CITATION: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
FILE NUMBER(S): 40456/05 40564/05
HEARING DATE(S): 18/10/05
JUDGMENT DATE: 12/12/2005
PARTIES: CA 40456/05 Michael John Palmer (Appellant) Pamella Anne Marea Dolman (Respondent) CA 40564/05 Fiona Ann Dolman (Appellant) Michael John Palmer (Respondent)
COUNSEL: CA 40456/05 I G Harrison SC (Appellant) D E Grieve QC/D M Coulton (Respondent) CA 40564/05 D E Grieve QC/D M Coulton (Appellant) I G Harrison SC (Respondent)
CATCHWORDS: SUCCESSION - no provision made in estate of deceased for first wife - fraud established on part of deceased at time of property settlement in divorce proceedings with first wife - deceased marrying again - relevance of fraud SUCCESSION - no provision made in estate of deceased for daughter - Singer v Berghouse two stage approach applied - consideration of 'the totality of the relationship' in determination of 'jurisdictional question' - relevance of concepts 'moral duty' and 'moral claims' in determining the 'jurisdictional question ' - effect of estrangement between parent and child - parent's lack of generosity in providing financial support to child - Gorton v Parks affirmed. EVIDENCE - standard of proof in civil case where fraud sought to be inferred from circumstantial evidence - Bradshaw v McEwans applied - approach in civil case in the determination as to whether circumstantial evidence leads to the inference of fraud. D
DECISION: (A) As regards the executor's appeal (CA 40456/05) (i) The executor's appeal is dismissed (ii) Mrs Dolman's costs are to be assessed on a party and party basis and the executor's costs on an indemnity basis (iii) The costs so identified are to be paid out of the estate (B) As regards Fiona Dolman's appeal (CA 40564/05) (i) The appeal is upheld (ii) The order made by the Master dismissing her claim and the costs order he made are set aside (iii) Fiona Dolman is to receive a lump sum payment by way of a legacy of $655,000 from the estate (iv) Otherwise the provisions of the will remain unaltered (v) The estate is to pay Fiona Dolman's costs of the hearing before the Master and the costs of her appeal (vi) Fiona Dolman's costs are to be assessed on a party and party basis (vii) The executor's costs are to be paid out of the estate on an indemnity basis (viii) The executor of the estate is to have a certificate under the Suitors' Fund Act 1951 (NSW) if…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Palmer v Dolman [2005] NSWCA 361
Case
[2005] NSWCA 361
Decision Date
CaseChat Overview and Summary
The case of *Palmer v Dolman* concerned appeals by the executor of an estate and by Fiona Dolman, the deceased's daughter, against orders made by a Master regarding provision from the deceased's estate. The deceased had made no provision in his will for his ex-wife, Mrs Dolman, or his daughter, Fiona Dolman. The dispute centred on whether these beneficiaries were entitled to a share of the estate, with the executor arguing against any provision and Mrs Dolman and Fiona Dolman seeking to establish their claims.
The court was required to determine two primary legal issues. Firstly, whether fraud could be established on the part of the deceased at the time of the property settlement with his first wife, Mrs Dolman, and if so, its relevance to the provision from his estate. Secondly, the court had to consider whether Fiona Dolman was entitled to provision from the estate, applying the two-stage approach outlined in *Singer v Berghouse*, which involves assessing the "jurisdictional question" by considering the "totality of the relationship" and the relevance of "moral duty" and "moral claims," even in the context of estrangement and a parent's lack of generosity in financial support.
Regarding the claim by Mrs Dolman, the court considered the evidence surrounding the property settlement and the deceased's subsequent mortgage over the family home. The Master had noted uncertainty regarding the exact date of a significant payment from the deceased to Mrs Dolman, and the deceased's use of a bank loan to partially meet this obligation. The court also addressed the standard of proof for inferring fraud in civil cases, clarifying that it requires circumstances raising a more probable inference in favour of the allegation, rather than excluding all reasonable hypotheses consistent with innocence as in criminal cases, citing *Bradshaw v McEwans Pty Ltd*. The court found that the deceased's actions in relation to the property settlement did not establish fraud.
In relation to Fiona Dolman's claim, the court applied the principles from *Singer v Berghouse* and *Gorton v Parks*. The court found that the deceased's statutory declaration, citing Fiona's lack of contact and interest in his welfare, did not fully reflect the "totality of the relationship." The court determined that Fiona Dolman had established a moral claim on the deceased's estate. Consequently, the executor's appeal was dismissed, and Mrs Dolman's claim for provision was also dismissed. However, Fiona Dolman's appeal was upheld, her claim was not dismissed, and she was awarded a lump sum payment of $655,000 from the estate. Costs orders were made in favour of Mrs Dolman and Fiona Dolman, to be paid out of the estate.
Orders
Orders of the court
(A) As regards the executor's appeal (CA 40456/05) (i) The executor's appeal is dismissed (ii) Mrs Dolman's costs are to be assessed on a party and party basis and the executor's costs on an indemnity basis (iii) The costs so identified are to be paid out of the estate (B) As regards Fiona Dolman's appeal (CA 40564/05) (i) The appeal is upheld (ii) The order made by the Master dismissing her claim and the costs order he made are set aside (iii) Fiona Dolman is to receive a lump sum payment by way of a legacy of $655,000 from the estate (iv) Otherwise the provisions of the will remain unaltered (v) The estate is to pay Fiona Dolman's costs of the hearing before the Master and the costs of her appeal (vi) Fiona Dolman's costs are to be assessed on a party and party basis (vii) The executor's costs are to be paid out of the estate on an indemnity basis (viii) The executor of the estate is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.
Background
Background to the litigation
The deceased made no provision for either Mrs Dolman or Fiona Dolman. He left statutory declarations in which he set out the reasons why he took this course. As regards Fiona Dolman, he said:“I have made no provision in my will for my daughter Fiona Dolman for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital.”As regards Mrs Dolman, he said:“I have made no provision in my will for my ex-wife, Pamella Dolman, for reasons including [that] we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the Family Court of Australia whereby my ex-wife received [an] adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me.”The family background, the divorce and property settlement The deceased was born on 16 December 1931 and Mrs Dolman was born on 22 June 1934. They married on 18 November 1962. In 1967 the deceased acquired, in his name, the home in Drummoyne in which the family was to live for many years and which became the principal asset in his estate. Gregory Dolman was born on 15 June 1963 and Fiona Dolman on 7 December 1971. In April 1984 Gregory Dolman left home. In the middle of that year the deceased and Mrs Dolman separated. The deceased occupied the upstairs section of the house and Mrs Dolman and Fiona Dolman the ground floor. The deceased occasionally came to the ground floor but Fiona Dolman was not allowed upstairs. In 1990, after acrimonious litigation, the deceased and Mrs Dolman were divorced. The litigation continued until March 1991 when they settled their property arrangements. By the settlement, the deceased retained the home at Drummoyne, then valued at $900,000. He agreed to pay $500,000 to his wife and to provide her with a car and certain furniture. Mrs Dolman and Fiona Dolman went to live in a property in Rodd Point which Mrs Dolman purchased with the payments she received from the property settlement. By the settlement the deceased was required to pay Mrs Dolman the $500,000 by way of two instalments, $50,000 in April and $450,000 in July 1991. He paid the $50,000 in March. As regards the balance of $450,000, Mrs Dolman said that she was paid this in July 1991. The Master pointed out, however, that this payment was “not established by production of documents”, thereby implying, I think, that there was some uncertainty as to the date on which the $450,000 was paid. On 9 August 1991 the deceased executed a mortgage over the Drummoyne property in favour of the National Australia Bank. The mortgage was an all moneys mortgage and, as the Master noted, “was stamped for $200,000”. The Master was satisfied that the mortgage established that the deceased borrowed $200,000 from the National Australia Bank which he used in part payment of the $450,000 payable to his wife.
Evidence
Evidence Before The Court
In answering the argument that the deceased could have borrowed the $250,000 from a friend, Mr Grieve submitted:“Mr Palmer [the executor], having been a long-standing friend of the deceased, as a matter of likelihood would have known of that”.There was, however, no evidence that supported this submission (which I do not accept). Moreover, Mr Palmer was not cross-examined as to whether he was sufficiently close to the deceased to have been aware of his financial position at the relevant time and he was not asked whether he questioned the deceased as to where he obtained the $250,000.Mr Grieve submitted that the possibility that the deceased could have obtained the $250,000 from a friend involved mere guesswork. The standard of proof, in a civil case, where fraud is sought to be inferred from circumstantial evidence It was common ground between Mr Grieve and Mr Harrison that the standard of proof to be applied was that expressed by Menzies J in Plomp v R (1963) 110 CLR 234 at 252, namely:“[Whether] there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant.…The customary direction where circumstantial evidence is relied upon to prove guilt, [is] that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw…” Despite the agreement of counsel, however, Plomp was a criminal case and what was there said does not apply to this case. The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is:“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674, at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise …”