Morgan v Stephenson: Estate A.W. Horne

[2004] NSWSC 264

CITATION:	Morgan v Stephenson: Estate A.W. Horne [2004] NSWSC 264
HEARING DATE(S):	1 & 2 April, 2004
JUDGMENT DATE:	2 April 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Plaintiff's Summons dismissed with costs.
CATCHWORDS:	FAMILY PROVISION ACT - ELIGIBLE PERSON - Plaintiff was member of deceased's household as small child - plaintiff financially dependent on deceased for short time as small child - no subsequent financial dependence. - HELD: Plaintiff was "an eligible person" but application for provision from deceased's estate not warranted.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) - s.6, s.7, s.9(1)
CASES CITED:	- Benney v Jones (1991) 23 NSWLR 559 - Fulop, Re (1987) 8 NSWLR 679
PARTIES :	Janice Anne Morgan - Plaintiff Deborah Stephenson - Defendant
FILE NUMBER(S):	SC 1761/03
COUNSEL:	J.R. Dupree - Plaintiff B. Sharpe - Defendant
SOLICITORS:	L.C. Muriniti & Assoc. - Plaintiff Gary Cleary & Assoc - Defendant

1 The Plaintiff seeks an order that provision be made for her maintenance, education and advancement in life pursuant to s.7 of the Family Provision Act 1982 (NSW) out of the estate of the late Alexander Winchester Horne, who died on 28 March 2002 leaving a Will dated 16 March 2000. Probate of the Will was granted to the Defendant on 14 May 2002. 2 By his Will, the Deceased divided his estate between his daughter, Alice Currie, and the Defendant, provided that they survived him. Alice Currie died before the Deceased. Under the provisions of the Will, therefore, the whole of the estate passes to the Defendant. 3 The Plaintiff and the Defendant are half-sisters. The Plaintiff is the daughter of the marriage of Alice Holly and Alexander Hatfield and she was born on 16 June 1946. Her brother, Paul Hatfield, was born of that marriage on 8 May 1948. The Plaintiff’s parents separated in 1948 and their marriage was later dissolved. Alice married John Currie in 1953. The Defendant was born of that marriage on 12 November 1960. 4 The Plaintiff’s mother, Alice, was the daughter of the marriage of Emily and Claude Holly. After Mr Holly’s death, Emily married the Deceased. There were no children of that marriage. The Deceased was not, therefore, the biological grandfather of the Plaintiff. Nevertheless, as the circumstances hereafter recounted explain, the Plaintiff and the Defendant both looked on the Deceased as their grandfather. It will be convenient to refer to the Deceased and the parties’ biological grandmother as the grandparents. 5 The facts relevant to the Plaintiff’s application are as follows. 6 In 1948, about two years after the Plaintiff’s birth, her parents separated. Her mother, Alice, then went with the Plaintiff and her younger brother, Paul, to live with the grandparents at their home in Leichhardt. 7 In 1949 the Plaintiff’s mother formed a relationship with John Currie, who was then a boarder in the grandparents’ house. According to the Plaintiff’s recollection, Mr Currie was a coppersmith and was in regular employment. That he was a coppersmith is confirmed by the terms of his later marriage certificate. 8 In 1951, the Plaintiff’s mother and Mr Currie purchased vacant land at Melba Road, Woy Woy, for the purpose of building a house. The land was purchased in the names of Alice and John Currie, although the Plaintiff’s mother was not yet married to Mr Currie. 9 In about 1952 or 1953, the grandparents, the Plaintiff’s mother, Mr Currie and the two children moved to a house which had been built by the grandparents in Lagoon Street, Ettalong. 10 On 9 May 1953, the Plaintiff’s mother married Mr Currie. The marriage certificate shows that both the Plaintiff’s mother and Mr Currie were then living at the Lagoon Street house. On 15 February 1954, Stephen, the first child of that marriage, was born. His birth certificate shows that by the time of his birth, the Plaintiff’s mother, Mr Currie and the children had moved from the grandparents’ house in Lagoon Street to the house in Melba Road, Woy Woy. 11 It is clear, therefore, that the Plaintiff’s mother, the Plaintiff and her brother lived in the grandparents’ house at Leichhardt and then at Lagoon Street, Ettalong, for about six years, that is, from about some time in 1948 to early 1954 at the latest. The Plaintiff would have been about two years old when she moved into the grandparents’ home at Leichhardt and seven years old when she moved out of the Ettalong house. 12 The Plaintiff says that during this time the grandparents provided support to her mother and to her children. She is, of course, unable to give this evidence from her own knowledge and observation as she was very young at the time. She relies upon a statement by her mother, unattributed in time, to the following effect:
“I don’t know what we would have done without your grandparents’ help, we didn’t have any money of our own, your father had just abandoned us.”
13    The statement that “your father had just abandoned us” is ambiguous. “Just” could mean “recently”, as in “your father had recently abandoned us”, or it could mean “simply”, as in “your father had simply abandoned us”. Without knowing the context in which the statement was made, it is impossible to resolve the ambiguity. If the statement is to be understood as meaning “your father had recently abandoned us”, then it is capable of suggesting that the help provided by the grandparents was provided only during a time shortly after the father’s departure. 14    The Plaintiff has given evidence that the Deceased gave her coins from time to time during her childhood. The circumstances and character of these gifts emerged from the evidence of the Defendant, which I accept. The Defendant says that the Deceased, who was overseas for long periods, was in the habit on his return of giving his grandchildren the small change which he had saved while he was away. These gifts amounted only to a few dollars and were doubtless intended to be used for the purchase of lollies and other little treats. 15    As I have said, it appears that the Plaintiff’s mother and Mr Currie began living in a de facto relationship at the Leichhardt house in 1949. By 1951 their relationship was secure enough for them to buy land in both their names and to call themselves married. It seems that by that time Mr Currie was quite prepared to apply his own financial resources to the welfare of the Plaintiff’s mother and her children. In those circumstances, it is possible that Mr Currie made some financial contribution to the support of the Plaintiff’s mother and her children from the time that they first established their de facto relationship in 1949. The evidence suggests that the Plaintiff’s mother, who was a dressmaker, was able to find work from time to time during this period. There is no reliable evidence that, apart from providing accommodation, the grandparents made any regular contribution to the support of the Plaintiff’s mother and her children after the time that the de facto relationship with Mr Currie commenced. 16    The Plaintiff asserts in paragraph 6 of her affidavit sworn 15 August 2003:
“We were financially dependent upon my grandparents from in or about 1948 when we continued to reside with my grandparents and my grandparents continued to provide financial support for myself and my brother Paul, as well as my mother, even though she had married John Currie, until in or about 1953.”

There are similar general statements elsewhere in the Plaintiff’s affidavit evidence.

17    Bearing in mind that this evidence is uncorroborated conclusion, unsupported by specific evidence, and recording no more than what must be regarded as the impressions of a child between the ages of two and seven years, I am unable to find with any degree of satisfaction what, if any, financial support was given by the grandparents to the Plaintiff’s mother and her children after the de facto relationship with John Currie commenced in 1949. 18    The Plaintiff, her brother, her mother, Mr Currie and the children born of that marriage between Mr Currie and the Plaintiff’s mother lived continuously in the house in Melba Road, Woy Woy, from early 1954 onwards. The Plaintiff says, and I accept, that she did not like Mr Currie and that there was friction between them. She says, and I accept, that she would often visit her grandparents’ house at weekends and during the school holidays and she would often stay at the house overnight on those occasions. She says, in addition, that she spent a lot of her school holidays with her grandfather at the Ettalong house and that at these times two of her cousins would also be staying there and “we would have a great, wonderful family life together” . 19    One of the cousins, Mrs Herring, has been called to give evidence. She says that she has no recollection of the Plaintiff staying at the grandparents’ house as the Plaintiff describes. Mrs Herring has no financial interest in these proceedings. I formed the view that she was endeavouring to give her evidence accurately and honestly to the best of her recollection. I do not accept that the Plaintiff stayed as often at the grandparents’ home during the school holidays as she asserts. I found that I could not place unqualified reliance upon the Plaintiff’s evidence. She gave inaccurate evidence in a number of respects, such as when she asserted wrongly that she had stayed at her grandparents’ home for a month in March 2000, and that she was living at the Lagoon Street house until she completed her primary schooling. 20    I am not satisfied by the evidence that the Plaintiff could properly be described as a member of the grandparents’ household from the time that she and her mother moved into the house at Melba Road, Woy Woy, in early 1954. 21    The Plaintiff left school in about late 1960 when she was fourteen and a half years of age and she went to work to assist the family financially. In 1966, at the age of seventeen years, she left home and went to Sydney to work and live. 22    There is no reliable evidence that the grandparents gave the Plaintiff any regular or significant financial support from 1954 until she left home to go to Sydney in 1966. After the Plaintiff left home, the Deceased provided a guarantee for the purpose of enabling her to purchase a car. That seems to have been the only financial assistance provided by the Deceased after the Plaintiff left home at the age of seventeen. The amount of the loan was apparently $6,000, which was, no doubt, a considerable sum of money at that time. However, there is no evidence of any other financial assistance provided by the Deceased to the Plaintiff at any time after she left home. 23    The Plaintiff has worked in a variety of jobs since she moved to Sydney. In 1976 she married but she separated from her husband after six months and was divorced in 1980. 24    In 1978, the Plaintiff moved to Melbourne and lived and worked there until about 1990. In 1992 she went to Italy and lived there for about a year. During that time she married Carlo Tolmei. They returned to Australia in 1993. Shortly thereafter, Mr Tolmei became ill and went back to Italy. The Plaintiff has had no contact with him since then. 25    Between 1993 and 1995 the Plaintiff lived and worked in Sydney. In 1995 she moved to Queensland. In 1996 she returned to Sydney and lived there until 1999, when she went to live in Broome. She has only recently returned to live in Sydney. 26    I accept that between 1966 and the Deceased’s death the Plaintiff visited the grandparents’ home on a number of occasions. The frequency of these occasions is in dispute. On the whole, I am inclined to believe that the visits were not as frequent as the Plaintiff suggests, but what is clear is that, while the Plaintiff stayed in the grandparents’ home overnight when she visited and was doubtless provided with hospitality, in no sense could she be described as a member of the Deceased’s household or dependant upon the Deceased during these visits. 27    Before I consider any other issues in the case, I must consider whether, on these facts, the Plaintiff crosses the thresholds for entitlement to make an application under the Family Provision Act . 28    The Plaintiff must first establish that she is “an eligible person” within the meaning of that phrase in s.6 of the Act. Mr Dupree, who appears for the Plaintiff, says that the Plaintiff qualifies under paragraph (d) of the definition because she was, at a particular time, wholly or partly dependant upon the Deceased and she was at that time and at other times a member of the Deceased’s household. 29 Mr Sharpe, who appears for the Defendant, submits that during the time that the Plaintiff lived in the grandparents’ house she was wholly dependant on her mother and was not dependant at all on the Deceased. 30 I am satisfied that the grandparents provided accommodation to the Plaintiff, her mother and her brother from 1948 to early 1954, and that the Plaintiff may properly be described as a member of the Deceased’s household during that time. I am satisfied on the probabilities that the Deceased provided financial support for the Plaintiff, her mother and her brother, for some time immediately following the departure of the Plaintiff’s father, and that during that period the Plaintiff was either wholly or partly dependant on the Deceased. That is because the Plaintiff’s mother, although she had an occupation as a dressmaker, had two very young children and she was very probably unable to derive any substantial income to provide for herself and her children from her own endeavours. The only breadwinner in the house at that stage was the Deceased. 31 However, the evidence does not satisfy me as to what was the position from the time of the mother’s de facto relationship with Mr Currie in 1949 and onwards. For all one knows, Mr Currie may have assumed the responsibility of providing not only food and clothing for the Plaintiff’s mother and her children but also for making some payment for accommodation in the grandparents’ house. The fact that Mr Currie bought land in the names of himself and the Plaintiff’s mother in 1951 suggests that he had accepted responsibility for the welfare of the Plaintiff’s mother and her children before that time. 32 I accept that the Plaintiff was on affectionate terms with the Deceased as a child and that as an adult she regarded him fondly. But emotional dependency – even if it had been established by the Plaintiff – is not dependency for the purposes of the Family Provision Act : Benney v Jones (1991) 23 NSWLR 559, at 560. 33 A finding that for some time in 1948 to some time in 1949 the Plaintiff was wholly or partly dependant on the Deceased and was during that time a member of the Deceased’s household satisfies the requirements of paragraph (d) of the definition of eligible person. Accordingly, I find that the Plaintiff is an eligible person entitled to make an application under the Act. 34 Section 9(1) of the Act requires that where a person qualifies as an eligible person under paragraph (d) of the definition, the Court “shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of an application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors” . 35    The Plaintiff, of course, bears the onus of demonstrating that the making of an application is warranted: Benney v Jones . 36    In the present case, I have regard to the following factors:


– the evidence establishes that the Plaintiff was financially dependant on the Deceased either wholly or partly for some period of time, possibly not more than a year, i.e. between 1948 and 1949;

– the Plaintiff was a member of the Deceased’s household for about six years between 1948 and 1954 in the sense that she lived in the Deceased’s home, but the person who was primarily responsible for her wellbeing during that time was her mother, not the Deceased, because the Deceased, a merchant seaman, was away from home for long periods of time;

– from 1954 onwards, i.e. from about the age of seven years, the Plaintiff was not a member of the Deceased’s household nor does the evidence establish that she was dependant on him, financially or otherwise;

– the Plaintiff was a frequent visitor to the Deceased’s home as a child and an occasional visitor as an adult;

– the Plaintiff did not at any time undertake any responsibility for the care or wellbeing of the Deceased;

– the Deceased’s daughter and the Defendant, who are the beneficiaries under his Will, undertook the responsibility for the care and welfare of the Deceased in his later years.

37    Having regard to those factors, I am not satisfied that the Plaintiff has shown that she would be generally regarded as a natural object of testamentary recognition by the Deceased: Re Fulop (1987) 8 NSWLR 679, at 681. 38 In that circumstance, in compliance with s.9(1) of the Act, I must refuse to proceed with determination of the Plaintiff’s application. 39 Accordingly, the Plaintiff’s Summons is dismissed. The Plaintiff is to pay the Defendant’s costs.
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Last Modified: 04/14/2004