Moratelli v Westhoff

[2000] NSWSC 279

CITATION:	Moratelli v Westhoff [2000] NSWSC 279
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2049/98
HEARING DATE(S):	9 and 10 February 2000
JUDGMENT DATE:	10 April 2000
PARTIES :	Margherita Moratelli (P) Bryan Joseph Westhoff (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. R. Wilson with Mr. S. J. Burchett (P) Mr. P. Hallen, SC (D)
SOLICITORS:	Potts Latimer (P) W D Clapin (D)
CATCHWORDS:	Family Provision, - Claim by adult daughter - Substantial estate - Gifts to plaintiff by will of a home unit and legacy of $500,000 - Relationship between plaintiff and testator - Letter from deceased addressed to his executors concerning that relationship - Obligation upon applicant for provision to place before Court as fully and as frankly as possible all available information concerning her financial and material circumstances - Absence of any explanation for failure of plaintiff to earn income, either through her profession as a teacher, or otherwise - No competing claims upon testamentary bounty of testator - Plaintiff must establish her own claim upon its own merits - Plaintiff has no entitlement to equality of provision with that given by testator to his other children - Whether plaintiff has been left without adequate provision for her proper maintenance.
LEGISLATION CITED:	Testator's Family Maintenance and Guardianship of Infants Act 1916 Family Provision Act 1982
CASES CITED:	Blore v Lang (1960) 104 CLR 124
DECISION:	See paragraph 49

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 10 April 2000

2049/98 MARGHERITA MORATELLI -v- BRYAN JOSEPH WESTHOFF - ESTATE OF VITTORIO ENRICO MORATELLI

JUDGMENT

1    MASTER: These are proceedings under the Family Provison Act 1982. 2    By summons filed on 17 April 1998 Margherita Moratelli, the plaintiff, claims an order for provision for her maintenance and advancement in life out of the estate of her late father, Vittorio Enrico Moratelli (to whom I shall refer as “the deceased”). 3    The deceased (who was born in Italy on 1 January 1932) died on 19 November 1996, aged sixty-four. He left a will dated 15 October 1996, probate whereof was on 7 April 1997 granted to Bryan Joseph Westhoff, one of the executors named in such will (who is the defendant to the present proceedings). 4    The plaintiff (who was born on 18 January 1962 and is presently aged thirty-eight) is the only child of the first marriage of the deceased, being to Sarina Rosaria Moratelli, on 25 October 1959. That marriage was dissolved, the decree nisi being dated 24 November 1965. The deceased subsequently married Anne Eva Rosemarie Driver, on 3 April 1969. Of that marriage were born two children, Vittoria (who was born on 3 March 1972 and who is presently aged twenty-eight) and Michela Giuseppina (who was born on 20 October 1976 and who is presently aged twenty-three). 5    The deceased was survived by his widow, Mrs Anne Moratelli and his three children. 6    At the time of his death (and, it would appear, since 1990) the deceased was a resident of Monte Carlo in the Principality of Monaco. 7    By the terms of his will, and in the events which have happened, the deceased gave to the plaintiff a legacy in the sum of $500,000, together with a home unit situate at and known as 24/41 Kangaroo Street, Manly. 8    The deceased gave to his widow his house property situate at and known as 6 Balmoral Avenue, Mosman, together with those chattels which, by clause 3(d) of the will, are called “my chattels”, and a legacy of $500,000. He gave a legacy of $150,000 to each of is two brothers. He gave $1,000,000 on trust for his daughter Vittoria, and $1,000,000 on trust for his daughter Michela. The residue of his estate he gave to his widow. 9    The inventory of property annexed to the grant of probate discloses the property owned solely by the deceased as consisting of the house property at 6 Balmoral Avenue, Mosman (to which is ascribed a value of $3,000,000); the strata home unit at 24/41 Kangaroo Street, Manly (to which is ascribed a value of $420,000), together with rent accrued thereon; furniture and other contents of 6 Balmoral Avenue, Mosman (to which is ascribed a value of $20,000); together with money in hand, shares in companies, taxation credits and other personal property (having a total value of about $33,000). The inventory of property also discloses various assets owned by the deceased as joint tenant with his wife. Those assets consist of a house property situate at and known as 33 Carrington Avenue, Mosman (to which is ascribed a value of $2,600,000); shares in companies (to which is ascribed a total value of $1,684,991); and the balance of an account maintained by the deceased with his accountants in an amount of $22,465. 10    The Manly property was transferred to the plaintiff on 15 August 1997, and the accrued rents thereon (by that time totalling $21,751) were transferred to the plaintiff on 24 December 1997. The legacy of $500,000 was paid to the plaintiff on 16 June 1997. With that legacy the plaintiff purchased a motor car for about $24,000. From the balance of the legacy an amount of about $470,000 has been invested by the plaintiff with Suncorp/Metway, that investment producing an income of about $24,440 a year. The gross rent which the plaintiff receives from the Manly unit is about $27,200 a year. 11    It will be appreciated that the assets owned solely by the deceased which are disclosed in the inventory of property reveal that, apart from the two items of real estate (to one of which the plaintiff was specifically entitled under the terms of the will), the other assets were not sufficient to meet the legacy of $500,000 to the plaintiff. That legacy was, in fact, paid from moneys advanced to the estate by the widow of the deceased. 12    According to the defendant, no arrangements have yet been made for the establishment of the two trust funds of $1,000,000 each, for the benefit of Vittoria and Michela respectively. 13    After the separation of her parents, and their subsequent divorce, the plaintiff continued to live with her mother. Firstly, for a period of about six months, they resided with her mother’s parents. They then resided in a house property at Seaforth which had been purchased by the plaintiff’s mother. The plaintiff attended private schools. Until the end of the plaintiff’s schooling her mother received child support from the deceased (as well as receiving spousal maintenance). 14    For her last two years in high school and thereafter until late 1994 or early 1995 the deceased provided to the plaintiff an allowance of $80 a week. In 1993 the deceased sent to the plaintiff a cheque for $26,750, that amount being intended for the purchase by her of a motor car. However, the plaintiff chose to use that money for living expenses, rather to expend it on its intended purpose, the acquisition of a motor car. (In fact, as early as 1990 the plaintiff had requested her father to give her a motor car.) 15    When in November 1994, as a result of an agreement between her parents, the plaintiff’s mother received from her father a lump sum of $50,000 in lieu of future payments of spousal maintenance the deceased then stopped paying to the plaintiff the regular amount of $80 a week. However, the deceased continued to give the plaintiff presents on her birthday and at Christmas. Those gifts were in amounts of moneys, always some hundreds of dollars, ultimately increasing to amounts of $1,000 in the two years preceding his death. 16    In addition, the deceased also paid all medical, dental and pharmaceutical expenses for the plaintiff. 17    The plaintiff is unmarried and has no dependants. She is qualified as school teacher. It would appear that the plaintiff obtained a Bachelor of Arts degree in languages and architecture at the University of Perugia in 1983, and that she subsequently obtained a Bachelor of Arts degree in languages at the University of Sydney in 1985, in which year she commenced teaching on a part time basis. 18    A considerable quantity of affidavit evidence was filed on behalf of the plaintiff. Much of that evidence was totally irrelevant to the present proceedings. Little of that evidence addressed itself to the essential matters which must be established by an applicant making a claim under the Family Provision Act. 19    In this regard it is appropriate to quote the following salutary admonition of Windeyer J in Blore v Lang (1960) 104 CLR 124 at 137, concerning the statutory predecessor of the Family Provision Act, being the Testator’s Family Maintenance and Guardianship of Infants Act 1916,

The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probably future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

20 It was only after the commencement of the hearing (and, it must be said, consequent upon a strong suggestion emanating from myself) that the plaintiff filed an affidavit setting forth information concerning her financial and material circumstances. Indeed, the only relevant information in that regard which emerged from the affidavit in chief of the plaintiff (being the affidavit sworn 2 February 1999) were the assertions that the plaintiff’s income from the Manly home unit (which is tenanted) was $18,000 a year gross (paragraph 43), that interest from the legacy of $500,000 under the will of the deceased was $20,000 a year gross, and that those two sources of income gave to the plaintiff a total of $38,000 a year gross (paragraph 44), that her expenses totalled $36,000 a year (paragraph 45), and some information concerning the Manly unit and the strata levies thereon (paragraph 46). 21 There was admitted into evidence (as exhibit B) a valuation of the Manly home unit, dated 3 February 2000. That document (which described itself as an “appraisal”) set forth a market value of about $490,000. However, it appeared that the valuer (who it will be appreciated, had been retained on behalf of the plaintiff) had not been able to obtain internal access into the Manly unit, even though he had, apparently, requested of the plaintiff that he be allowed such access. It will also be appreciated that the valuer, Mr Samuel Delaney, did not provide an affidavit in this matter, and that his valuation had been prepared only a few days before the commencement of the hearing. In fulfilling her obligation to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances, it is the responsibility of the plaintiff to provide a valuation of such a significant asset as the Manly unit at the date of the hearing. I do not consider that a valuation prepared by a valuer retained by the plaintiff who has requested that he have internal access to the property, but, despite such request, is denied such access, fulfils the foregoing obligation of the plaintiff. 22 The home unit at Kangaroo Street, Manly, is currently tenanted, and strata levies on that unit are in an amount of $720 a quarter. 23 The plaintiff after completing her schooling spent about three years in Italy (which period is said to have been at the expense of the plaintiff’s mother, who in fact joined the plaintiff in Italy for about one year). Since her return to Sydney in 1983 the plaintiff has resided with her mother in a one bedroom flat at Fairlight. The plaintiff has assisted her mother in managing the house property at Seaforth which the plaintiff’s mother acquired as a result of her divorce from the deceased and in which the plaintiff and her mother resided for about fourteen years. That property has been tenanted since 1980. 24 According to the plaintiff she had a close and loving relationship with her father, and had frequent and regular communication with him. That assertion was disputed by the defendant. 25 The assertion was also disputed by a letter written by the deceased himself addressed to his executors and dated 14 March 1995 (which letter, as a statement made by the deceased, is admissible pursuant to section 32 of the Family Provision Act). Further, various other items of correspondence passing between the plaintiff and her father during his lifetime are totally inconsistent with the assertion by the plaintiff of regular and frequent contact between herself and the deceased. 26 It clearly emerges from the various items of correspondence which are in evidence that throughout his life, and especially after the separation and subsequent divorce from the plaintiff’s mother, the deceased was strongly desirous of maintaining a close, loving and affectionate relationship with the plaintiff. However, through the deliberate choice of the plaintiff the deceased was deprived of such a relationship. His letters to the plaintiff contain a recurring theme of a desire to see the plaintiff, a desire that she should contact him, and enquiry as to why she consistently refuses to do so. The letter of 1995 addressed to his executor sets forth in detail the attempts by the deceased to maintain a relationship with the plaintiff. 27 To the extent that the plaintiff’s evidence is inconsistent with the letter from the deceased of 14 March 1995, I do not accept the plaintiff’s evidence. 28 It is appropriate here to record that I considered it to be significant that no evidence was offered by the mother of the plaintiff, who was present in Court throughout the hearing. She would have been in a position to corroborate much of the plaintiff’s evidence concerning the nature of the relationship between the plaintiff and the deceased if that evidence were true. 29 Despite her constant rejections of his overtures, the deceased was, in fact, a very generous father to the plaintiff. During his lifetime he regularly gave her presents on her birthday, at Christmas and at Easter each year. He also in 1993 gave to her an amount of $26,000, for the purpose of acquiring a motor vehicle. 30 But more than anything else, the generosity of the deceased to his eldest daughter is disclosed by what can only be described as the munificent provision made for her by his will. 31 I have already recorded that the legacy of $500,000 was paid to the plaintiff from moneys advanced by the widow of the deceased. She also advanced the moneys required to pay the legacies of the $150,000 to each of the two brothers of the deceased. Had it not been for this generous attitude on the part of the widow, there would have been insufficient assets in the estate to meet the legacy to the plaintiff, since, apart from the two specific pieces of real estate, each of which was the subject of an express gift, the other assets in the estate totalled only $52,000. 32 The plaintiff as a daughter 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, she has the standing to bring the present proceedings. The only other eligible persons in relation to the deceased are the widow (who is an eligible person within paragraph (a) of the definition), Vittoria and Michela (who are eligible persons within paragraph (b)), the plaintiff’s mother (who, as the former wife of the deceased, is an eligible person within paragraph (c)), and Gareth Driver, the son of Mrs Anne Moratelli by her previous marriage (who is an eligible person within paragraph (d) of the definition). None of those other eligible persons has made a claim against the estate of the deceased. 33    It cannot be emphasised too strongly that it is for an applicant who claims an order for provision for her maintenance and advancement in life, to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances. This, the plaintiff in the instant case has signally failed to do. From the considerable body of evidentiary material filed on her behalf (much of it in inadmissible form, and much of it totally irrelevant) it is very difficult to extract relevant information concerning her present financial and material circumstances. 34    The income of the plaintiff was originally stated to be in an amount totalling $38,000 a year (consisting of $18,000 gross by way of rent from the Manly unit, and the interest of $20,000 upon the balance of the legacy of $500,000). It is, however, difficult to reconcile the foregoing figures with the statement by the plaintiff in her affidavit of 9 February 2000 that the Manly home unit is rented out for $520 a week. That rental would produce $27,040 a year, an amount considerably higher than the figure originally stated by the plaintiff. Similarly, under cross-examination, the plaintiff agreed that the income from her investment with Suncorp/Metway was about $24,440 a year. Thus the present gross income of the plaintiff is about $51,500 a year. 35    She owns a motor vehicle of which she states that the present insured value is $17,000. In addition, the plaintiff has an amount of $20,000 held in her solicitor’s trust account. (I assume that that amount is dedicated to the costs of the present proceedings which are estimated by the solicitor for the plaintiff as totalling about $31,300.) The plaintiff has no liabilities. 36    There is no suggestion that the plaintiff’s income or her assets are not sufficient for her present or likely future needs or requirements (although she has not identified with any degree of particularity the nature of such needs or requirements). 37    It is through her own choice that the plaintiff currently resides, and for many years has resided, with her mother in a one bedroom unit at Fairlight. There was no suggestion by the plaintiff that those living arrangements were unsuitable or unsatisfactory, or that she was desirous of altering them. It is recognised that were the plaintiff to live in the Manly home unit, her income would in consequence be reduced by the amount of about $27,000, which she currently receives by way of rent (although, by the same token, her expenses in respect to those premises would be reduced somewhat). 38    There is no evidence which explains in any way the circumstances in which the plaintiff ceased to follow her profession as a teacher, or the reason why she has made no attempt to resume that occupation, or why for a considerable period she has not been in any employment. (The plaintiff’s evidence, which is far from being either complete or specific in this regard, suggests that the plaintiff has never been in full-time employment, and that even when she did follow her chosen profession as a teacher, it was only on a part-time basis.) 39    Whilst in her affidavit the plaintiff expressed an ambition to study architecture in America, she has not chosen to place before the Court any information concerning the nature or duration of any course which she is desirous of undertaking, or the cost of any such course. 40    At the outset of the hearing Counsel for the defendant stated that no submission would be made that any order for provision an entitlement to which the plaintiff might otherwise have established should be reduced, let alone extinguished, by reason of any competing claims upon the testamentary bounty of the deceased. That is, there was no submission made on the part of the defendant that the financial and material circumstances of the widow, Vittoria or Michela (or of the two brothers of the deceased) were such that any order for provision which the plaintiff might otherwise have established should be reduced by reason of those circumstances. 41    Nevertheless, it cannot be too strongly emphasised, that the plaintiff must establish her own claim upon its own merits. Her claim cannot be enhanced by pointing to some perceived lack of need, or (as in the instant case) some perceived affluence in the other beneficiaries. Neither can the claim of the plaintiff be established, or quantified, by resort to some asserted entitlement to equality between the plaintiff and her two half-sisters. 42    In the light of the foregoing concession made by Senior Counsel for the defendant concerning the situation of the other beneficiaries, it will be appreciated that the circumstances of those beneficiaries, in particular, of the widow, are totally irrelevant. It follows, also, that it is of no concern to the Court that there might be other assets over which the deceased might have exercised some control and which might presently exist outside the jurisdiction of the Court. 43    It will be appreciated that the plaintiff makes no claim for an order for provision out of the notional estate of the deceased. Indeed, Counsel for the plaintiff expressly stated in response to a question asked by me that he was not suggesting that the actual assets (in particular, the house property at Balmoral Avenue, Mosman) would not be sufficient to meet any order for additional provision which the plaintiff was seeking out of the estate. The amount of such additional provision was expressly stated by Counsel for the plaintiff as being an additional legacy of $500,000. 44    In those circumstances I do not understand the reason for the attempt during cross-examination of the defendant to elicit information concerning the existence of other assets outside the jurisdiction of the Court. Since the assets within the jurisdiction are more than sufficient to meet any order for provision which the plaintiff is seeking, and since no claim is made in relation to any notional estate of the deceased, I rejected those attempts on the part of the plaintiff during cross-examination of the defendant. 45    Even if (contrary to the conclusions which I have already expressed concerning the nature of the relationship between the plaintiff and her father) the evidence had disclosed that the closest and most affectionate relationship obtained between the plaintiff and the deceased, I consider that the plaintiff has not established that the very generous provision to her of a home unit (which appears at the present time to have a value of no less than $490,000), together with a legacy in the sum of $500,000, has not been sufficient to make adequate provision for the proper maintenance and advancement in life of the plaintiff. I have already referred to the total absence of any explanation for the failure of the plaintiff to earn income, either through the profession in which she is qualified, or otherwise. 46    The plaintiff has received extremely generous provision in the terms of the will of her father. She has not established an entitlement to receive more. 47    Accordingly, I propose to dismiss the plaintiff’s claim. 48    The defendant submitted that, in the event that the plaintiff’s claim were to be dismissed, the Court should make an order that the costs of the defendant be paid by the plaintiff on the indemnity basis. I consider that the defendant is entitled to an order for his costs. Nevertheless, I am not persuaded that those costs should on other than the party and party basis. The fact that, ultimately, a party is unsuccessful in proceedings does not of itself necessarily result in an order for indemnity costs against that party. Costs in Family Provision proceedings have traditionally been regarded somewhat differently from costs in normal adversarial proceedings. It seems to me appropriate in all the circumstances of this case that the costs which I propose to order the plaintiff to pay to the defendant should be on the party and party basis. The defendant will, of course, be entitled to recoup from the estate the difference between his costs on the indemnity basis and the costs that he recovers from the plaintiff. 49    Accordingly, I make the following orders:

1. I order that the summons be dismissed.

2. I order that the plaintiff pay the costs of the defendant, such costs to be on the party and party basis.

3. I order that the difference between the amount of the foregoing costs recovered by the defendant from the plaintiff and the costs of the defendant on the indemnity basis be paid to the defendant out of the estate of the late Vittorio Enrico Moratelli (“the deceased”).

4. The exhibits may be returned.
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Last Modified: 09/25/2000