Nelson v Brennan

[2002] NSWSC 979

Reported Decision: (2003) DFC 95-265

New South Wales

Supreme Court

CITATION:	Nelson v Brennan [2002] NSWSC 979
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1318 of 2001
HEARING DATE(S):	16, 17 July 2002
JUDGMENT DATE:	21 October 2002
PARTIES :	Ann Maree Nelson (Plaintiff) Janette Brennan (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	M. Bridger (Plaintiff) R. Maurice (Defendant)
SOLICITORS:	Bilbie Dan Solicitors (Plaintiff) Attwaters Solicitors (Defendant)
CATCHWORDS:	Succession - Family provision - Whether Plaintiff and Deceased were in a de facto relationship - Whether Plaintiff has been left without adequate provision for her maintenance - Financial and material circumstances of Plaintiff - Competing claims - Claim by Plaintiff's daughter has been resolved by consent orders - Those orders do not override claim of Plaintiff - Nature of provision sought by Plaintiff - Asserted need to purhcase a residence - Plaintiff has for many years lived in rented accommodation - Plaintiff and Deceased did not propose to purchase a residence - Plaintiff is secure in her present accommodation - Plaintiff is entitled to receive a fund to upgrade her lifestyle and provide for contingencies.
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454 Singer v Berghouse (1994) 181 CLR 201
DECISION:	See paragraph 56.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master McLaughlin

Monday, 21 October 2002

1318/01 ANN MAREE NELSON -V- JANETTE BRENNAN

JUDGMENT

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

2 By summons filed on 6 February 2001 the Plaintiff Ann Maree Nelson claims an order for provision for her maintenance and advancement in life out of the estate of the late John William Sansom (to whom I shall refer as “the Deceased”).

3 The Deceased died on 15 December 1999, aged 57. He left a will dated 28 June 1994, probate whereof was on 23 June 2000 granted to Janette Brennan, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased gave his entire estate, after payment of debts, funeral, testamentary and administration expenses,

TO DIVIDE the balance of such net proceeds equally between the following persons, providing they survive me and attain the age of eighteen years:

(i) The children of my sister JANETTE BRENNAN;

(ii) The children of my sister KAY TURNER ;

(iii) The child BRIAN JOSEPH AHKIN ; and

(iv) My child KRISTY LEE MEAKER.

5 The assets of the estate, as disclosed in the Inventory of Property, total about $333,300. The significant assets were various amounts by way of annual leave, sick leave and long service leave payable by the Deceased’s employer, the Newcastle City Council (totalling about $53,000), and superannuation benefits payable by the Local Government Superannuation Scheme (about $266,000).

6 The entirety of the estate of the Deceased has now been converted into cash, almost all of which is invested with the St. George Bank on a fixed deposit. That amount, together with a small amount held in the trust account of the solicitors for the Defendant, totals $347,407.

7 It will be appreciated that, in approaching the amount available in the estate for distribution, allowance must be made for the costs of the present proceedings. The costs of the Plaintiff are estimated to total $28,500, whilst those of the Defendant as estimated to total $29,500. That is, the total costs of the present proceedings of both parties will total $58,000.

8 It is also relevant to a consideration of the amount available for distribution that one of the beneficiaries named in the will of the Deceased, being the Deceased’s daughter, Kristy Lee Meaker, has herself instituted proceedings under the Family Provision Act. Those proceedings were originally instituted in the District Court of New South Wales at Newcastle, but were subsequently, by order made on 12 July 2001, removed into the Supreme Court (and are now proceedings 5225 of 2001).

9 In those latter proceedings, 5225 of 2001, orders were made by consent immediately before the commencement of the hearing of the present proceedings, 1318 of 2001. The orders which were made in favour of the Plaintiff (styled therein as Kristy Lee Meaker Sansom) provided, substantively, that that Plaintiff should, in lieu of the provision made in her favour by the will of the Deceased, receive a legacy of $130,000.

10 It will be appreciated that that order for provision, which was made by consent, will not have the effect of overriding any order for provision an entitlement to which the Plaintiff in the present proceedings might establish. The benefit proposed for Kristy Lee Meaker Sansom by virtue of those consent orders must be taken into consideration when the Court is considering the claim of the present Plaintiff. However, the orders in proceedings 5225 of 2001 must be treated as being of only provisional effect until the claim of the present Plaintiff is dealt with. If, ultimately, it be held that the present Plaintiff is entitled to a benefit in an amount which, together with the amount of $130,000 proposed for the Plaintiff Kristy Lee Meaker Sansom, exceeds the funds available for distribution in the estate, then it would not necessarily follow that the Plaintiff in proceedings 5225 of 2001 would be entitled to receive the entirety of the $130,000, and that the present Plaintiff would only be entitled to receive something less than the amount of provision an entitlement to which she might otherwise have established. If the amount available for distribution were not sufficient to meet both orders for provision, then the consequence would be that each of the two proposed legacies would be reduced pro-rata to the extent necessary. That would be a matter for the Defendant executor in her administration of the estate. (It will be appreciated that any such order for provision takes effect as if the provision had been made in a codicil to the will of the testator: section 14 of the Family Provision Act.)

11 It is also relevant, in regard to the claim of the Plaintiff Kristy Lee Meaker Sansom, that it is not entirely clear from the wording of clause 3(c) of the will whether it was intended that all the persons named in each of the four categories identified in that subclause should share the residue per capita, or whether the person or persons named in each of the four categories should take one fourth of the residue of the estate. That question, in the absence of agreement among the persons affected, may need to be determined in a construction suit.

12 In any event, no provision was made by the will for the present Plaintiff Ann Maree Nelson. That fact is hardly surprising, since at the time when he made the will on 28 June 1994 the Deceased was not acquainted with the Plaintiff.

13 It was the assertion of the Plaintiff that she was the de facto spouse of the Deceased at the time of his death.

14 The Defendant disputed that assertion on the part of the Plaintiff, and denied that such a relationship between the Plaintiff and the Deceased obtained at the time of the death of the Deceased. However, the Defendant did not dispute that the Plaintiff was an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that the Plaintiff was a member of the same household as the Deceased and was partly dependent upon the Deceased.

15 Nevertheless, it is necessary that at the outset the Court should determine whether or not the Plaintiff was the de facto spouse of the Deceased at the time of his death.

16 I have had the benefit of receiving from Counsel for the respective parties written outlines of submissions, together with chronologies. Those documents will be retained in the Court file.

17 By section 6(1) of the Family Provision Act “domestic relationship” (that phrase encompassing a de facto relationship) has in that statute the same meaning as in the Property (Relationships) Act 1984.

18 When significant amendments (including the title of the Act) were in 1999 made to the De Facto Relationships Act by the Property (Relationships) Legislation Amendment Act 1999 a new definition of de facto relationship was inserted in the legislation. For the previous definition (contained in section 3(1) there is now set forth a definition in section 4(1) as follows:

For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

19 Subsection (2) of section 4 provides:

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant to a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

20 It is interesting the observe that the foregoing nine matters, which were part of the new section 4 inserted in the Act by the amending legislation of 1999, reflect (albeit not in precisely identical words) the ten factors referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 at 459.

21 Subsection (3) of section 4 provides,

No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

22 The Plaintiff, who was born on 12 July 1949 (and is presently aged fifty-three) met the Deceased in mid-1995. At that time the Plaintiff was residing in Housing Commission accommodation at 13 Cobby Street, Shortland (where she had been living for the preceding three years; before that she had also been residing in Housing Commission accommodation). The Deceased at that time was living in rented accommodation in a flat at 1/29 Nelson Street, Newcastle.

23 Within three weeks of their meeting, the Deceased, whilst retaining tenancy of his flat at Nelson Street, in effect moved into residence with the Plaintiff in her house at 13 Cobby Street, in August 1995. Most of his clothes were moved into that house. It was the practice of the Deceased to spend every night of the week at the Plaintiff’s residence. They shared a bedroom and a bed, and participated in a sexual relationship. On 18 August 1997 the Plaintiff and the Deceased became engaged to be married. They appointed 7 August 1999 for their wedding, at the New Lambton Baptist Church in Newcastle, and afterwards at 95 McNaughton Avenue, Marylands, and sent out printed invitations for that occasion. They received pre-marital counselling from the Reverend Dennis Alfred Carter, the Minister of the Baptist Church at New Lambton, where both the Plaintiff and the Deceased were attenders on a regular basis.

24 However, after sending out invitations to their wedding the Plaintiff and the Deceased decided that the costs associated with a wedding of the size and nature which they desired were beyond their means at that time; therefore they decided to postpone the wedding. The Deceased died suddenly four months after the date originally appointed for the wedding, and before any fresh arrangements had been made for their nuptials. The death of the Deceased occurred at the residence of the Plaintiff.

25 Evidence was given by various kinsfolk and other persons acquainted with the Deceased, with a view to attempting to establish that the Plaintiff was not the de facto spouse of the Deceased. The furthest that any of that evidence went was that the Deceased did not reveal to all his friends and relatives that he was living in a de facto relationship with the Plaintiff.

26 There was evidence that the Deceased stated to various acquaintances that he was retaining tenancy of his Nelson Street flat because he did not wish his status as de facto partner of the Deceased to be publicly revealed, since it would affect the Social Security benefits which the Plaintiff was receiving. However, the Deceased had the gas and telephone services disconnected from the Nelson Street premises. The Plaintiff admitted under cross-examination that she was aware that she had an obligation to inform Centrelink whether or not she was in a de facto relationship and that she did not so inform Centrelink because she did not want to jeopardise the continuation of her pension. Similarly, she was aware of an obligation to inform the Housing Commission whether there was anyone else living with her in her Housing Commission accommodation and she did not do so.

27 The foregoing conduct on the part of the Plaintiff reflects no credit upon her. Nevertheless, it is not determinative of whether or not she and the Deceased were living in a de facto relationship.

28 Of the matters set forth in section 4(2) of the Property (Relationships) Act, I have already referred to the short duration of the relationship. However, throughout the period of the relationship the parties shared a common residence. A sexual relationship existed between them. There was a degree of financial dependence between the parties. There was mutual commitment to a shared life, manifested by their engagement to be married and the arrangements made for the wedding. Similarly there was a sharing of household duties, such as shopping, although the major part of the domestic activities, such as preparation of meals, washing and ironing, was performed by the Plaintiff. Despite the apparent lack of awareness on the part of the kinsfolk of the Deceased, there was a degree of reputation and public aspects in respect to the relationship, and the Plaintiff and the Deceased were to an extent regarded as a couple, especially in the context of social functions associated with the Deceased’s employment as a pool attendant, and functions relating to his twenty-five years’ service for the Newcastle City Council. The Plaintiff and the Deceased went on several holidays together, and they played bingo together three times a week, as well as attending church services together every Sunday.

29 The Plaintiff and the Deceased maintained separate bank accounts during the period of their relationship, in order (according to the Plaintiff) to avoid any effect upon her disability pension. They shared equally the weekly grocery bills and the telephone bill. The Plaintiff paid for the electricity, whilst the Deceased paid for the gas. The Deceased paid for all their social activities and holidays.

30 The evidence of the Plaintiff herself, of her son, and of the Reverend Mr Carter are more than sufficient to satisfy me that the Plaintiff and the Deceased were living in a de facto relationship from mid-1995 until the death of the Deceased in December 1999. But, in any event, there was placed in evidence the death certificate of the Deceased (Exhibit C). The informant in respect to the registration of the death of the Deceased was the Defendant herself, Janette Brennan. The information disclosed in that death certificate includes the fact that at the time of his death the Deceased was in a de facto relationship with Anne Nelson, and that he was aged fifty-three at the commencement of that relationship.

31 I regard the information contained in the death certificate firstly as being virtually conclusive of the status of the Deceased at the time of his death, and, further, as constituting an admission by the Defendant herself in that regard.

32 It follows, therefore, that the Plaintiff is an eligible person within paragraph (a) 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.

33 The Plaintiff had previously been married and was divorced in about 1975. She has three adult children. The Deceased, although he acknowledged Kristy Lee Meaker as his daughter, had never been married. No children were born to the relationship of the Plaintiff and the Deceased.

34 The Plaintiff suffers a degree of intellectual retardation, although she is not a disable person. The Plaintiff is in receipt of a disability pension, in an amount of $213.80 a week. She estimates that her weekly expenses total $205, the most significant of those expenses being rent ($45) and food and household supplies ($70). The Plaintiff’s assets are meagre. They consist only of household contents and personal effects (to which she ascribes a value of $2,500) and moneys in her bank account, which in her affidavit evidence were stated to be not more than $400, although her bank statements reveal, at times, higher amounts. Those assets are hardly any different from the Plaintiff’s assets at the time when she first met the Deceased in mid-1995. At that time the Deceased’s assets appear to have consisted only of a motor vehicle, to which a value of $3,000 is ascribed by the Plaintiff.

35 The Plaintiff suffered from encephalitis as a child. That condition affected the left side of her body, and her left foot was further injured in an accident when she was aged fifteen. She suffers problems with her right hip and left knee, and has difficulty in negotiating the steps in the front and rear of her house. On account of the Plaintiff’s mental and physical disabilities, it is unrealistic to suggest that she would ever be able to engage in remunerative employment.

36 Essentially, the Plaintiff submitted that her need was for alternative accommodation. She placed in evidence extracts from the real estate section of the Newcastle Herald, setting forth details of accommodation which she said would suit her needs and was located in areas of her preference. Those houses had prices ranging between $135,000 and $180,000.

37 In performing the first stage in the two stage exercise identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210, it is necessary to establish first whether, in all the circumstances, the provision (if any) made for the Plaintiff was inadequate for the proper level of maintenance for the Plaintiff, having regard, amongst other matters, to the Plaintiff’s financial position, the size and nature of the estate, and the totality of the relationship between the Deceased and other persons having a legitimate claim upon his bounty.

38 In the instant case, it must be recognised that the de facto relationship between the Plaintiff and the Deceased was of short duration, being only four and a half years. Nevertheless, the evidence discloses that it was a close and loving relationship. There was a considerable degree of commitment between the Plaintiff and the Deceased, manifested by the fact that they became engaged, intended to marry, went so far as to make arrangements for the wedding and for the wedding reception, and took instruction from the Minister of religion who was to perform the marriage ceremony.

39 The Plaintiff leads a modest lifestyle. Her assets are meagre in the extreme. She has no reserves to fall back upon.

40 She has been, as a result of the terms of the will of the Deceased, left without adequate provision for her proper maintenance.

41 It is the desire of the Plaintiff to acquire accommodation of her own. Nevertheless, it will be appreciated that the Plaintiff is secure in her present accommodation, where she has been living for the past ten years, and that she previously also resided in Housing Commission accommodation. The Deceased also was living in rented accommodation at the time of his death. There was no evidence to suggest that upon their marriage the Plaintiff and the Deceased proposed to purchase a residence. Indeed, the financial resources of both the Plaintiff and the Deceased during the lifetime of the Deceased were such that it would not have been possible for them to do so, at least until the deceased retired from employment. It is only in consequence of the superannuation of the Deceased which has come into his estate upon his death and the various amounts payable by his employer at his death that the assets of the estate are considerably more than would probably have been the assets of the Deceased until he retired from employment. There was no evidence as to when he proposed to retire. But it will be appreciated that he was aged only fifty-seven at the time of his death, and there was no suggestion that he did not propose to continue in his employment as a pool attendence at the Wallsend Swimming Pool.

42 In addition to accommodation, the Plaintiff seeks to receive from the estate provision which will enable her to acquire a new motor car (for example a Toyota Corolla, to which she ascribes a price of $20,000), new bedroom furniture and dining room furniture ($2,000), new washing machine and microwave oven ($1,000), sewing table for sewing machine given to the Plaintiff by the Deceased ($500).

43 The claim of the Plaintiff must be viewed in the light of competing claims upon the testamentary bounty of the Deceased.

44 The competing claim of the Plaintiff’s daughter Kristy has been recognised by the consent orders which have been made in her favour, giving to her a legacy in the sum of $130,000. In this regard it must not be overlooked that Kristy was one of the chosen objects of the testamentary beneficence of the Deceased. The Deceased publicly acknowledged that Kristy was his child, describing her as such in his will (although he privately expressed some doubt in this regard). He paid child maintenance for her until she attained the age of eighteen. The Defendant, by those consent orders, has acknowledged that the benefit given to Kristy by the will (be it one fourth of the residue or one eighth of the residue) is such that as a result of that testamentary provision Kristy has been left without adequate provision for her proper maintenance.

45 The evidence in proceedings 5225 of 2001, in which Kristy is the Plaintiff, is sufficient to support an order for provision in favour of Kristy in the sum of $130,000, although it must be recognised that, had that claim by Kristy proceeded to a contested hearing, that claim must have been approached in the light of the competing claim of the present Plaintiff, the de facto widow of the Deceased. It must also be appreciated that that evidence has not been in any way tested in the form of a hearing of Kristy’s claim. I express no view as to whether, if the claim of Kristy had proceeded to a contested hearing, she would have been awarded an amount of $130,000, or some lesser or greater amount. The essential significance to the claim of the present Plaintiff of the proposed legacy in favour of Kristy is the question of whether the residue available for distribution is sufficient to accommodate that proposed legacy in favour of Kristy as well as an order for provision in favour of the present Plaintiff.

46 Evidence has been placed before the Court by the children of the Deceased’s sister Janette Brennan and the children of the Deceased’s sister Kay Turner (all of whom are beneficiaries under the will). That evidence discloses that the Deceased had a good and reasonably close relationship with his various nephews and nieces. However, I do not consider that those persons, although among the chosen objects of the testamentary beneficence of the Deceased, had any claim against the estate which would have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.

47 There remains to be considered the benefit given by the Deceased to Brian Joseph Ahkin. He is the son of a lady with whom the Deceased was in a relationship for a number of years. It clearly emerges that there was a very close and affectionate relationship between the Deceased and Brian Ahkin, who is now aged nineteen. That relationship was in the nature of a father-son relationship, and continued after the Deceased and Brian’s mother ceased to be in a relationship, and to the time of the death of the Deceased a few weeks before Brian’s eighteenth birthday.

48 I have already observed that the precise effect of clause 3(c) of the will is somewhat unclear. That is, the entitlement of Brian thereunder could be regarded as either to one fourth of residue or to one eighth of residue (each of Janette Brennan and Kay Turner having three children).

49 If the amount of the distributable estate be treated as $290,000 (being $347,400, less $57,000, representing costs), and if, for the purposes of this exercise, there be deducted from that amount of $290,000 the full amount of the proposed legacy of $130,000 for the Deceased’s daughter, there would remain only $160,000 in residue. (It is likely that the amount will be somewhat less than $160,000, if the costs of the Defendant executor in proceedings 5225 of 2001 also be paid out the estate; the amount of those costs does not appear from the evidence.) Since any benefit given to the Deceased’s daughter as a result of the proposed settlement of her proceedings by way of the aforesaid legacy is in lieu of the benefit given to her under the will of the Deceased, then the consequence would be that the residue would be divided only amongst the persons in the first three categories set forth in clause 3(c) of the will. That would mean that Brian Ahkin would be entitled either to one third of the remaining $160,000, thus receiving about $53,000, or to one seventh of that amount, thus receiving about $23,000.

50 Beyond the fact that in his affidavit of 27 September 2001 Brian (who was born on 24 February 1983, and is now aged nineteen) is described as a student, the Court has no information concerning the present financial and material circumstances of Brian.

51 Indeed, the Court has no information concerning the financial and material circumstances of any of the beneficiaries named in the will of the Deceased, other than those of the Deceased’s daughter Kristy.

52 I am not satisfied that the Plaintiff has established an entitlement to receive from the estate of the Deceased an amount sufficient to purchase a house. In this regard, I have already observed that the relationship between the Plaintiff and the Deceased was of short duration. More importantly, in my view, is the fact that the Plaintiff has always resided in rented accommodation, and that she is secure in her present accommodation. Apart from the condition of that accommodation (which, according to the Plaintiff, is in need of some enhancement), there appears to be no problem about the Plaintiff continuing to reside in the Cobby Street house.

53 The competing claims upon the testamentary beneficence of the Deceased (in particular, the competing claim of the Deceased’s daughter Kristy, which has been recognised by the Defendant as justifying provision in the amount of $130,000) are not such as would, in my conclusion, have the effect of reducing, let alone extinguishing, the order for provision an entitlement to which I am satisfied that the Plaintiff has otherwise established.

54 I consider that the Plaintiff has established an entitlement to receive from the estate an amount sufficient to enable her to enhance her present very modest lifestyle, and to enable her to acquire the motor car and additional furniture and furnishings to which she refers in her affidavit evidence, as well as to provide her with a fund to meet unexpected contingencies and to enable her, by investment, to increase her present very small income. In all the circumstances, therefore, it seems to me appropriate that the Plaintiff should receive from the estate of the Deceased a legacy in the sum of $100,000.

55 I would here observe that if the Plaintiff receives a legacy in that amount, and if the proposed legacy of $130,000 to Kristy Meaker remains undisturbed, there would remain about $60,000 (perhaps somewhat less) as residue in the estate, to be divided among the other beneficiaries named in clause 3(c) of the will. Of that amount Brian Ahkin would be entitled to receive either one third (being about $20,000) or one seventh (being about $8,600). Similarly, each of the nieces and nephews of the Deceased would retain some benefit under the terms of the will.

56 Accordingly, I make the following orders:

(1). I order that the Plaintiff receive from the estate of the late John William Sansom (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 21 November 2002, and if not so paid to bear interest at Supreme Court rates.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned.

**********

Last Modified: 02/14/2003