Patrick v Manning

[2002] NSWSC 168

CITATION:	PATRICK v MANNING [2002] NSWSC 168
CURRENT JURISDICTION:	1592/01
FILE NUMBER(S):	SC 1592/01
HEARING DATE(S):	26/02/2002, 27/02/2002
JUDGMENT DATE:	28 February 2002
PARTIES :	JAYNE SUSAN PATRICK v JACQUELINE MICHELLE MANNING - ESTATE OF NOEL RAYMOND MANNING
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr S. Hughes for plaintiff Mrs M. Bridger for defendant
SOLICITORS:	Oliver Campbell for plaintiff Smyth, Turner & Wall for defendant
CATCHWORDS:	Family Provision. Claim by a daughter under the Family Provision Acjt 1982 in respect of a small estate which had been left to the widow of 20 years standing. Claim dismissed.
DECISION:	Paragraph 49

- 1 -

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

MASTER MACREADY

THURSDAY 28 FEBRUARY 2002

1592/01 - JAYNE SUSAN PATRICK v JACQUELINE MICHELLE MANNING - ESTATE OF NOEL RAYMOND MANNING

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Noel Raymond Manning who died on 4 September 2000 aged sixty-five. The deceased was survived by his first wife, two of his children, a former de facto partner, and the defendant, his second wife. The plaintiff is one of his two surviving children.

2 Under the will, which the deceased made on 6 December 1994, the deceased left the whole of his estate to his widow and appointed her sole executrix. He bequeathed $10 to each of his three children. Two weeks beforehand he made a holograph will which substantially repeated that provision, with additions to which I shall refer in due course.

3 At the date of death the estate as sworn consisted of vacant land Lot 492 Main Road, North Rothbury, now worth $135,000; cash of $2,246, and a truck and car worth in total $6,000. There are also three greyhound dogs and two pups, a speedboat with a trailer.

4 The cash has apparently gone on administration expenses and there is no evidence that any of the personal property is of any great value. The estate thus effectively comprises the vacant block of land.

5 At the date of his death the deceased owned as joint tenant with the defendant Lot 493 Main Road, North Rothbury upon which was erected their unfinished home. That home is presently worth $260,000.

6 The plaintiff has incurred costs to date of some $43,000, and the defendant $36,710.

7 I turn to deal with the chronology in the matter. The deceased was born on 16 May 1935 and the defendant, his widow, was born on 8 November 1947. In 1956, after the marriage of the deceased to his first wife Faye Green was over, the deceased commenced a de facto relationship with the plaintiff's mother, Rita June Manning.

8 The plaintiff herself was born on 13 November 1960. The deceased and the plaintiff's mother, together with the plaintiff, lived in Sydney up until about 1970 and then the plaintiff purchased the two properties being Lots 492 and 493 Main Road, North Rothbury. Shortly after this, the deceased and the plaintiff's mother separated. The plaintiff herself went to live with her mother at Weston, which is about twenty miles away from North Rothbury. The deceased continued to live at North Rothbury.

9 In or about 1973 to 1974 the testator commenced a de facto relationship at North Rothbury with Mary Willhemina Parry. She was also known as "Billy". In 1974 the plaintiff stayed with the deceased and Mrs Parry for three months or so. She then went to Kempsey with her mother.

10 In 1976 the plaintiff moved back in at North Rothbury and lived with her father and Mrs Parry until 1977. At that stage, following disputes between the deceased and Mrs Parry, Mrs Parry and the plaintiff moved into a caravan at Cessnock Showground. The plaintiff's first daughter Sarah Jayne was born on 23 July 1979.

11 At about this time the deceased bought a cafe known as the Bus Stop Cafe at Cessnock. That was the cafe in which Mrs Parry was working. In 1980 the deceased divorced his wife Faye Green. Also in 1980 the plaintiff's mother moved in with the plaintiff with her then de facto partner, Stephen Patrick. The plaintiff married Stephen on 14 February 1981. They had three children of their union, Stephen born in 1984, Holly Noelle born in 1986, and Nicole Rose born in 1991.

12 On 12 June 1981 the deceased married the defendant. In 1993 the deceased sold five acres from one of the lots and raised a sum of $105,000. That was used to build a house on Lot 493.

13 On 16 November 1994 the deceased was charged with sexual offences relating to the daughter of Mrs Parry. On 28 June 1995 the committal proceedings occurred and he was remanded to stand trial in the District Court on 30 September 1995. The case ultimately did not proceed and the deceased was acquitted.

14 There are a number of matters relating to statements made by the plaintiff in support of the police case, to which I will come in due course. A week or two later, on 26 November 1994, the deceased made the holograph will to which I have referred and in that he had this to say about his children:

"Teri Anne: 'Doesn't want to know me.'

Noel William: 'He lied, cheated and threatened. Not a nice son.'

Jayne Susan, the plaintiff: 'I gave her a shop. She has lied, stole all her life. I am not proud of her.'"

15 On 13 April 1995 the deceased transferred the property, which is Lot 493, to himself and the defendant as joint tenants. On 23 February 1996 the deceased's son, Noel, referred to in the evidence as "young Noel" died. The plaintiff found out some two week later and wrote a letter to the deceased, to which I will later refer.

16 On 1 April 2000 the plaintiff's mother died. Apparently the deceased, when he heard the news of his former partner's death said, "That is the best news I have heard all day". The plaintiff heard this and wrote a letter to the deceased, to which I will turn later. On 4 September 2000 the deceased died.

17 The plaintiff had been living with her husband in Armidale for two years at this time and in October she moved back to Cessnock to be close to her eldest daughter, who was mentally ill and in a mental institution.

18 Probate was granted on 22 December 2000.

19 In an application under the Family Provision Act the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At p 209 the court said:

"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."

20 I turn to the situation of the plaintiff. She is aged forty-one, married with four children. Three of them are dependent upon her, and the other is in a mental institution. Neither the plaintiff nor her husband work. She receives a pension and he receives a carer's pension to look after her. Their total income is $993.80 per fortnight and their expenses consume almost the whole of that amount.

21 The plaintiff suffers from a number of medical problems. These are: obesity; hypertension; oesophagitis; gastric problems; calcification of the dura; significant lumbar disc disease; depression and osteoarthritis of the knees. Many of these no doubt are exacerbated by her unfortunate obesity, which is gross. She has not worked since 1995 and clearly cannot do so at the moment. Her husband worked as a cleaner when they were in Armidale for two years but has not worked since then, apart from some minor work as a scrap metal dealer. It does not presently bring in any income as he had to sell his tip truck to pay for the bond on their new flat.

22 The plaintiff and her husband live in rented accommodation and have negligible assets.

23 It is necessary to have regard to the relationship between the plaintiff and the deceased. The defendant submitted that some aspects of that relationship amounted to conduct disentitling.

24 The plaintiff lived with her parents from 1960 to 1970 when she was ten. She visited her father at times after this and in 1974 stayed for three months. In 1976 she again lived with him for a year. Thereafter she did not live with him again. They still had a reasonable relationship up until 1981.

25 Two incidents occurred then which affected the relationship. The deceased refused to give the plaintiff away at her wedding and a few months later the deceased married the defendant. Thereafter contact between them continued for a while but gradually tapered off.

26 The plaintiff agrees that her relationship began to deteriorate after the last marriage of the deceased and that it ceased to be a father/daughter relationship. Further serious deterioration occurred in 1994 to 1995 with the sexual charges against her father. She made a statement to the police in support of those charges. The statement is not in evidence. This produced a strong response from her father who accused her of lying and he threatened to refuse to recognise her as his daughter. As a result the plaintiff changed her statement as requested by the deceased. She says now that the first statement was correct and that she signed the second just so she would not lose her father, no matter what she thought of him. I believe her in this respect as to her reasons for executing the second statement.

27 Another serious rift came when young Noel died after a very difficult life. The plaintiff's father knew but did not tell the plaintiff. This prompted a letter from the plaintiff in the following terms:

"I hope your happy now. You must hate me so much to do what you done to me. Noel was my brother and I never got to say goodbye.

Mum raised your son for so many years and she also never got to say goodbye. Terry got to know straight away but never even went to his funeral. You are so cruel and hurtful, you must be filled with so much hate for me to do this to me.

I grew up with Noel and spent more time with him than you. You didn't ever care when he went to jail, you didn't visit, we do. You were asked to help with the funeral after boasting about your big house, but no, your only on a pension, I'm only a pension. But I'll help put my brother to rest. I always made excuses to people about the way you treated us. I always said he loves us just doesn't know how to show it. Well I hate you.

I hope you and your wife rot in hell. You don't deserve for Noel and me to call you dad. Noel wouldn't be dead, if you would have helped him and loved him. Your kids need love. Your scum. How could you not let me say goodbye.

I wish you would have died not Noel."

28 The plaintiff confirmed in evidence the letter accurately expressed how she felt about her father at the time. The plaintiff's mother died on 1 April 2000. The plaintiff heard of the deceased's reaction, that it was the best news he had heard all day and wrote a letter in the following terms:

"I don't know how you could say what you did about my mother. You treated her like dirt, you bashed her, you abused her and you hated her.

The last 8 mths she suffered she lived on oxygen. She couldn't walk, she couldn't feed herself, dress herself, her life was just a misery. Just like the life you gave her.

I hope to God that when your time comes you suffer, your in pain, your life is just a constant hell, and your on your own. You die a lonely painful death because your own children hate you.

The good thing mum had was knowing I loved her, her grandkids loved her, and she was never alone, everyday we all were there every moment.

You I hope die a very lonley man as you don't know what love is and never will.

I have so many people who could say how rotten a man you are.

Why your alive and mum and Noel aren't is because your time will come. For me the sooner the better. But you won't be at peace like mum is now. You will be restless, you will be in the hot hole of hell where you belong. You are a cruel, lying, cheating, violent, disgusting thing and you belong 6 foot under and rotting. I hate you so much, please rot in hell."

29 Clearly the plaintiff was provoked by the deceased's reaction to the news of the plaintiff's mother's death. These feelings which the plaintiff held did not change until after the deceased's death.

30 When one stands back and looks at the relationship there is a period up until ten and a few years after that when the plaintiff left home that the relationship was what one might describe as normal. There is no reason not to accept the plaintiff's account of her good interaction with the deceased during this period.

31 By the end of the 1980s the relationship had all but ceased, and by the 90s it turned to where the plaintiff hated her father and made that known to him. There are sufficient hints in the evidence to indicate the deceased was a difficult man and I am reluctant to conclude it was all the plaintiff's fault. She is a fairly simple woman and probably reacted quickly to what she perceived as hurts from her father.

32 Although the relationship clearly finished I would be reluctant to describe her contact in the 1990s as disentitling. She, for instance, honestly believed that her first statement to the police was correct. This said, the relationship was one which effectively only covered her childhood and her claim has to be considered in the light of this fact. Although she helped in the period of her childhood on the property, she made no significant contribution to the estate.

33 There was an allegation by the deceased that he gave the cafe known as "The Bus Stop Cafe" in Cessnock to the plaintiff and her husband as a wedding present. Exhibit 1, which I have quoted before, refers to the fact that he gave her a shop. He repeated this to the defendant and claimed that the plaintiff walked out shortly thereafter leaving him with debts of $30,000 which he had to pay.

34 Apparently Mrs Mary Parry had worked in the cafe in 1978 and 1979. In 1979 the deceased purchased the cafe. Mrs Parry continued working there until 1980. At that stage she caught the deceased and the defendant in a car together one night and found out about the deceased's infidelity to her. In a rage she "trashed" the shop and he took three days to clean it up after she had done that job. The plaintiff's evidence was that her father asked her and her husband to help out until he could sell it, and she continued to do so for some six to eight weeks.

35 Towards the end of 1980 or early 1981 the plaintiff asked her father to give her away at her wedding. He refused, probably for what he considered to be good reasons. He did not want to be at the wedding when the plaintiff's mother would be present. This prompted the plaintiff, according to her, to give him back the keys of the shop and to stop work.

36 The incident in October would be very embarrassing to the deceased. It is not unlikely that the story which he gave is no more than a story to cover up what has happened in the embarrassment and the difficult situation he was in. In any event, leaving aside such conjecture, I am not satisfied that he did give the shop to the plaintiff. There is not a shred of any documentary evidence which has been tendered to support the suggestion.

37 It is necessary to consider others having a claim on the bounty of the deceased. These are the defendant and the first wife of the deceased. The latter cannot be found so no notice under s 20 has been served on her.

38 The defendant is fifty-four years of age, single with no dependants. She is not in a relationship with any other person. Her assets consist of the property Lot 493 Main Road, North Rothbury. She has savings of $250, and a car worth $15,000, household effects worth $3,000, a ride-on mower worth $1,000, and tools and machinery worth $1,800. She lives on a disability support pension of $404 per fortnight.

39 The defendant suffers from significant disc disease of the lower spine. This causes her significant pain and difficulty and obviously prevents her from working. She is having continued treatment for the problem.

40 I have mentioned that the home she lives in has not been completed. For example, there is no septic system and waste simply runs outside into a pit. This is a real health hazard and needs to be addressed. She is not connected to the town water supply and cannot afford the fee to find out how much it would cost to connect. She uses polluted dam water to wash her clothes and drinks tank water, which at times she has to pay to refill.

41 There are minimal floor coverings and she wishes to spend $8,633 to carpet the place, which may help with her back problems. She needs a Posturepedic bed which will cost $2,998 which she cannot afford.

42 Even if the plaintiff is not successful, the vacant block will have to be sold to pay the defendant's costs. Obviously the plaintiff will not be able to meet that. This would at least provide some funds to the defendant to attend to these matters. She also wishes to spend $6,800 to complete the deceased's grave, not an unreasonable desire, and needs to spend some $2,000 on an alarm system on the property.

43 Widows' claims are frequently the subject of applications in this court. The Court of Appeal in Goloski v Goloski (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, which was approved by the Court of Appeal on 24 April 1986. There the court 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.”

44 The relationship was for twenty years. It was happy enough for the defendant. Although there were some ups and downs it seems to me it should be categorised as a happy one. The defendant looked after the deceased for the last eight years when his health deteriorated rapidly. He had admissions for heart problems and stress and also had a hip problem which required an operation. This imposed quite a heavy load on the defendant. She had to look after the property and the dogs and it was fairly hard work. Many witnesses gave evidence of the extensive work she did looking after the place and the deceased's dogs.

45 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The main matter advanced was that the plaintiff asked the Court for some funds to purchase a home. There is evidence on affidavit on the plaintiff's behalf that in the Cessnock area homes cost in the vicinity of $120,000, and that the costs associated with the purchase would amount to $4,400. In the alternative it was suggested that some sum, unquantified, be provided to provide some small improvement in the plaintiff's lifestyle as she is living merely on the pension in rented accommodation.

46 In Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, 23 March 1998, his Honour had the following to say:

"The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own."

47 In a small estate with competing claims it is out of the question that the plaintiff should receive sufficient to provide her with a home. The only question is whether she should get some small legacy. It is possible to sub-divide off part of the defendant's home and sell it but the defendant does not want to do this as she wants, quite reasonably, to keep her road frontage and not live on a battleaxe block.

48 In my view this is one of those matters where the estate is not large enough to accommodate the claims of the plaintiff. The deceased's obligations to his widow of twenty years must prevail, particularly as the estate is small.

49 Accordingly, the orders I make are as follows:

1. I dismiss the proceedings.
2. Subject to submissions, I order the plaintiff to pay the defendant's costs.
3. I order that to the extent that the costs of the defendant are not met by the plaintiff, the defendant's costs be paid or retained out of the estate of the deceased.
(Counsel indicated that they had no submissions to make on the question of costs.)

50 The orders will be as I have proposed. The exhibits may be returned.

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Last Modified: 03/14/2002