Patricia Mary McCormick v Rosheen Mary O'Brien
[2007] NSWSC 131
•27 February 2007
CITATION: Patricia Mary McCormick and Ors -v- Rosheen Mary O'Brien [2007] NSWSC 131 HEARING DATE(S): 19, 23 and 24 October 2006
JUDGMENT DATE :
27 February 2007JURISDICTION: Equity Division JUDGMENT OF: Associate Justice McLaughlin DECISION: 1. I order that the proceedings be dismissed; 2. I order that the Plaintiffs pay the costs of the Defendant on the party and party basis; 3. I order that Defendant be entitled to recoup from the estate of the late Teresa Gerard O’Brien (“the Deceased”) the difference between her costs on the indemnity basis and the amount of the costs which she may recover pursuant to order 2 hereof; 4. The exhibits may be returned CATCHWORDS: Succession. Family Provision. Claims by three adult daughters. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for her proper maintenance. Plaintiffs and Defendant are by will entitled to share residue of estate. Costs of present proceedings will largely exhaust that residue. Competing claim of Defendant. LEGISLATION CITED: Family Provision Act 1982 CASES CITED: Singer v Berghouse (1994) 181 CLR 201 at 208-210
Vigolo v Bostin (2005) 221 CLR 191
Blore v Lang (1960) 104 CLR124 at 137PARTIES: Patricia Mary McCormick (First Plaintiff)
Maree Terese Peden (Second Plaintiff)
Jacqueline Mary Hourigan (Third Plaintiff)
Rosheen Mary O'Brien (Defendant)FILE NUMBER(S): SC 2462 of 2004 COUNSEL: Mr Michael Meek (Plaintiffs)
Mr Martin Gorrick (Defendant)SOLICITORS: Johnson & Sendall (Plaintiffs)
G J Gooden (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ASSOCIATE JUSTICE McLAUGHLIN
Tuesday, 27 February 2007
2462 of 2004 PATRICIA MARY McCORMICK and ORS –v- ROSHEEN MARY O’BRIEN
JUDGMENT
1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.
2 The proceedings were instituted by summons filed on 19 April 2004. The Plaintiffs named in that summons were Patricia Mary McCormick, Maree Terese Peden and Jacqueline Mary Hourigan. The Defendants named in the summons were Patricia Mary McCormick (who, it will be observed, was the First Plaintiff named therein) and Rosheen Mary O’Brien.
3 Subsequently an amended summons was filed on 7 December 2004, naming only one Defendant, Rosheen Mary O’Brien. By that amended summons (and also by the summons as originally filed) the Plaintiffs seek an order that further provision be made for each Plaintiff out of the estate of their late mother Teresa Gerard O’Brien (to whom I shall refer “the Deceased”).
4 The three Plaintiffs and the Defendant are four of the five children of the Deceased. The Deceased died on 13 April 2003, aged 87 (having been born on 9 October 1915). She was a widow at the time of her death, her husband, Michael John O’Brien (whom she had married in 22 April 1942), having died on 26 February 1977.
5 The Deceased left a will dated 28 April 1993, probate whereof was initially granted to Patricia Mary McCormick and Rosheen Mary O’Brien, the executors named therein, on 23 February 2004.
6 In consequence of proceedings 106769 of 2005 in the Probate List, and the judgment delivered by Campbell J on 20 June 2005, that grant of probate was revoked, and a new grant of probate was issued to Rosheen Mary O’Brien as sole executor of the will of the Deceased. It is in consequence of the revocation of the grant originally made to Patricia Mary McCormick (conjointly with Rosheen Mary O’Brien) that the amended summons in the present proceedings was filed, having the effect of reconstituting these proceedings by removing Patricia Mary McCormick as one of the Defendants. In consequence, only Rosheen Mary O’Brien remains as Defendant to the present proceedings.
7 The assets of the estate at the date of the death of the Deceased were as follows:
Property at 67 Monkittee Street, Braidwood $450,000
Vacant land at 69 Monkittee Street, Braidwood $82,000
Furniture $20,900
Personal effects $1,540
Moneys in Commonwealth Bank of Australia,Two coins $1,355
Goulburn Branch $99,497
Total: $658,792
Motorised scooter $3,500
8 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiffs, if successful, will be entitled to their costs out of the estate, whilst the Defendant, irrespective of the outcome of the present proceedings, will be entitled to her costs out of the estate. It is estimated that the costs of the Plaintiffs will total about $55,000, whilst the costs of the Defendant will be in the order of $44,300. In addition, it would appear that there are various other costs of the Defendant for which the estate will be liable. Those costs are administration costs ($6,970), costs in the probate proceedings ($36,935), and maintenance costs ($8,897). However, part of the foregoing costs of the Defendant have already been paid, being, as far as I can gather, the administration costs of $6,970, and part of the costs of the present proceedings, as well as part of the costs of the probate proceedings.
9 In the probate proceedings the present First Plaintiff, Patricia McCormick, was ordered to pay the costs of the present Defendant. Those costs totalled almost $37,000. They were subsequently assessed on a party and party basis at $26,650, and the present Defendant was also awarded the costs of the assessment, in the amount of $940. The costs certificates were filed in the Local Court of New South Wales at the Downing Centre on 30 June 2006, judgment being entered therein in an amount of $27,590 on 25 July 2006. Those costs have not yet been paid by the First Plaintiff
10 The present assets of the estate consist of
- Property at 67 Monkittee Street, Braidwood (to which an estimated value of $400,000 is now attributed)
- Vacant land at 69 Monkittee Street, Braidwood (to which an estimated value of $87,500 is now attributed)
Furniture $20,900
Gold coins $1,355Personal effects $1,540
Moneys held in Commonwealth Bank $3,784
Motorised scooter $3,500
Claim against Patricia Mary McCormick (in
Total: $546,170respect to costs of probate proceedings) $27,590
11 Since 17 September 2006 the property at 67 Monkittee Street Braidwood has been rented by the Defendant at a gross rental of $250 a week. The Defendant has been advised by her solicitors that she may be personally entitled to those rent moneys, which are paid into a separate account in the name of the Defendant with the Bendigo Bank.
12 When account is taken of the outstanding costs of the probate proceedings ($24,130) and the costs of the execution proceedings ($14,763), the estate has a liability for unpaid legal costs in respect to both the probate proceedings and the attempt by the Defendant to recover the costs of those proceedings in a total amount of $38,893.
13 In consequence, if that amount be deducted from the foregoing total value of the assets in an amount of $546,170, it is estimated by the Defendant that the net value of the estate is $507,276.
14 If the totality of the foregoing costs of the Plaintiffs and of the Defendant of the present proceedings also be deducted from the total value of $546,170, the net amount available for distribution is in the order of $400,000 to $409,000.
15 By her will the Deceased gave both the house property at 67 Monkittee Street, Braidwood and the vacant land at 69 Monkittee Street, Braidwood, together with the contents of the house property (such assets having an estimated total value of $552,900), to the Defendant, and left the residue of her estate to be divided among her four daughters.
16 Had the present proceedings not been instituted (and thus had the estate of the Deceased not been liable for the costs of the present proceedings, totalling, in round figures, $100,000) the residue would have been in the order of $100,000, and thus each of the three Plaintiffs and the Defendant would have received about $25,000.
17 It will be apparent, however, that once allowance is made for the totality of the costs of the present proceedings being paid out of the estate of the Deceased, then there will, for practical purposes, be no residue to be distributed among the four daughters. If, however, the Plaintiffs, or some of them be unsuccessful in the present proceedings, then the usual outcome (costs following the event) would result in the unsuccessful Plaintiffs paying the costs of the successful Defendant, with the consequence that each of the three Plaintiffs and the Defendant would be entitled to share in a residuary estate of about $100,000. It will be appreciated, however, that in such latter event each of the three Plaintiffs, or such of the Plaintiffs as be unsuccessful in the proceedings, would be required to pay the costs of the successful Defendant.
18 It will also be appreciated that, until the outcome of the present claim of the Plaintiffs be determined, it is not possible to calculate whether or not there will be any residue available for distribution among the four daughters of the Deceased.
19 It seems to me, however, that it is appropriate that I should proceed to a consideration of the substantive claim of each Plaintiff for provision (presumably, for the maintenance and advancement in life of that Plaintiff, although neither the summons nor the amended summons expressly characterised the nature of the provision claimed) upon the basis that each Plaintiff will not receive any practical benefit out of the estate of her mother.
20 I would, in passing, observe that, whilst the Defendant has the benefit of a costs order in her favour against the first Plaintiff, in consequence of the outcome of the probate proceedings, the likelihood of her being able to recover any of those costs from the first Plaintiff is problematical.
21 At the outset it should be recognised that an order for provision is not made as a reward for good services to a testator. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.
22 Further, it should be emphasised that an applicant must establish her claim upon its own merits. The claim of an applicant cannot be enhanced by proving, if such be the case, that the chosen object of the testamentary beneficence of the Deceased, if herself an applicant for provision, might not have succeeded in her claim on account of, for example, absence of a close relationship with the Deceased. In the instant proceedings the Defendant, the chosen object of the testamentary beneficence of the Deceased, does not need to prove anything. It is for one or more of the Plaintiffs to establish that such Plaintiff is entitled to an order for provision. The establishment of that entitlement must, of course, be approached in the light of the competing claim of the Defendant.
23 I have already observed that the Plaintiff and the Defendants are four of the five children of the Deceased. The remaining child, Terence (who was born on 25 July 1957 and who is the only son, and the youngest child, of the Deceased), inherited from his father in 1977 a historic grazing property known as Mount Elrington (which I gather to be located in the vicinity of Braidwood), which had been in the family for well over a century. Apparently there was some readjustment of that testamentary provision of the Deceased’s husband, when the Deceased, either pursuant to an application made by her under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 or in consequence of a deed of family arrangement, received a right to reside on Mount Elrington, and also received a portion of that property, known as the McIntyre Paddock (or the McIntyre). When the Deceased departed Mount Elrington in about 1984 the house property at 67 Monkittee Street, Braidwood was purchased (apparently, with funds generated from the dissolution of one or both of two farming partnerships). In about 1986 the McIntyre Paddock was sold, and the daughters of the Deceased were reimbursed for the moneys which they had allowed to be used for the purchase of the Monkittee Street property.
24 It would appear that after the death of her husband in February 1977 the Deceased operated a business account in the name PMJR&T (in which, apparently, each of the five children of the Deceased had an interest, although they were not signatories to that account). Apparently in 1979 certain cattle were sold by the Deceased and the proceeds divided equally among her four daughters, Terence at that time receiving cattle instead of money. However, the cash proceeds to which the four daughters were entitled remained in the foregoing business bank account.
25 When in 1983 the Deceased decided to remove to Braidwood, and to purchase the residence and adjoining land at Monkittee Street, it was agreed between her four daughters that the funds held in the foregoing business account would be used by the Deceased as a deposit upon that property. It was only after the sale of the McIntyre Paddock that the four daughters were reimbursed from the moneys in the foregoing business account which had been used for the purchase of the Monkittee Street properties.
26 I shall now proceed to set forth the financial and material circumstances of each Plaintiff.
27 I propose, for convenience and without intending any disrespect, to refer to each of the three Plaintiffs and to the Defendant by their given names.
28 Patricia was born on 24 January 1943, and is presently aged 64. She has been married twice. She and her first husband, Anatoly (known as Allan) Fedorow (whom she had married in 1962), were divorced in March 1972. Patricia has four children from that marriage. She married her second husband, Peter McCormick in 1987. He died suddenly in 2002, after surgery. By her second marriage Patricia has three children.
29 Patricia currently resides on a rural estate, Mirrabooka, at Goulburn. That property is owned by her in her capacity as trustee of the Peter Thomas McCormick Trust, and is held by her on trust for the three children born of her deceased husband. However, she has a right of residence for her life upon that property. Patricia pays rates and maintenance in respect to Mirrabooka. That property is subject to a debt of about $19,500, owing to the Commonwealth Bank. The Bank on 20 September 2004 indicated that it would not at that time pursue payment of the debt. However, the debt remains outstanding.
30 Apart from the Mirrabooka estate, Patricia has the following assets:
House property at 6 Dunlop Street, Hackett $470,000
House property at 46 George Street, Marulan $137,500
Chesterfield, Jerrawa Road, Jerrawa
Farm equipment $3,650
Shares $438
Bank accounts $2,223
Household contents $300
Ford utility motor vehicle $7,000
Livestock and farm animals $7,030
31 The property known as Chesterfield at Jerrawa, although registered in Patricia’s name, is, in effect, held for her daughter Jennifer. That property is subject to a first mortgage to the Canberra Public Service Credit Union, and to enable the purchase to be effected Patricia provided a second mortgage over her property at 6 Dunlop Street, Hackett. The mortgage payments on the Jerrawa property are made by Patricia’s daughter Jennifer, who is separated from her husband and has the custody and maintenance of her two children.
32 The house property at Hackett in the Australian Capital Territory was the family home of Patricia and her first husband from 1965. Since 1984 Patricia’s children, Rae and Jennifer (with her two children), sequentially have resided in that property. Each of Rae and Jennifer has now acquired an independent residence. The Hackett, property, which until after the commencement of the present proceedings was unoccupied, is now rented for $351 a week.
33 The house property at Marulan was inherited by Patricia from her second husband. That property is presently rented for $600 gross a month. She currently owes arrears of rates on that property in an amount of $820.
34 Patricia has the following liabilities,
- Costs owing to Rosheen in respect
Costs in respect to present proceedings $55,000
Personal loan from St. George Bank $25,561
Indebtedness to Commonwealth Bank $19,504
Municipal rates, stockfeed, Goulburn Motors,
Electricity, plumbing and Telstra $5,250
Janeda Pty Limited costs $1,591
Total: $134,497
35 Patricia also has a potential liability in respect to the mortgage over the Hackett property, as well as a potential liability as a guarantor of the mortgage over the Jerrawa property.
36 Patricia is by occupation a primary producer. For the five years from 2001 to 2005 her primary production income averaged $3,300 a year. For the financial year ended 30 June 2005 her taxable income was $1,965.
37 Patricia is employed as a night supervisor at the Marian Residence (also referred to as the Marian College), which is a residence for female students at Trinity Catholic College in Goulburn. In that capacity Patricia normally works four nights a week, from 10pm to 8.30 am. That work is available only during school term and she is not paid for holidays.
38 At the present time Patricia’s weekly income is as follows:
- Exceptional Circumstance Relief Payment $202
Rent, Hackett property $351
Rent, Marulan property $138
Marian Residence wages $189
Total: $880
Patricia occasionally receives some supplementary income from working in a café. She is paid about $14 an hour for working between eight and ten hours a week. However, that is not a permanent arrangement. This work is available to Patricia only when the proprietor of the café, who is a friend, is short staffed. Sometimes Patricia receives no work from this source for weeks at a time. According to Patricia, her hands and back are subject to osteoarthritis and they are detrimentally affected by this work.
39 Patricia gave evidence of her weekly expenses, totalling almost $820.
40 Since the death of her second husband in 2002 Patricia has been conducting upon Mirrabooka a cattle enterprise and two horse studs (being a thoroughbred horse stud and a Shetland pony stud). Patricia has thus far respected the wishes of her deceased husband (who was a veterinarian by profession) that a number of horses not be sold and that those horses be allowed to live out the remainder of their equine lives upon that property. It is the desire of Patricia to maintain the horse studs, with a view ultimately to increasing their productivity and profitability.
41 Patricia suffers from a number of medical problems, including elevated blood pressure, bronchiectasis, osteoarthritis, fibromyalgia, hiatus hernia and reflux. Her arthritic condition mainly affects her hands and low back. For her health problems she takes various medications. Nevertheless, she rejected the suggestion made to her under cross-examination that she would not readily be able to perform the work associated with the cattle and the ponies. Whilst she is unfit for full-time remunerative employment, she said that her work is of a part-time supervisory nature, which she can currently perform.
42 Patricia quantified the following needs, upon which she based her claim for provision,
- Fencing, replacing and repairs $27,200
Weed control $3,000
Plumbing system $1,150
Sewerage system $6,200
Carpet replacement $3,690
New vehicle change over for one tonne utility $33,250
Total: $84,490
43 In addition, according to Patricia, the residence upon Mirrabooka is in need of immediate and substantial repair. It requires replacement of the sewage system, repairs to leaking roof, replacement of carpets, repainting, repairs to hot water system and to oven.
44 Patricia has for some time had ongoing requirements for the care of her eldest daughter Sharon, now aged 43, who has a history of mental and drug dependency problems, and for her son Anthony, now aged 40, both of whom reside with Patricia. In her affidavit of 11 December 2005 Patricia said that she would like to be able to provide some permanent accommodation for Sharon. She said that in Goulburn there were houses available for purchase for about $150,000. With a deposit of $30,000 and first home buyer’s assistance she said that she would like to arrange for Sharon to purchase a small cottage, which would greatly improve Sharon’s quality of life and provide her with some security, as well as giving peace of mind to Patricia herself.
45 Further, Patricia said that she required a buffer for the mortgages on the Hackett property. In respect to each of those mortgages, she said that at the time she committed herself to those mortgages she was of the belief that she would ultimately receive a one quarter share in the estate of the Deceased, and that that belief was based upon promises made to her by the Deceased.
46 Maree was born on 20 January 1946 and is presently aged 60. Having qualified as a nurse, she married her first husband, Reg French, in 1967. They were divorced in March 1975. Two children were born of that marriage, namely Gillian and Paul. Maree subsequently married Robert Peden. There are three children of that marriage, being Bronwyn (aged 28), Angus (aged 26) and Michael (aged 22).
47 Maree has various health problems, which include disabilities to her back and right shoulder, arthritis, a thyroid condition, and problems with her eyes, elevated blood pressure and elevated cholesterol. She takes various medications for her health problems. Her husband is aged 64 and is also in poor health.
48 Maree gave evidence concerning what she said had been her close and affectionate relationship with her mother, and also concerning the many services which she said she had performed during the latter’s lifetime.
49 Maree’s husband resides with her on a rural estate known as Bullamalita, at Goulburn. That estate has an area of between 4,200 and 5,000 hectares, and is owned by either her husband personally or one of two companies in which he has the substantial and controlling interest (being Bullamalita Pastoral Company Pty Limited or Deersbrook Pty Limited). Upon that property are 6,000 sheep and 230 cattle (which I gather to be beneficially owned by Maree’s husband).
50 According to her affidavit evidence, Maree has the following assets:
- Bullamalita Pastoral Company Pty Limited
1 management share $1
484 shares in AMP $4,515
Berrima District Credit Union $1,800
One half share in contents of residence $10,000
51 According to the same source, Maree’s husband has the following assets:
- Bullamalita Pastoral Company Pty Limited
Deersbrook Pty Limited
(net equity) $605,013
Holiday house at Tabourie $395,000
600 shares in AMP $5,598
One half of contents in house property $10,000
Total: $3,552,339
52 Although not referred to in Maree’s affidavit evidence, it emerged under her cross examination and from Exhibit 2 that Maree’s husband also owns in his own name various parcels of land, having a total area of about 305 hectares and a net value of $562,000.
53 Thus the total assets of Maree and her husband have a present value of about $4,130,000. In addition Maree holds a life policy, which, in the event of her death, will pay $30,000 to a beneficiary.
54 Maree has a MasterCard indebtedness (formerly in an amount of $1600, but probably about $1000 at the time of the hearing), which she repays at the rate of $200 a fortnight (whilst continuing to incur further debts upon her MasterCard account).
55 The current balance sheet of the Bullamalita Pastoral Company Pty Limited (of which Maree was a director until 2006) reveals that Maree and her husband are each indebted to that company in amounts totalling $186,822. Maree’s part of that debt is $108,299.
56 Maree and her husband currently draw wages totalling $850 a fortnight from the Bullamalita Pastoral Company. In addition, Maree has an income of $128 a week from the Marian College (also referred to as the Marian Residence), for performing duties of a like nature to those performed by Patricia. In the financial year ended 30 June 2005 Maree’s income was $21,632, whilst that of her husband was $42,587.
57 Financial details concerning the Bullamalita Pastoral Company were placed in evidence, which disclosed an indebtedness to the National Australia Bank of $909,800. The balance sheet of that company for the 2005 financial year (Exhibit C) discloses that the net assets of the Bullamalita Pastoral Company for that year were in the order of $2,536,000.
58 According to Maree, she has immediate pressing needs for dental treatment (costing $11,000) and for the purchase of a Toyota Camry motor car ($43,800). She explained under cross-examination her desire for this model of motor vehicle, upon the ground that it has independent suspension and is sufficiently large to accommodate three children. She expressed a desire to purchase a cottage in Goulburn, in order to make her retiring years financially comfortable and to enable her to care for her daughter Bronwyn (who suffers from diabetes and who has four children of her own). It was the evidence of Maree that such a cottage would cost in the order of $172,000 to $195,000.
59 Jacqueline was born on 8 May 1949, and is now aged 57. She married her present husband, Mark Hourigan, in September 1976. They have three children, William (aged 26), Kelly (aged 24) and Ryan (aged 21).
60 Jacqueline and her husband have the following assets:
- Property at Teaswater $126,900
- House property at Spence, ACT $340,000- $350,000
Contents of house property $30,000
Motor vehicles $24,200
2,254 shares in IAG $12,712
Superannuation of Jacqueline $101,419
Superannuation of Mark $88,025
Life policy $16,408
Moneys in bank account $8,787
Total: $969,951
61 The property called Teaswater was received by Jacqueline from the estate of her late father in 1977. That property, which has an area of 56.65 hectares, is located in the Braidwood district and adjoins Mount Elrington.
62 According to Jacqueline the Deceased in about 1973 or 1974 gave to each of Patricia and Jacqueline a block of land at South Durras, on the South Coast of New South Wales. At the time when those blocks of land were transferred to Jacqueline and Patricia there were outstanding rates owing to the local council. Jacqueline in her evidence said that she paid all the rates outstanding on both properties (since Patricia was at that time experiencing financial difficulties) and that she continued to pay the rates on both properties after her marriage.
63 Jacqueline said that in October 1988, on account of financial exigencies, she sold her property at South Durras for about $33,350. That amount was applied by Jacqueline and her husband towards the payment of outstanding debts, the repayment of a mortgage and the effecting of extensions to their residence. Jacqueline said that she had spoken to her mother on a number of occasions during the twelve months preceding the sale of the South Durras property, informing her that she could not afford to pay the rates or to continue to maintain the property. Jacqueline said that before selling the property she had on several occasions offered to transfer it back to the Deceased.
64 In her primary affidavit, that of 13 July 2004, Jacqueline said that she owned a one-half share in three motor vehicles (presumably, the other half share in those motor vehicles being owned by her husband), having a value of about $10,300. According to her affidavit of 1 May 2005 Jacqueline owns a one-half share in four motor vehicles (presumably the other half share being owned by her husband), having a value of about $15,000. Those motor vehicles include a 2004 Camry motor car (value not quantified) together with a 1983 Toyota motor car which, was purchased for her son Ryan.
65 Jacqueline and her husband have the following liabilities:
- Home loan $19,830
Life insurance premiums $8,390
Credit card indebtedness, $4,494
66 Jacqueline is employed in the Commonwealth Public Service in Canberra. In December 2005 her net income was $37,025 a year. Her gross income has subsequently increased to about $54,000 - $55,000, giving her a net income of about $41,940 to $43,150. However, that level of income may diminish when the extra duties which she is currently performing are no longer required. Jacqueline’s husband is employed as an aluminium fixer, receiving a net income of $35,299 a year. Jacqueline and her husband receive dividends from their shareholding in IAG, in amounts totalling $326 a year.
67 Jacqueline gave evidence of expenses of herself and of her husband, totalling $79,538 a year. Of their three adult children two are still living at home. Jacqueline said that she and her husband give financial assistance to all three of their children. In addition, according to Jacqueline, a small proportion of their motor vehicle expenses relates to their children. According to Jacqueline’s evidence, their expenses exceed their net income, and she and her husband have no capacity to save.
68 Jacqueline has suffered a number of medical problems throughout her life, including the removal of a kidney, various broken bones, concussion. She currently suffers from headaches and stress. She is gluten intolerant (which condition produces skin disorders), arthritic, and has high cholesterol levels.
69 Jacqueline’s husband is now aged about 59, and suffers a medical problem (described as a blood clot condition). Their youngest son is partly dependent upon them.
70 According to Jacqueline, she has the following needs:
- Discharge of home loan $19,830
Payment of life insurance premiums $8,390
Repair and renovation work on residence $44,350
Replacement of truck $28,586
Fencing repairs $718
Bed replacement $4,000
Total: $105,875
71 In her affidavit of 12 December 2005 Jacqueline also included in respect to her needs expenses totalling about $20,000 associated with the wedding of her daughter in September 2006. However, the wedding had been held, and paid for, by the time of the hearing, and it is my understanding that Jacqueline is no longer making any claim in this regard.
72 In the same affidavit she also identified a need for replacement of cracked tiles in the bathroom. Although she was unaware of the eventual cost of this and associated work, she estimated it to be in the amount of $4000. Jacqueline also said that she hoped to use any money she might receive in the present proceedings for the purposes of an overseas holiday.
73 Jacqueline also seeks provision in order to supplement her superannuation.
74 The claims of the Plaintiffs must be approached in the light of the competing claim of Rosheen, who is the chief object of the testamentary beneficence of the Deceased.
75 Rosheen was born on 13 May 1955, and is now aged 51. In April 1975, when she was almost 20, Rosheen, at the request of the Deceased, gave up her career as a track rider at Coffs Harbour, and returned to Mount Elrington to reside with her parents and assist in the conduct of their grazing enterprise upon that property. For that work Rosheen received no wages; however, she was provided with accommodation and board by her parents.
76 After the death of her father Rosheen remained on Mount Elrington with the Deceased until 1984, when she and the Deceased removed to Braidwood. Rosheen did not receive any benefit under the will of her father. However, she did not make any claim against his estate and she supported the claim of her mother, which was ultimately resolved by an agreement within the family, along the lines to which I have earlier made reference. Rosheen continued to reside with the Deceased at 67 Monkittee Street, Braidwood until 1990.
77 Rosheen has a son Curtis, now aged 22, who was born of a relationship with one Max Bayliss.
78 Rosheen subsequently entered into a relationship in 1989 with one Stephen Orford. Two children were born of that relationship, being Hayden, now aged 14, and Stuart, now aged 13. The evidence discloses that Rosheen (and also her three children) had a close and loving relationship with the Deceased. Even after she moved out of Monkittee Street in 1990 Rosheen (and, subsequently, her children) continued to reside in Braidwood, and continued to see the Deceased on a daily basis. It fell to Rosheen to take the Deceased to her medical appointments (the Deceased suffered considerable health problems in the last ten years of her life). She attended to the Deceased’s banking, and in due course was appointed the Deceased’s attorney under power.
79 In 2000 Rosheen gave up her employment in Queanbeyan, so that she could be in constant attendance upon the Deceased. When the Deceased was admitted to the Braidwood Nursing Home in 2002, as a result of her health problems and her inability to look after herself, Rosheen was in the habit of visiting the Deceased every day. Rosheen attended to her mother’s washing, took her for walks and outings. On the occasion of some such outings Rosheen would take her mother to visit the Monkittee Street property, which had not been rented out.
80 I am satisfied that from the time of her return to Mount Elrington in 1975 until the Deceased’s death twenty-eight year years later Rosheen devoted much of her life to her mother.
81 Rosheen has chosen not to put her financial circumstances before the Court in the present proceedings.
82 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff.
83 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file
84 Each Plaintiff, as a child 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, each Plaintiff has the standing to bring the present proceedings. It will be appreciated that Rosheen, also a child of the Deceased, is also an eligible person within paragraph (b) of the foregoing definition. The only other eligible persons in relation to the deceased are Terence John O’Brien, the only son of the Deceased (who was born on 25 July 1957 and is currently aged 49), and, possibly, Curtis O’Brien, a grandson of the Deceased (being a son of Rosheen). Although served with a notice of claim, neither Terence nor Curtis has made a claim against the estate of the Deceased, and each is now out of time to do so.
85 A very considerable quantity of evidence was presented on behalf of the Plaintiffs and of the Defendant concerning the respective relationships of each Plaintiff and of the Defendant with the Deceased. I have already recorded that I am satisfied that the Defendant had a close and loving relationship with her mother. The relationship of each of the Plaintiffs with the Deceased was also a close and loving one, although none of the Plaintiffs lived in such geographical proximity to the deceased as did Rosheen, and none of the Plaintiffs was in daily attendance upon the Deceased, as was Rosheen.
86 As I have already observed, an order for provision is not made as a reward for good conduct. Neither is it withheld as a punishment for perceived bad conduct on the part of an applicant. Further, as I have already recorded, Rosheen, as the chosen object of the testamentary beneficence of the Deceased, does not have to prove anything. It is for each of the Plaintiffs to establish her claim upon its own merits. That claim cannot be enhanced, but may be reduced, in consequence of the competing claim of Rosheen.
87 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, each or one or some of the plaintiffs have been left without adequate provision for her or their proper maintenance. (See, also, Vigolo v Bostin (2005) 221 CLR 191, where the High Court affirmed the correctness of the foregoing test in Singer v Berghouse.)
88 I have already referred to the considerable quantity of evidence adduced, especially by the Plaintiffs, concerning the respective relationships between each of the Plaintiffs and the Deceased as well as between the Defendant and the Deceased and between each Plaintiff and the Defendant. In regard to those relationships it is appropriate to set forth the following salutary admonition of Windeyer J, in the High Court of Australia in Blore v Lang (1960) 104 CLR124 at 137,
- The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision 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 probable 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.
89 It was the primary submission on behalf of the Plaintiffs that the principle of equality should be applied to at least the four daughters of the Deceased, and that each plaintiff and the defendant should receive one fourth of the distributable estate. Such an approach, however, can in no way be supported by legal principle in a claim under the Family Provision Act. Accordingly, I propose to consider separately the claim of each plaintiff.
90 Patricia’s financial circumstances are characterised by a poor cash flow. However, her present situation is to a large extent due to what might be described as an unsuccessful farming enterprise. I do not consider that the restoration of a failing business can properly be identified as being a relevant need of an applicant who is claiming provision for her maintenance or advancement in life out of the estate of her deceased mother.
91 Of the various needs which Patricia identifies, claims in respect to fencing and materials (totalling $37,200), weed control ($3000), and a new vehicle change-over ($33,250), being in a total amount of $73,250, are clearly attributable to the uneconomic business enterprise which she conducts upon Mirrabooka.
92 It is not for the Court to tell persons how they should conduct their lives, or what business activities they should pursue. However, where an applicant claims provision for her maintenance out of an estate, then it is of considerable relevance whether the plaintiff grounds her claim upon the fact that a business enterprise which she has chosen to pursue is not economically viable or otherwise has not been a financial success. I do not consider that an applicant has a legitimate claim upon the testamentary bounty of her mother in circumstances where, as here, the purpose of that claim is essentially to retrieve the fortunes of a failing farming business.
93 In any event, however, it should not be overlooked that Patricia, as well as conducting the farming business at Mirrabooka, owns a residential house property at Hackett, presently worth $470,000. That house property, although currently rented, was not rented at the commencement of the proceedings, and has, through deliberate choice on the part of Patricia herself, been producing income only in relatively recent times. In addition, Patricia owns a house property at Marulan, having an estimated value of $137,000. Similarly, that house property was not rented at the time of the commencement of the proceedings.
94 Patricia has a right of residence at Mirrabooka for her life. There is no reason why each of the house properties at Hackett and at Marulan should not have been rented, and thus been producing income for her, long before the commencement of the present proceedings.
95 Were she desirous of doing so, Patricia could sell either or both of those residential properties, for the purpose not only of enhancing her lifestyle and providing her with an increased income, but also, should she so desire, for the purpose of retrieving the failing fortunes of her farming business.
96 I am not satisfied that Patricia has established that she has been left without adequate provision for her proper maintenance or advancement in life. Further, it should not be overlooked that under the terms of the will of the Deceased Patricia was entitled to a one fourth share of residue, which would have been in an amount of about $25,000, had the present proceedings not been instituted.
97 Neither should the liability of Patricia to pay the costs of Rosheen of the probate proceedings be overlooked. However, it does not seem to me that Patricia should, in effect, be rewarded in the family provision proceedings for what has been held by Justice Campbell in the probate proceedings to be in the nature of misconduct in her carrying out her duties as an executor.
98 Maree, like Patricia, seeks a one fourth share in the estate of the Deceased.
99 Maree is a married lady residing with her husband. She and her husband maintain a comfortable lifestyle, which allows them to have holidays and to participate in garden club trips. No evidence was placed before the Court by Maree’s husband, by her banker or by any accountant about Maree’s financial circumstances. I am not satisfied that Maree has discharged her primary responsibility of placing before the Court as fully and as frankly as possible all information relevant to her financial and material circumstances. It appears, however, that Maree in her present application is asking the Court, in effect, to meet asserted needs which could, or should, be met by her husband. There was no suggestion in the evidence which she placed before the Court that the marriage of Maree and her husband was likely to terminate. Even in such event, Maree has rights under the Family Law Act 1975.
100 Somewhat curiously, among the asserted needs of Maree was the acquisition of a cottage in Goulburn, costing in the order of $172,000- $195,000. Since Maree lives with her husband on a rural estate having a value in excess of $3,000,000, and since she and her husband own a holiday residence at Tarbourie (having a value of almost $400,000), I consider a claim by Maree that the estate of the Deceased should fund the acquisition of yet another residence, this time in Goulburn, to be totally without justification. The acquisition of such a house, and of a Toyota Camry motor car for $43,800, are merely inflated items upon an extravagant wish list. Even if Maree does not have ready money to meet what she describes as a pressing need for dental treatment (costing $11,000), despite the very significant assets of Maree and her husband, and despite her income (both from the Bullamalita Pastoral Company and from her earnings at Marian College) totalling about $21,600, nevertheless, had the present proceedings not been instituted, Maree would have received an amount of about $25,000 as her share in the residue of the estate. That amount would have been more than sufficient to meet any pressing dental needs.
101 I am not satisfied that Maree has established that as a result of the terms of the will of the Deceased she has been left without adequate provision for her proper maintenance or advancement in life. Accordingly, her claim will be dismissed.
102 Jacqueline and her husband have assets totalling about $970,000. Their liabilities total less than $33, 000. Jacqueline is in secure employment in the Commonwealth Public Service, currently receiving a net income of about $42,000 to $43,000 a year, (although it is possible that that level of income may diminish to about $37,000 a year). Jacqueline’s husband is also in secure employment, receiving a net income of about $35, 000 a year.
103 The assets of Jacqueline include a rural property at Teaswater. That property, which she inherited from her father in 1977, is unencumbered. It consists of vacant land. It is not used by Jacqueline and her husband, other than for occasional holidays and recreation, and is not income producing. The Teaswater property has a present value of about $127,000. The sale of that property would be more than sufficient to enable Jacqueline to pay for her wants (described by her as needs), totalling $106,000. It should here be observed that the only significant liability of Jacqueline and her husband, being a home loan currently in the amount of slightly less than $20,000, was incurred after the institution of the present proceedings. The purpose of that loan was to fund the purchase of a new motor car.
104 I am not satisfied that Jacqueline has established that she has been left without adequate provision for her proper maintenance or advancement in life. Again, it should be observed that, had the present proceedings not been instituted, Jacqueline, like her sisters, would have been entitled to receive about $25, 000 from the estate of the Deceased.
105 It follows from the foregoing, that I am not satisfied that any of the three plaintiffs has established that she has been left without adequate provision for her proper maintenance or advancement in life. That conclusion is sufficient to dispose of the claims of the plaintiffs.
106 Nevertheless, even if (contrary to my foregoing conclusion) I were to be satisfied that one or more of the plaintiffs had established that she had been left without adequate provision for her proper maintenance, the claim of such plaintiff or plaintiffs must be considered in the light of any competing claims upon the testamentary bounty of the Deceased.
107 Rosheen was the chief chosen object of the testamentary beneficence of her mother. Not only was she left the real estate at Braidwood (having a total value of about $532,000), but she was also one of the four residuary beneficiaries (and, like her three sisters, would have received about $25,000 had the present proceedings not been instituted). It is quite apparent that the Deceased gave very considerable thought to the terms of her will. She made that will on 28 April 1993, and she reviewed its terms with her solicitor some six months before her death. At that time the Deceased decided that it was unnecessary for her to make any alterations to the terms of the will which she had made some ten years earlier.
108 I have already observed that Rosheen did not place before the Court any details concerning her own financial and material circumstances. That fact does not of itself mean that the Court is entitled to disregard the interests of Rosheen or to disregard the fact that the Deceased, after due consideration and legal advice, was desirous of Rosheen, her dutiful and affectionate daughter, receiving the major part of her estate. The testamentary intentions of the Deceased are a very relevant consideration in this regard.
109 Any order for provision an entitlement to which one or more of the plaintiffs might otherwise have established should, in my conclusion be such as would not deprive Rosheen of the two Braidwood properties. Any such additional benefit to any of the Plaintiffs should be met out of residue.
110 But even a modest legacy in favour of one or more of the Plaintiffs could not be met out of residue, this being a consequence of the institution of the present proceedings, and of the entitlement of Rosheen to be reimbursed for her costs in resisting the claims of the three plaintiffs.
111 It follows, from my foregoing findings and conclusions, that the proceedings will be dismissed.
112 The usual costs order in such a case as the present is that the unsuccessful plaintiffs should pay the costs of the defendant, who is entitled then to seek reimbursement from the estate to the extent that those costs may not be recovered from the plaintiffs. It will be appreciated that if the defendant recovers all or a substantial part of her costs from the plaintiffs, and if she recovers the costs of the probate proceeding from Patricia, there will then be an amount of residue in the estate, and each plaintiff will be entitled to one fourth of that residue under the terms of the will of the Deceased.
113 I have not heard any submissions as to costs. If any party is desirous of seeking some costs order other that the usual order along the foregoing lines, an opportunity will be given to her to do so.
114 Accordingly, unless within seven days of the date hereof any party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:
1. I order that the proceedings be dismissed.
2. I order that the Plaintiffs pay the costs of the Defendant on the party and party basis.
4. The exhibits may be returned.3. I order that Defendant be entitled to recoup from the estate of the late Teresa Gerard O’Brien (“the Deceased”) the difference between her costs on the indemnity basis and the amount of the costs which she may recover pursuant to order 2 hereof.
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