the basis that the parties taxed costs of the action will be borne from the estate. This is the usual order if an applicant is successful. This means that none of the parties will have a significant costs liability but that the estate will be depleted to that extent. The parties should bear my premise in mind when seeking costs orders.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MILNE -v- KENDALL as Executor of the Estate of Constance Mary Ursla Collins [2010] WASC 338 (S)
CORAM: JENKINS J
HEARD: 6, 9 & 10 AUGUST 2010
DELIVERED : 26 NOVEMBER 2010
SUPPLEMENTARY
DECISION :13 JANUARY 2012
FILE NO/S: CIV 2369 of 2008
BETWEEN: JULIE ANN MILNE
First Plaintiff
CAROLINE MARIE MILNE
Second PlaintiffKENNETH JOHN MILNE
Third PlaintiffAND
JOHN STEWART KENDALL as Executor of the Estate of Constance Mary Ursla Collins
First DefendantHELEN PATRICIA KENDALL
Second DefendantELIZABETH MARY JENKINSON
Third DefendantTIMOTHY EDWARD COLLINS
Fourth Defendant
Catchwords:
Costs - Special costs orders - Whether amount of costs allowable in Item 11(a) is inadequate - Whether inadequacy is because of the complexity of the matter - Multiple plaintiffs - Expert evidence
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Legal Profession Act 2008 (WA), s 280(2)
Result:
Special costs order made
Category: B
Representation:
Counsel:
First Plaintiff : Mr G T Stubbs
Second Plaintiff : Mr G T Stubbs
Third Plaintiff : Mr G T Stubbs
First Defendant : Mr J C Curthoys
Second Defendant : Mr J C Curthoys
Third Defendant : Mr J C Curthoys
Fourth Defendant : Mr J C Curthoys
Solicitors:
First Plaintiff : Dwyer Durack
Second Plaintiff : Dwyer Durack
Third Plaintiff : Dwyer Durack
First Defendant : Stables Scott
Second Defendant : Stables Scott
Third Defendant : Stables Scott
Fourth Defendant : Stables Scott
Case(s) referred to in judgment(s):
Butcher v Craig [2010] WASCA 92(S)
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254(S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237(S)
Milne v Kendall [2010] WASC 338
JENKINS J: In Milne v Kendall [2010] WASC 338 I determined that inadequate provision had been made by Constance (Connie) Milne in her will for the plaintiffs, who are three of her grandchildren. Pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act) s 6(1), s 7(1)(d), I ordered that appropriate and adequate provision for each of Julie and Caroline, the first and second plaintiffs respectively was $50,000 and appropriate and adequate provision for Kenneth, the third plaintiff, was $25,000. These sums were in substitution for, and not in addition to, the $10,000 left to each of them in the will.
The parties have agreed substantially the costs orders to be made. First, they have agreed that the first defendant, in his capacity as executor, should have his costs paid out of the estate on a solicitor/client basis. Secondly, they agree that all other parties' costs should be paid by the executor from the residue of the estate to be taxed, if not agreed.
However, the plaintiffs have applied to lift the limit on Item 11(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 to $95,040, which is three times the applicable limit. The application is supported by the affidavit of Daniel Ryan Gill, a lawyer employed by the Plaintiffs’ solicitors. The defendants' position is that Item 11(a) is adequate. The plaintiffs also seek an order in respect of expert evidence.
The law
The Legal Profession Act 2008 (WA) s 280(2) states that if a court is of the opinion that the amount of costs allowable in respect of a matter is inadequate because of 'the unusual difficulty, complexity or importance of the matter', the court may, relevantly, fix higher limits of costs than those fixed in the determination.
'Unusual' qualifies only the 'difficulty' of the matter and not its complexity or importance: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254(S) [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237(S) [33] (Simmonds J). Both Hearltink and Hodgkinson were decided in relation to the identical terms of the predecessor legislation to s 280(2) and, thus, they remain relevant to the construction of s 280(2).
The threshold requirement before a discretion can be exercised as to whether a special costs order should be made is that the court must be of the opinion that a costs determination is inadequate. That requirement will be met if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the costs determination. If that requirement is met, the second question is whether the inadequacy arises because of the complexity of the matter: Heartlink [16]. The plaintiffs do not rely on the unusual difficulty or importance of the matter.
Is the limit in Item 11 inadequate?
Item 11(a) of the 2010 costs determination provides for a limit of $31,680 for a matter commenced by originating motion being for two days preparation, a one day hearing and getting up of 50 hours. The allowance for subsequent days is $3,410.00. The hearing took about one and a half days, but it was spread over three days.
Mr Gill deposes that the plaintiffs have paid legal costs of $11,087 prior to the filing of the originating summons and $79,272 since the filing of the originating summons. They have also paid counsel's fees of $18,219. These amounts are inclusive of GST. Mr Gill has attached to his affidavit each memorandum of fees sent to the plaintiffs. Each of the invoices sent to the plaintiffs say that detailed information supporting the invoice is attached to it, but that information is not attached to the affidavit. However, in his affidavit Mr Gill details some of the work done during the course of the proceedings.
The defendants submit that there is insufficient evidence before me to properly evaluate whether the limit in item 11(a) is inadequate. Despite the lack of a draft bill of costs, I am satisfied, on the basis of Mr Gill's affidavit and my knowledge of the matter as trial judge, that the limit in item 11(a) is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the costs determination.
Is the inadequacy due to the complexity of the matter?
The plaintiffs rely on three matters to show that the inadequacy of the limit in Item 11(a) is due to the complexity of the matter. In my view only one of these matters has been made out. It is that the matter was complex due to there being three plaintiffs, each of whom had a separate case to put to substantiate their claim on their grandmother's estate.
The first matter relied on is that the nature of a claim under the Act is more complicated than most processes begun by originating summons. In support of this point, the plaintiffs point to the fact that the hearing took one and a half days. This submission must be balanced against the fact that Item 11 allows extra costs for matters that take more than a day.
Claims under the Act require a judge to exercise a discretionary judgment in relation to what are often disputed facts. But the disputes are usually about discrete issues relating to the relationship between the claimant and the deceased or the claimant's financial position and earning capacity. The legal principles related to these claims are well settled. A conclusion that the inadequacy of the limit in Item 11(a) is due to the complexity of the matter is not justified simply because this is a claim under the Act.
The second matter relied on by the plaintiffs is that expert evidence was required to be obtained and adduced because of the failure of the defendants to admit the claims made by the plaintiffs about their medical conditions. It is also said that expert evidence was required because of the failure of the third defendant to put forward sufficient evidence to allow proper analysis of her financial position.
In respect of the plaintiffs' medical condition, I am not satisfied that this made the matter complex. Their medical conditions and the evidence relating to them were quite straightforward. There was also a need to obtain expert evidence about prospects of rehabilitation and future employment capacity, having regard to those medical conditions. Again, these factual issues did not make the matter complex.
As to the third defendant's financial position, in my reasons I said that the financial information provided by the third defendant fell short of the information required to prove her claims about her level of her income, the profitability and value of her businesses and the loss she makes from the investment property. However, I pointed out that the onus of proof lay on the plaintiffs to prove their claim, so that this finding was of limited assistance to them.
I accept that due to the limited information provided by the third defendant and the complexity of her financial situation, the plaintiffs needed to engage an expert to examine her financial position. However, the work involved was that of the expert, primarily, and I do not accept that it means that the inadequacy of Item 11 is due to this issue.
Lastly, I turn to the matter which I accept does establish that the inadequacy of Item 11(a) is due to the complexity of the matter. That is, there were three plaintiffs, each of whom had a separate case to present to justify their claim against the estate.
The plaintiffs have addressed this application on the basis that they are only entitled to present one combined bill of costs which, if taxed, will be subject to the usual limit under Item 11(a). However, the reality is that the matter involved three claimants with different factual bases for their claims. Whilst there was considerable overlap in their claims in that their allegations concerning the defendants was the same, each of the claimants was required to provide separate instructions, prepare separate affidavits and give evidence relating to their own relationship with their grandmother, their medical conditions and their financial position. The fact that there were three plaintiffs distinguishes this matter from Butcher v Craig [2010] WASCA 92(S), which is relied on by the defendants. I am satisfied that the inadequacy of the limit in item 11(a) is due to the complexity of three separate claims being included in the one matter.
This finding justifies me in fixing a higher limit than that contained in Item 11(a). However, I am not prepared to triple that limit as it seems to me to do so would accept that there is no overlap between the claims by the plaintiffs. In my opinion there is substantial overlap. I also bear in my mind that the principle of proportionality applies to costs orders under the Act: Consolidated Practice Direction 9.2.2. Thus, I am only prepared to double the limit provided for by Item 11 to $63,360.00.
Expert evidence
Finally, the plaintiffs seek an order that if the matter proceeds to taxation, the taxing officer makes allowance for the plaintiffs' four expert witnesses.
It was reasonable and necessary for the plaintiffs to address, through expert testimony, their medical conditions, their earning capacity and the third defendant’s financial position. Thus, it is appropriate that I make the order sought.
Orders
1.The will of the late CONSTANCE MARY URSLA COLLINS dated 8 June 2007 be amended so that cl 2 reads:
I GIVE (free of all duties):
(a)the sum of $50,000.00 to my granddaughter JULIE ANN MILNE who survives me; and
(b)the sum of $50,000.00 to my granddaughter CAROLINE MARIE MILNE who survives me; and
(c)the sum of $25,000.00 to my grandson KENNETH JOHN MILNE who survives me.
2.A certified copy of this order be included in the probate and that the First Defendant do produce the grant to the Court for that purpose.
3.The First Defendant's costs be paid from the estate on a solicitor/client basis.
4.All other parties' costs:
(a)be paid by the executor from the residue of the estate to be taxed if not agreed; and
(b)if taxed:
(i)to be taxed in accordance with Item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Costs Determinations 2008, 2009 and 2010 as appropriate from time to time;
(ii)the plaintiffs costs to be taxed with the limit under Item 11(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 raised to $63,360.00; and
(iii)the taxing officer is to make allowance for the expert witnesses, Geoffrey Stott Redman, Michael Parry, Dr Lewin Bedford‑Brown and Laurel Parsons.
5.The parties have liberty to apply generally.
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