Papadopoulos v Papadopoulos

[2003] NSWSC 960

CITATION:	Papadopoulos v Papadopoulos [2003] NSWSC 960
HEARING DATE(S):	22/10/03
JUDGMENT DATE:	28 October 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	(1) I extend time for making the application up to and including 19 November 2002.; (2) That in lieu ofthe provisions in clause 3 of the will the plaintiff receive a bequest of the deceased's in terest as tenant in common in the matrimonial home at 12 Piper Street, Argenton together with any furniture contained therein absolutely.; (3) Subject to submissions, the first defendant's costs on an indemnity basis and the plaintiff's costs on a party and party basis be paid or retained out of the estate of the deceased.; (4) I make no order as to the second defendant's costs.
CATCHWORDS:	Family Provision - Widower left a life estate in a half share of matrimonial home - Small estate - Widower given absolute interest
PARTIES :	Ilias Papadopoulos v Doris Papadopoulos and anor
FILE NUMBER(S):	SC 5559/2002
COUNSEL:	Mr L. Ellison for plaintiff Mr G. Graham for 2nd defendant
SOLICITORS:	Harvey Law Firm for plaintiff John A.Ticehurst & Co for 2nd defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Tuesday 28 October 2003

5559/2002 ILIAS PAPADOPOULOS v DORIS PAPADOPOULOS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Germania Papadopoulos who died on 4 July 1997. Her widower the plaintiff, her two daughters and several grandchildren survived the deceased.

The will of the deceased

2 The deceased made her last will on 9 August 1991. Under that will she appointed the plaintiff her executor and gave him her interest as tenant in common in the matrimonial home at 12 Piper Street, Argenton together with the furniture upon trust for the plaintiff for life with remainder in three separate shares. A one third share was to be held for her three grandchildren, Leo Papadopoulos, Tanya Papadopoulos and Sophia Papadopoulos. Another share was to be held for her daughter, Irene Soklaridis who is the second defendant in the proceedings. The third share was to be held for her daughter, Maria Petrou. That daughter died after the deceased and accordingly that share passed in accordance with her will, if any, or to those entitled on intestacy. The first defendant is the executrix appointed under the will and is the widow of the plaintiff’s son. She has appeared in person in the proceedings.

The estate of the deceased

3 The only asset in the estate appears to be a half share in the matrimonial home. That has recently been valued by the plaintiff’s valuer at $175,000 and by the defendant’s valuer at $210,000. There was no cross examination of the valuers, quite properly given the size of the estate, and accordingly, a half share is worth between $87,500 and $105,000. The precise amount is not critical to a resolution of the matter. There are debts in the estate in respect of the funeral and masonry in the sum of $12,300. The parties have obviously incurred costs in the proceedings. The plaintiff’s are $19,462.50 and the second defendants are $13,666.

Family history

4 The plaintiff was born in Greece on 6 August 1913 and is 90 years of age. He first married in 1930 when he was 17 years to Germania Papadopoulos (not the deceased but a person of the same name). There were four children of that marriage, three of whom died without issue and one of whom came to Australia and died aged 52 years. The first wife of the deceased died in 1940.

5 The plaintiff’s son, Adreas Papadopoulos, married and had three children they being the three beneficiaries who take a one third share of the estate between them.

6 The plaintiff met the deceased and they were married in 1953 when the plaintiff was 40 years of age. The deceased was at that time a widow and she had two daughters by her first marriage they being Maria who died in 1999 and the second defendant Irene Soklaridis who is now aged 60 years of age.

7 Maria and Irene immigrated to Australia but Maria returned to Greece and died there in 1999.

8 The deceased and the plaintiff bought their home at 12 Piper Street, Argenton in 1972 as joint tenants. They lived there for their married life, which, according to the plaintiff, was a happy marriage of some 44 years. The deceased apparently did not work but maintained the home.

9 There is evidence of only one disagreement between the deceased and the plaintiff and that related to their wills and the ownership of the home. In 1980 there was an argument between them as to whether the deceased should leave her share of the house to her family or as the plaintiff wanted to his family. Apparently the deceased obtained some legal advice and this led to a severing of the joint tenancy in 1983 so that the home could be held as tenants in common. This enabled the deceased to leave her share as she did. The second defendant submitted that the court should respect this decision of the deceased and the plaintiff.

Extension of time

10 The summons in this matter was filed on 19 November 2002 and, accordingly, is out of time. Although the first defendant consents to an extension of time the second defendant does not consent. It is thus necessary for the court to consider section 16 of the Family Provision Act, which allows an application to be made notwithstanding it, is out of time. There are a number of cases that refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VLR 212 the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

11 In several cases Mr Justice Young has dealt with the principles governing application to extend time under this Act. In Massie v Laundry (unreported, 7 February 1986) he indicated that the factors which one looks at include the following:-

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?

12 He also accepts a view, which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986), that there is no purpose in extending the time in respect of a claim which must fail. In Phillips v Quinton (unreported, 31 March 1988) Powell J when considering the matter at the substantive hearing, leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported, 8 September 1989).

13 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension
of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

14 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted he parties’ approach of looking at the strength of the plaintiff’s case.

15 The plaintiff had originally had solicitors who acted for him and also for his wife and they drew the will of the deceased. He had no knowledge of the Family Provision Act and apparently consulted the solicitors shortly after the deceased died who advised him not to obtain probate because of costs. Having received advice as a result of his grandson taking him to see a new solicitor, probate was applied for and obtained on 11 July 2002. He says that at the time he was given advice about the ability to bring proceedings. When that was is not clear but it was probably prior to 18 July 2001. He says that the proceedings were commenced once evidence was obtained as to the death of the deceased’s sister Maria. That appears to have occurred in August 2002. These proceedings were commenced on 19 November 2002. There was no cross examination to explore the extent of the delays. I am satisfied that there is an adequate explanation for the delay before advice was given and although the explanation for the remaining period is somewhat skimpy as there is no prejudice to any beneficiary or unconscionable conduct I propose to extend time.

The plaintiff’s eligibility

16 The plaintiff is the widower of the deceased and, accordingly, is an eligible person.

17 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation

18 The plaintiff is 89 years of age and lives in the estate property. Apart from his half share in the realty he has some $5,760 in the bank and a small amount of personal effects and furniture. He receives an age pension of $448 per fortnight from which he meets his expenses.

19 The plaintiff is a person who has a history of coronary artery disease and other heart problems. At present he maintains his position living at home but that is with the assistance of his family.

20 It is necessary to see how the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. What is primarily advanced is that the plaintiff has the need to acquire other accommodation. He is close to needing some hostel or self care unit for his accommodation although at the moment he is still able to live in his home with help from his family who live nearby. He originally gave evidence of the costs associated with Anglicare Hostels or self care units. At the moment he has not been assessed as suitable for either of these types of accommodation and there is no information on when he would be able to enter such accommodation. Having regard to the desire to be closer to the first defendant and his grandson the plaintiff now wishes to sell the house and purchase a unit close to his grandson who assists with his care. The grandson, Leo, has enquired as to the price of units and if his grandfather has a shortfall he would be happy to fund the shortfall cost on the basis that his grandfather would be the absolute owner of his share and the grandson would own his share of the unit.

21 It is also necessary to consider the situation of others having a claim on the bounty of the deceased. In this case the first group of people are the three grandchildren who a take a one third share. Each of those grandchildren have sworn affidavits in which they depose as to their knowledge of their entitlement and they all state that they would wish their grandfather, the plaintiff, to have the whole of their interest.

22 Another person having a claim on the bounty of the deceased is the second plaintiff, Irene Soklaridis, the second defendant. She has filed no evidence on her financial situation and, accordingly, the Court can take it that she does not wish the Court to take into account her financial situation in considering the plaintiff’s application. She gave evidence of some history but her primary interest was to put forward the evidence about the severance of the joint tenancy and the events surrounding that matter.

23 As the sister Maria has died she is no longer an eligible person who the court has to consider under s 20 of the act. However those who take her estate would be people whose situation the court would consider on deciding the application. There is no evidence of whether she left a will and who is entitled to her estate. Her husband and two sons who still live in Greece survived her. The husband is retired and lives in a two-bedroom house, which he shares with his unmarried son. His other son is married with two small children and like his brother only has limited summer employment.

Consideration of the application

24 The plaintiff is the widower of the deceased. They had a long and happy marriage for 44 years and during most of this time the plaintiff worked and the deceased cared for him at home. They did not have children of their own. Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Golosky v Golosky (unreported, 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott (unreported, 18 May 1984) which was approved by the Court of Appeal on 24 April 1986. There his Honour said,

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

25 Having regard to the circumstances of the plaintiff this usual provision, which is often applied for widows, would probably be appropriate on this occasion even though the plaintiff is a widower. The estate of course is not sufficient to allow for such a provision.

26 The plaintiff was left a life interest in the estate realty. In the 1970s and 1980s there are a number of decisions of single Judges of this Court where they have held that a life interest with particular attributes was appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd , Holland J unreported, 18 December 1979; Banks v Hourigan , Waddell CJ in Eq, unreported, 2 March 1989; Cameron v Hills , Needham J, unreported, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 the Court said:-

"A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy."

27 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J in White v Barron at pp 438-440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application.

28 By the late 1980s other Judges in this Division were taking a slightly different view. For instance, in Court v Hunt 14 September 1987, unreported, Young J said, at 2:-

"Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge."

29 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution.

30 After talking about the evidence necessary, his Honour went on to say, at 3:-

In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non- capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow."

31 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky v Golosky , 5 October 1993, unreported, the Court, at para 16ff, summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:-

"In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576.

(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse ( or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70.

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA.

(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant ; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop (deceased) (1987) 8 NSWLR 679 (SC); Churton v Christian & Ors (1988) 13 NSWLR 241 (CA) 252."

32 When talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott (unreported, 29 April 1986) such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased.

33 In Permanent Trustee v Fraser 36 NSWLR 24 at p 47, Sheller JA had the following to say:-

"Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security."

34 In Salmon v Blackford (unreported, 18 February 1997) the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:-

"The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.

The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty."

35 This seems to indicate a different approach to that referred to by the High Court in White v Barron.

36 As I have pointed out the case was originally put that the plaintiff wished to obtain some accommodation in the Anglican Care system. This led to the foundation of a submission by the defendants that the making of an order would not assist the plaintiff in any way if he went into that area of accommodation. This is because the system requires a payment of a bond to be held by the organisation. That bond is measured by the assets held by the applicant. In other words it is means tested. With assets up to $132,000 the amount of the bond is amount of the assets less the sum of $28,500. Where the assets are between $132,001 and $178,152 the bond is $103,500. Between $178,153 and $213,501 the accommodation bond will be $149,000.

37 It can be seen from these figures that the ownership of half the property which the plaintiff already has would mean that his share, except the $28,500, would be used in the bond. If he received any further award as a result of this judgment then he would most likely have to pay most of that award for an accommodation bond. It was said that in these circumstances there was absolutely no utility in making an order. The problem is that it is not at all certain that the plaintiff will take up this accommodation.

38 As I have already pointed out there is no information as to when the accommodation would become available and, indeed, the plaintiff has not been assessed as being suitable for that form of accommodation. I have mentioned his desire to buy a unit near his grandson and it turns out that the units that were referred to are in fact very close to the grandson’s home. At this time there is not a unit for sale but they are apparently a block of units which were built five or six years ago and they sell for $250,000 for a one bedroom unit. Although it also is a proposal it cannot go ahead at this time.

39 Perhaps what this difficulty in the evidence emphasises is that the plaintiff needs flexibility. He is ninety years of age and has another four years to live based on the Life Tables. It may be that when the time comes to move that he may wish to move to some other organisation and further funds would be necessary. Alternatively it may be that a unit close to his family will become available and he could move there.

40 In the circumstances of the present case where there has been such a long relationship with the plaintiff contributing to the property and where the plaintiff is clearly in need of funds in order to provide proper accommodation in his advancing age, it is necessary that he have the whole of the estate. I appreciate the case put forward by the second defendant but the obligation to provide is more important and in a small estate, overrides the desire of the deceased to provide for others. I also regard the plaintiff’s claim as superior to any claim on the testator’s bounty by the survivors of the daughter, Maria.

41 The orders I make are as follows:-

(1) I extend the time for making the application up to and including 19 November 2002.
(2) That in lieu of the provisions in clause 3 of the will the plaintiff receive a bequest of the deceased’s interest as tenant in common in the matrimonial home at 12 Piper Street, Argenton together with any furniture contained therein absolutely.
(3) Subject to submissions, the first defendant’s costs on an indemnity basis and the plaintiff’s costs on a party and party basis be paid or retained out the estate of the deceased.
(4) I make no order as to the second defendant’s costs.

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Last Modified: 10/30/2003