Paul Joseph Colley v The Public Trustee
[2000] NSWSC 486
•9 June 2000
CITATION: Paul Joseph Colley v The Public Trustee [2000] NSWSC 486 FILE NUMBER(S): SC 4304 of 1995 HEARING DATE(S): 7,8, 9 and 16 June 1999
Final Written Submissions 9 August 1999JUDGMENT DATE: 9 June 2000 PARTIES :
Paul Joseph Colley v The Public TrusteeJUDGMENT OF: Simos J at 1
COUNSEL : R B Wilson
L J Ellison
(Plaintiff)
(Defendant)SOLICITORS: Stacks - The Law Firm
Gordon A Salier
(Plaintiff)
(Defendant)CATCHWORDS: Family Provision Act 1982 - order made in favour of applicant who cared for the testator for many years. LEGISLATION CITED: Family Provision Act 1982 CASES CITED: Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24; Singer v Berghouse (1994) 181 CLR 201. DECISION: Order in favour of the applicant.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONEQD4304/95
SIMOS J
9 June 2000PAUL JOSEPH COLLEY v THE PUBLIC TRUSTEE
JUDGMENT1 By summons, Paul Joseph Colley, the plaintiff, claimed against the Public Trustee, as executor of the estate of the late Richard Leon Quesnel (“the testator”), pursuant to section 7 of the Family Provision Act 1982 , an order that provision be made out of the estate of the testator for his maintenance and advancement in life. The plaintiff claims, and it is not disputed on behalf of the defendant, that he is an eligible person in relation to this application, upon the basis that he was a member of the household of the testator prior to his death, as well as upon the basis that he was relevantly dependent upon the testator prior to his death.
The Proceedings:
The Facts:
2 The testator died on 30 April 1995, aged 62 years, having been born in England on 22 March 1933. The testator was never married and there were no persons other than the plaintiff who are eligible persons within the meaning of the Act.
3 By his last will dated 25 July 1994, the testator appointed the defendant as executor and trustee of his will and gave the plaintiff (provided he survived the testator by one calendar month) all his household goods, all his personal effects, and relevantly, one-tenth of the residue of his estate.
4 By his will the testator also gave, relevantly, one-tenth of the residue of his estate to each of Abigail Quesnel, his niece, Charlotte Quesnel, his niece, Sophie Quesnel, his niece, Peter Duff, his cousin, and The Governors of Hampton School. In addition the testator, by his will, gave his brother, John Brindsley Quesnel four-tenths of the residue of his estate.
5 Probate of the will of the testator was granted to the defendant on 5 June 1995. The testator left assets at the date of his death having a gross value of $630,286.22. Included in the assets of the testator as at the date of his death was a home unit being No. 18/89 Oaks Avenue, Dee Why, which had an estimated value of $245,000 and in respect of which the testator was the registered proprietor of the relevant strata title. The balance of the estate consisted of moneys on deposit, shares in publicly listed funds and units held in managed funds.
6 As described by his brother the testator was a well educated, meticulous and articulate military gentleman who attended Hampton School in England which is one of England’s leading independent schools. He was head boy and senior games captain. He joined the British Army in April of 1952. He served in various Regiments, including the Royal Army Education Corps in England, East Africa, Hong Kong, Singapore and Christmas Island in the Pacific. Unfortunately paralysis of his leg set in during his twenties and he retired from the Army in 1963.
7 The testator subsequently emigrated to New Zealand and became an Australian citizen in 1967. He initially worked for the University of New South Wales and then the Australian Gaslight Company where he was an economist accountant for some twenty-six years. He eventually became the principal investment adviser to the trustees of the superannuation fund of the Australian Gaslight Company, a position which he held until he retired on health grounds in 1992. The testator was a graduate in Commerce of the University of New South Wales and was studying for a Masters Degree in politics (Monash University) when he died. According to the testator’s brother he was a lover of the arts and was closely involved in several charities.
8 The testator was extremely well read and edited, among other things, various newspapers and corporate in-house journals, both whilst in the Army and at the Australian Gaslight Company. The testator was very fond of his parents and other members of the family, especially his brother John’s wife, Rosemary, and his three nieces, Abigail, Sophie and Charlotte. The testator was Charlotte’s godfather. According to the testator’s brother he was also very proud of having attended Hampton School and always expressed gratitude for the high standard of education he received there. One of the Hampton School prizes is the Quesnel Cup for English which was named after the testator and in recognition of his love of English literature and the English language. He apparently enjoyed watching all sports, was a lover of fine food and wine and travelled extensively.
9 The following facts are derived principally from the evidence of the plaintiff whose evidence in general I accept despite a vigorous cross-examination by counsel for the defendant.
10 The plaintiff was born on 8 June 1951 in Middlesex, England, and has one brother, Raymond Charles Edward Colley, born on 17 March 1948. The plaintiff left school in 1968, having achieved thirteen O levels and between 1968 and 1972 was employed as a costs clerk by a firm of solicitors in London. In 1970 the plaintiff completed the Legal Executives Examination and became a Fellow of the Institute of Legal Executives. From 1972 to 1974 he was employed as an accounts clerk by Bank of Credit and Commerce Limited. He arrived in Australia in March 1974 on a permanent residence visa, having obtained a position in the Accounts Department of Caltex in Sydney. He obtained accommodation in Bondi.
11 The plaintiff arrived in Australia on 25 March 1974 and after spending a few weeks in Melbourne came to Sydney and took a small flat in Coogee. He wrote to the deceased at his address at Potts Point, giving him the plaintiff’s contact details and where he was working at Caltex in the city. The first contact which the plaintiff had with the testator was one lunch time when the testator arrived at the plaintiff’s place of work whilst attending a function next door. At that time the deceased was still very mobile using crutches and not a wheelchair.
12 When he arrived in Australia in 1974, the plaintiff contacted the testator who was then living at 2/3 Reed Street, Cremorne. At that time the testator was employed by the Australian Gaslight Company and the plaintiff contacted the testator through the testator’s place of work. In his original affidavit sworn 2 April 1996, the plaintiff stated that the testator “had been a close family friend in England”. The plaintiff said that the testator was a regular visitor to the plaintiff’s grandmother’s home in Richmond Hill and often joined family outings. The plaintiff said in his affidavit that the testator left England in September 1954 but resided in England from August 1957 to August 1958 when he again left England to reside on Christmas Island and in Singapore and Hong Kong. The testator returned to reside in England between September 1961 and July 1963 when he moved to New Zealand, finally settling in Australia in 1964. The plaintiff said that the testator wrote to him through his grandmother and sent birthday cards and gifts whilst the testator was overseas. The plaintiff said that he and the testator were “close” in spite of the difference in age.
13 In his later affidavit of 9 July 1998 the plaintiff said that his first recollection of meeting the deceased was at Kew Gardens with his grandmother and grandfather when the plaintiff was about eight years old. According to the plaintiff the deceased had a camera with a self-timing function on it and recalled his grandmother saying to him at that time “This is your father” or words to that effect. A photograph of the testator with the plaintiff and the plaintiff’s grandfather and grandmother was tendered in evidence.
14 In his last mentioned affidavit the plaintiff said that he had never seen any formal proof that the testator was his father but believed that the testator “may well have been my father”. On the plaintiff’s birth certificate the plaintiff’s father is said to be the plaintiff’s mother’s first husband. The plaintiff said, however, that the testator had said to him on “very many occasions” that he (the testator) had “executed a deed in England on 27 July 1951” in which deed the testator acknowledged the plaintiff as his son or words to that effect. The plaintiff said that such a statement existed in an agreement between the testator and the plaintiff made 12 May 1982, although he had never seen the deed said to have been executed by the testator in England on 27 July 1951. The relevant statement in the agreement between the testator and the plaintiff made 12 May 1982 is as follows:-15 In the unexecuted form of will of the testator dated 2 September 1987 the plaintiff is described as the son of the testator in the sentence:-
“The relationship between the parties is that of father - son (although there is no documentary proof of this relationship now available, it was acknowledged by deed of Richard Leon Quesnel, executed in England on 27 July 1951). By this agreement Richard Leon Quesnel acknowledges Paul Joseph Colley to be his son and ‘friend’ and Paul Joseph Colley acknowledges Richard Leon Quesnel to be his lawful father and ‘friend’.
Although in regular contact with each other before that time, the parties did not commence cohabitation until 4 September 1979.”
“If, at the time of my death I am still living with my son, PAUL JOSEPH COLLEY …”
16 According to the plaintiff, after his arrival in Australia in March 1974 and his contact with the testator, the plaintiff and the testator quickly renewed their friendship, usually meeting once a week when they dined together and shared a number of interests including music, the theatre, literature and a love of the English language. The plaintiff said that he would describe his relationship with the testator following the plaintiff’s arrival in Australia as a father and son relationship.
17 Between 1976 and 1979 the plaintiff was employed by the Perpetual Trustee Company Limited and was involved in trust administration and client funds management. In July 1979 the testator suffered a second thrombosis in his left leg as a result of which he was admitted to the Prince of Wales Hospital where he remained for two months. The plaintiff says that he visited the testator regularly at this time and attended to a number of personal matters on the testator’s behalf including washing, collecting and posting his correspondence, shopping and securing his flat. Following the testator’s discharge he was confined to a wheelchair. Prior to the testator’s discharge two flatmates with whom the testator had resided in his flat at Cremorne, left. The plaintiff visited the testator regularly following his discharge and during the first week after discharge noted that the testator was not eating properly or regularly, that he was not bathing regularly and that the apartment was in a state of disrepair and was dirty and unkempt. When the plaintiff visited the testator, the plaintiff brought food and tidied and cleaned the flat.
18 At this time the plaintiff and the testator agreed that it would be more convenient if the plaintiff moved into the testator’s flat, although the plaintiff says that he regarded this arrangement at that time as temporary only until the testator regained his mobility and independence. In September 1979 the plaintiff gave up his apartment in Bondi and moved into the deceased’s apartment in Cremorne. Between September and November 1979 the plaintiff paid for food and other necessities on the understanding that the testator would reimburse him. He also contributed equally to other accounts, including electricity and telephone. The testator paid the mortgage. In about November 1979 the testator showed the plaintiff the financial statements of the New South Wales Building Society relating to the mortgage on the flat and the valuation of the flat. The testator said to the plaintiff words to the effect:-
“Why don’t you take a half interest in the flat? Now that I’ve got nobody else to live with I’m finding it very hard to make ends meet. If you can see your way clear to paying $60 a week on account of the mortgage, even though this exceeds the actual mortgage, you will be buying a full half share in the apartment and when the mortgage is discharged, I will have the title deed changed to show your half interest. We can share the other expenses.”
19 From that time the plaintiff paid $60 per week from his wages directly to the testator, and generally, shared the other expenses equally, including food, electricity, gas and rates.
20 The plaintiff believes that on or about 24 November 1979 the testator and the plaintiff signed a written agreement by which the plaintiff agreed to make weekly payments of $60 per week in return for the deceased transferring to him a half share of the property at 2/3 Reed Street, Cremorne. A copy of that agreement no longer exists as it was apparently lost as a result of a burglary at the Reed Street, Cremorne property. Therefore, on or about 12 May 1982, the testator and the plaintiff entered into a further written agreement concerning the property at Reed Street, Cremorne. This agreement was prepared by the testator and, according to the plaintiff, appears to have been typed on the portable electric typewriter of the testator. The testator presented the agreement to the plaintiff and the plaintiff signed it at the Reed Street property. The testator then took it back and after the death of the testator, the plaintiff found a copy of the agreement in the papers of the testator. The agreement of 12 May 1982 was in the terms set out below
21 Forms of will as envisaged by clause (2) of the agreement of 12 May 1982 for each of the plaintiff and the testator were drawn up but were apparently never executed and copies of the unexecuted forms of will are Annexures B and C to the affidavit of the plaintiff of 9 July 1998.
22 The plaintiff paid the testator $60 per week from November 1979 until after November 1989 (the latter date being the date provided in the agreement of 12 May 1982 for the cessation of the payments of $60 per week), the reason being that the testator and the deceased were thinking of doing some major building work at the unit, namely, to provide direct ramp access into the rear garden and to reopen the balcony which was enclosed for many years.
23 Between September 1979 and March 1993 approximately $62,000 was spent in improvements to the property, including new electrical wiring, window sashes, windows, some internal painting and replastering, renovation of the kitchen, renovation of the bathroom, laying of carpet twice in the small bedroom, the sunroom, and the testator’s bedroom and once in the hall. The plaintiff says that he contributed half the cost of this work and was financially able to do so because he was operating his personnel agency business at the time.
24 Reference is made to an amount of $61,923.15 as being the cost of the capital improvements of 2/3 Reed Street, Cremorne, in the agreement between the plaintiff and the testator made on 22 August 1994 in relation to the premises known as 18/89 Oaks Avenue, Dee Why, which the plaintiff and the testator lived in from 26 March 1993. That agreement is entitled “AMENDMENT TO AGREEMENT DATED 24 NOVEMBER 1979 CONCERNING OWNERSHIP OF REAL ESTATE NOT EVIDENCED BY TITLE CERTIFICATE” and its more relevant terms are set out below.
25 The plaintiff says that he also assisted the testator in improving his mobility and encouraged him to regain his confidence in using crutches instead of his wheelchair by helping him to practise the use of crutches in the home and supporting him when he tried to walk with the crutches. The plaintiff also assisted the testator doing weight bearing and strengthening exercises as prescribed by the physiotherapist. Within four weeks of the plaintiff moving into the Cremorne apartment the testator was using his crutches in lieu of his wheelchair, and was able to attend to small domestic tasks and personal chores without assistance. The plaintiff attended to the shopping or took the testator shopping.
26 The plaintiff says that when he moved into the apartment the testator was depressed and withdrawn whereas prior to the thrombosis he had been very active and had enjoyed a full social life. The immobility of the testator prevented him from going out socially and from dining in restaurants, something which he particularly enjoyed. When the testator regained his mobility his confidence visibly improved.
27 Between 1979 and 1991 the plaintiff operated his own personnel agency specialising in the placement of temporary and permanent computer staff, and at various times operated businesses from Milson’s Point, North Sydney and Chatswood.
28 The plaintiff says that in 1981 he made a will, using solicitors, in which he gave the testator a life interest in any real estate that he held as well as his personal effects. The rest and residue of his estate was to go to his niece, Emma Colley. Some time later the testator copied the terms of the plaintiff’s will substituting his own bequests. In that will the testator left the plaintiff a half share of his real estate and a life interest in the balance of his real estate together with his personal effects. The plaintiff has been unable to find copies of the wills which the testator and the plaintiff made in about 1981. However, on or about 2 September 1987 the deceased and the plaintiff executed wills in the AGL Centre garage at the Pacific Highway, North Sydney, while waiting for the deceased’s taxi to take him home. One of the witnesses was a parking attendant and the other witness was an AGL security staff person. Copies of those wills have been referred to above and are Annexures B and C to the affidavit of the plaintiff of 9 July 1998.
29 In 1986 the testator was assaulted while on holiday in Queensland during which assault he sustained fractures to fingers on both hands and thereafter had great difficulty using is crutches. The plaintiff met the cost of chauffeured limousines to take the testator out and to and from work. However, between August and December 1987 the testator suffered a series of accidents at home. Because the plaintiff was concerned about the response time from ambulances being poor he purchased a new Hyundai motor vehicle to ensure that he could transport the testator promptly to and from hospital in the event of accidents. The plaintiff purchased the car for $15,000 from his own savings.
30 In June 1988 the testator travelled to the United Kingdom for two months to visit his father. The plaintiff met the cost of limousine hire and the air fares of the testator. The plaintiff believes these expenses amounted to approximately $12,000 which he paid from his savings. On his return the testator told the plaintiff that he had been to see a London specialist who had diagnosed him as suffering from liver cancer and leukemia and that the prognosis was not good.
31 Thereafter the condition of the testator deteriorated and in August 1988 he was unable to use his crutches and from then on used a wheelchair permanently. The plaintiff purchased a larger vehicle to accommodate the wheelchair and spent approximately $15,000 from his savings on modifications to the bathroom and kitchen and on the purchase of new appliances to assist the testator.
32 Until the plaintiff closed his personnel agency in 1991, he contributed half of the cost of new wheelchairs for the testator. During that time the testator required seven new wheelchairs at an average cost of $2,000 each. The plaintiff estimates that he contributed approximately $7,000 towards the cost of these wheelchairs.
33 On 11 July 1989 the plaintiff was involved in a motor vehicle accident when driving the testator to work in North Sydney as a consequence of which he sustained some significant injuries and disabilities.
34 The plaintiff after the accident in 1989 and up to 1991 continued to operate the personnel agency but not on a full time basis managing only two or three hours work per day. The plaintiff continued to suffer from migraines, spasms, fits, blackouts, amnesia and concentration difficulties. Two years after the accident, in 1991, he was diagnosed by a doctor as suffering from short term memory loss and at that time ceased operating the business. The business was not sold as the goodwill was personal to the plaintiff. Thereafter the plaintiff became totally dependent on the testator to sustain himself financially. The plaintiff was unable to work and had spent his savings on effecting modifications and repairs to the Cremorne apartment and on his own medical expenses.
35 In about March 1993 the deceased purchased the unit at 18/89 Oaks Avenue, Dee Why, for approximately $250,000. The plaintiff sold an oil painting for $10,000 and used the funds to contribute to the costs of carpets, blinds, glass panelling, security doors, new locks and the modification of the kitchen.
36 In about April 1993, after moving into the Dee Why unit, the testator said words to the effect that his life expectancy was little more than twelve months and he didn’t want to go into a nursing home while his brain was still active. He asked the plaintiff to stay with him and look after him until he died. The testator promised the plaintiff that his will would give him a life interest in all of his estate until his accident claim was settled. He also told the plaintiff that he would receive 50 per cent of the Dee Why unit and a share of the remaining assets when the accident claim was paid. In November 1993 the testator’s brother, John, visited the testator and the plaintiff who had not met him previously. In December 1993 the Reed Street, Cremorne property was sold for $240,000.
37 In April 1994 the testator entered remission and in July 1994 the plaintiff took the testator to the Public Trustee’s office at Dee Why to make a new will. After the appointment the testator said to the plaintiff words to the effect that the Public Trustee officer had said to him that it was too complicated to administer a will in terms of the agreement between them and that it would be better dealt with in a separate letter or by a contract. In December 1994 the testator showed the plaintiff an undated document entitled “codicil” which was in the following terms:-
“GIFTS: I leave all the income from all my estate to PAUL JOSEPH COLLEY for his exclusive use until such time as his claim for personal injury compensation arising from the motor vehicle accident 11th July 1989 (when he was driving me to work) is paid or he dies, whichever is the sooner.
1.01 When the Compensation claim is paid or PAUL JOSEPH COLLEY dies whichever may be the sooner, then my estate may be distributed in accordance with my Will of 25th July 1994 and subject to the additional gifts in this codicil.
2.0 In addition to the gifts made to him in my Will and if he survives me by one calendar month, I give to PAUL JOSEPH COLLEY fifty percent of our home (18/89 Oaks Avenue Dee Why) and a life interest in the remaining fifty percent, with PAUL JOSEPH COLLEY to be responsible for all outgoings and to enjoy exclusive unencumbered use of the property for as long as he wishes.
2.01 In the event that PAUL JOSEPH COLLEY wishes this real estate to be sold he is to receive in addition to the other gifts, his fifty percent plus one share in the remaining fifty percent to terminate the Life Interest component in this real estate.
2.02 Whilst the decision to sell this real estate shall at all times rest with PAUL JOSEPH COLLEY, I direct my Executors to arrange and complete such a sale in accordance with their normal procedures.
3.0 If this real estate gift to PAUL JOSEPH COLLEY does not take place, because he does not survive me by one calendar month, then I make this gift to my brother JOHN BRINSLEY QUESNEL.
4.0 In all other respects I confirm my Will dated the 25th day of July 1994”
38 It will be observed that the form of codicil provides that in addition to the gifts made to the plaintiff by the will of the testator the plaintiff was to receive 50 per cent of the property 18/89 Oaks Avenue, Dee Why, and a life interest in the remaining 50 per cent of that property. This was consistent with the agreement between the parties dated 22 August 1994 referred to earlier. It appears that this form of codicil was never executed by the testator prior to his death.
39 At this time the testator said to the plaintiff words to the effect that he had “worked this document out” with the solicitor he met in Queensland, who had told him he should sign it before going into the hospital if the plaintiff’s accident claim hadn’t been settled. The plaintiff read it and the testator said that he thought that dealt with everything.
40 During June 1998 the plaintiff settled his motor vehicle accident claim for $225,000 plus costs in respect of which he has been advised that he will receive a net amount of $175,000. As a result of this the plaintiff will be ineligible to receive the pension which he has been receiving for approximately four years.
41 On 5 April 1995 the testator said to the plaintiff in the car park at the Macquarie Centre words to the effect that “this is the codicil, I’ll get you to post it”. The testator had it in a carry bag and he took it out and before placing it in an envelope addressed to the Public Trustee at Dee Why the plaintiff noticed that the document appeared to be the same as the codicil which the testator had shown to the plaintiff in December 1994. The plaintiff saw a reference in it to a life interest and also noted that there were two signatures on it apart from that of the deceased. This document was placed in the envelope addressed to the Public Trustee with a cream coloured letter. The plaintiff apparently says that he posted the codicil to the Public Trustee at the Macquarie Centre together with letters addressed to the deceased’s nieces, Stacks, The Law Firm and PJ Andrews, the wife of an old friend of the deceased. Earlier that day the testator and the plaintiff had gone shopping at Warringah Mall and had gone to the Advance Bank at Warringah Mall. It may be that the testator executed the codicil at the Advance Bank branch at Warringah Mall. The testator also made a statutory declaration on 5 April 1995. The statutory declaration details the testator’s observations of the effects upon the plaintiff of his motor vehicle accident.
42 The deceased was admitted to St. Vincent’s Private Hospital on about 13 April 1995 and remained there until his death on 30 April 1995. During that period the plaintiff attended at the hospital every day spending as much time with the testator as was available, given the hospital’s visiting hours.
43 The plaintiff continues to take medication for his amnesia, epileptic fits, migraines and depression. He has continued to live in the Dee Why unit following the death of the deceased and has lived there since March 1993. Since the death of the testator the plaintiff has paid the insurance on the unit, the body corporate levies and the council rates. He has nowhere else to live and wishes to continue living in the unit as his home. Since 1976 the plaintiff has been doing voluntary work with the Royal Blind Society in Sydney working with blind people for about four hours per month.
44 According to the testator’s brother the testator said to him a few days prior to his death words to the effect that he had bequeathed 10 per cent of his estate to each of his brother’s daughters and that if necessary, the legacies were to pay for amongst other things their future education. The testator also told his brother shortly before he died that his brother would receive 40 per cent of the testator’s estate.
45 The testator’s will reflected these statements but, in my opinion, the testator probably made these statements upon the basis that those percentages dealt only with the residue of his estate on the basis that the plaintiff would receive a 50 per cent interest in the home unit at Dee Why together with a life interest in the remaining 50 per cent of the unit to the intent that the plaintiff would be entitled to reside in the unit during his lifetime and be entitled to half the proceeds of sale when it was sold.
46 According to the testator’s brother, John, the testator “treated my daughters as his own (and) …corresponded with them regularly and frequently sent them expensive presents (and) … looked forward to the day when he could show Australia to them …”.
47 I do not doubt that the testator’s relationship with his nieces was generally as described by the testator’s brother but it is plain that any claim that they may be thought to have upon the testator’s bounty must be postponed until proper satisfaction out of the estate of the testator of the paramount claim upon the testator’s bounty of the plaintiff.
48 The same is true of the testator’s brother, John, thus I note that none of the testator’s brother and his three daughters are eligible persons within the meaning of the Act and that there is no evidence of any need on their part. The testator’s brother, John, is aged 50 years and is married with three daughters being the nieces of the testator referred to above. The testator’s brother, John, has worked for HM Customs and Excise since October 1975 and is currently the head of the Council Fees Tribunal Costs Unit in the Department’s solicitor’s office. He married his wife, Rosemary, in 1974, she being a primary school teacher. He has no sisters and his health is good.
49 I have had regard to the whole of the evidence including the evidence given by the testator’s brother, both by affidavit and orally but remain of the view that the evidence of the plaintiff should relevantly and in general be accepted except as indicated otherwise. In saying this I do not suggest that the evidence of the testator’s brother was other than truthful to the best of his knowledge as he saw or implied the facts.50 There was tendered in evidence the following documents, inter alia :
The agreement dated 12 May 1982 and the amendment thereto dated 22 August 1994 and the statutory declaration dated 5 April 1995
51 The agreement dated 12 May 1982 is stated to be between the testator and the plaintiff and includes the following:
1. AGREEMENT CONCERNING: OWNERSHIP OF REAL ESTATE NOT EVIDENCED BY TITLE CERTIFICATE dated 12 May 1982.2. AMENDMENT TO AGREEMENT DATED 24TH NOVEMBER 1979 CONCERNING OWNERSHIP OF REAL ESTATE NOT EVIDENCED BY TITLE CERTIFICATE MADE 22 AUGUST 1994.
3 . STATUTORY DECLARATION OF THE TESTATOR DATED 5 APRIL 1995.
52 The Amendment (dated 22 August, 1994) to Agreement referred to above was also expressed to be between the testator and the plaintiff and included the following material:
“The purpose of this agreement is to set out the background of and formalise the rights, entitlements and obligations of the parties specially concerning the real estate (2/3 Reed Street, Cremorne NSW 2090) and possessions therein.
(1) Background
Richard Leon Quesnel warrants that he is the registered title holder of the real estate (2/3 Reed Street, Cremorne).
The parties accept the valuation of the said real estate as being a gross figure of $60,000, pursuant to the valuation of Lidan Realty dated 21st November 1979, and that a mortgage is held over the premises by United Permanent Building Society Ltd.
Neither party shall further mortgage or pledge their rights or entitlements in the property…
The relationship between the parties is that or father/son (although there is no documentary proof of this relationship now available, it was acknowledged by deed of Richard Leon Quesnel, executed in England on 27th July 1951). By this agreement Richard Leon Quesnel acknowledges Paul Joseph Colley to be his son and “friend” and Paul Joseph Colley acknowledges Richard Leon Quesnel to be his lawful father and “friend”.
Although in regular contact with each other before that time, the parties did not commence cohabitation until 4th September 1979.
(2) Intentions
It is the express intention of the parties that Paul Joseph Colley will purchase by weekly installments, a half share of the real estate (2/3 Reed Street, Cremorne) such installments will be $60.00 per week (inclusive of capital and interest), commencing 24th November 1979 and concluding 27th November 1989. These installments shall be paid by cash or cheque and from these installments Paul Joseph Colley shall deduct the actual expenses incurred by him exclusively for Richard Leon Quesnel, such expenses probably including but not limited to: food supplies, newspapers, laundry, transportation, cleaning.
Both parties shall equal right to occupation of the property.
In order to provide for the eventuality of either party predeceasing the other, both parties hereby specifically undertake to make (and keep up to date) formal provision in their wills for the other to be entitled to exclusive possession for life of the real estate (2/3 Reed Street, Cremorne) and for the absolute half interest in the property to formally recognised by title certificate amendment if separate title certificates have not been issued before the death of either party. This provision shall apply even during the first ten years of the agreement and at all time thereafter …
All costs., liabilities, repayments and expenses relating to the mortgage with United Permanent Building Society Ltd shall be borne by Richard Leon Quesnel alone, as the weekly payments of $60.00 per week being made by Paul Joseph Colley exceed the amounts required by United Permanent Building Society under the terms of the mortgage and furthermore, Paul Joseph Colley is not a party to that mortgage nor is it the intention of the parties that he should be.
Richard Leon Quesnel is partially incapacitated by reason of paraplegia and seeks to secure to co-operation and support of Paul Joseph Colley on a long term basis. Paul Joseph Colley warrants to provide such assistance to intervene as necessary, helping Richard Leon Quesnel with his routine, personal and domestic difficulties, thereby allowing Richard Leon Quesnel to pursue his employment opportunities fully, for as long as possible…
If the parties wish to terminate this agreement after 27th November 1989 then each shall receive a full 50% of the gross market value of the property, which includes real estate and jointly held possessions such as but not limited to electrical appliances, furniture, furnishings, carpets, art works and domestic chattels …
Paul Joseph Colley warrants to intervene with care and respect for Richard Leon Quesnel’s dignity, providing care and assistance with living difficulties when needed …
The parties concede that documentary proof of their father/son relationship may not be available and it is therefore an express condition of this agreement that the parties protect each others rights and entitlements in their Wills, specifically providing for the life tenure of the surviving party and recognition of the half interest (if that absolute half interest has not been evidenced by certificate of title before the death of one of the parties)….”
“ Both parties have resided together at premises known as 18/89 Oaks Avenue, Dee Why NSW 2099 (Lot 18, Strata Plan 4669) since 26 March 1993 …
Richard Leon Quesnel warrants that he is the registered title holder of the said real estate (18/89 Oaks avenue, Dee Why) which is free of all encumbrances … the gross purchase price was $259,457.82 which included some maintenance for improving wheelchair access within the dwelling …
Richard Leon Quesnel warrants that the real estate known as 2/3 Reed Street, Cremorne, NSW 2090, was sold 17th December 1993. Both parties have checked the completion statements and are satisfied that the net proceeds of sale amount to $235,224.44.
Richard Leon Quesnel warrants that Paul Joseph Colley has continued paying the weekly installments of $60.00 (pursuant to the agreement of 24th November 1979) from 24th November 1979 until and including 25th November 1991, without any default and that he continued paying shares of expenses as prescribed by the agreement of 24th November 1979.
In July 1989 Paul Joseph Colley was injured in a car accident in the course of driving Richard Leon Quesnel to his place of employment (Agl North Sydney). It became necessary to institute Supreme Court proceedings concerning the car accident and in order to protect the rights of the parties to continue to occupy 2/3 Reed Street, Cremorne (in the possible event of losing such proceedings) the title certificate was not amended in November 1989 to reflect the names of both parties equally, even though Paul Joseph Colley was entitled to half the premises and had completed his financial obligations for this.
The parties agree that between 24th November 1979 and 30th June 1993 inclusive they have contributed equally to the cost of capital improvements and new fixtures at 2/3 Reed Street, Cremorne, NSW. This cost has amounted to $61,923.15.
Richard Leon Quesnel warrants that in January 1993 he obtained confirmation of medical advice that his life expectancy is only 12 to 18 months …
It was the express intention of the parties that Paul Joseph Colley would continue caring for Richard Leon Quesnel.
Paul Joseph Colley specifically undertakes to continue caring for Richard Leon Quesnel with respect to needs for dignity and discretion. He has accepted that the degree of care will continue to increase.
Paul Joseph Colley specifically warrants to hold secret and confidential the nature of Richard Leon Quesnel’s illness and thrombosis and the accept instructions from Richard Leon Quesnel on the matter of what may be discussed and with whom …
(5) Wills
Richard Leon Quesnel warrants that he holds half the entitlements to 18/89 Oaks Avenue, Dee Why in trust for Paul Joseph Colley until such time as separate title certificates are requested and processed.
In addition to the provisions of paragraph 8 of the agreement dated 24th November 1979 both parties agree to ensure provision in their wills and maintain such provision for the Survivor to be entitled to unrestricted occupation of 18/89 Oaks Avenue, Dee Why for the life time of the Survivor.
In addition to this life interest, Richard Leon Quesnel will make specific provision in his Will for Paul Joseph Colley to receive an absolute half share of 18/89 Oaks Avenue, Dee Why if separate title certificates have not been processed at the time of death of either party …”
53 The statutory declaration of the testator dated 5th April 1985 was in the nature of a statement by the testator relating facts relevant to the plaintiff’s accident claim.
54 The defendant retained Mr Paul Westwood a handwriting and questioned document examiner to examine each of the above documents and in relation to the agreement dated 12 May 1982 Mr Westwood expressed the following conclusion in his report dated 4 November 1988:55 In relation to the amendment dated 22 August 1994 Mr Westwood concluded as follows:
“Within the limitations imposed by the photocopy nature of the documents available for examination, I concluded that the three signatures on (this) document dated 12/5/1982, are reproductions of two genuine R L Quesnel signatures.”
56 In relation to the statutory declaration dated 5 April 1995 Mr Westwood concluded as follows:
“Within the limitations imposed by the photocopy nature of the documents available for examination, I concluded that the three signatures on (this) document dated 22/8/1994, are reproductions of three genuine R L Quesnel signatures.”
“Within the limitations imposed by the photocopy nature of the documents available for examination, I concluded that the two signatures on (this) document dated 5/4/1995, are photocopy reproductions of two genuine R L Quesnel signatures.”
57 Mr Westwood also examined three typed letters dated respectively 10 January 1993, 1 February 1993 and 16 February 1993, each bearing one signature in the name of the testator and concluded that there was “no evidence to suggest that these questioned signatures were written by anyone other than the writer of the specimen Quesnel signatures”. He added “assuming that the specimen signatures were written by the late Mr R L Quesnel then I am of the opinion that these questioned signatures are genuine signatures of R L Quesnel.”
58 Mr Westwood also examined a reproduction of a two page statutory declaration containing paragraphs numbered 1 to 20 dated 5 April 1995 bearing two signatures in the name of the testator as well as a reproduction of a two page statutory declaration containing paragraphs numbered 1 to 8 dated 5 April 1995 bearing two signatures in the name of the testator and concluded in respect of each that “within the limitations imposed by the photocopy nature of the documents available for examination” the questioned signatures of the testator were photocopy reproductions of two genuine signatures of the testator.
59 Mr Westwood was not cross-examined on behalf of the plaintiff nor was any expert evidence called in reply to Mr Westwood on behalf of the plaintiff. The plaintiff disclaimed any knowledge in respect of the signature of the testator on the documents but gave evidence that they came from the testator who asked the plaintiff to sign them which he did and that the documents were amongst the testator’s documents after his death.
60 In my opinion, the probability is that each of the two agreements was drafted by the testator either alone or perhaps with legal assistance. I say this because, in my view, the plaintiff, despite his qualifications and work history, would not have and would not have had the capacity to draw such documents himself. On the other hand, in my view, the drafting of the documents would have been well within the capacity of the testator, perhaps, as I have said, with legal advice and their content in my opinion reflects the meticulousness of the testator. I am also of the view that the contents of the agreements reflect the true facts including the true facts of the arrangements between the testator and the plaintiff and which are generally consistent with the plaintiff’s version of the relevant events.
61 It was submitted on behalf of the defendant that Mr Westwood’s reports should be accepted and further that the plaintiff should be found to have been the guilty party in relation to the placing of the signatures of the testator on the agreement.,
62 As stated earlier, the plaintiff in effect denied that this was the case and in light of that denial and also having regard to the fact that Mr Westwood himself qualified his opinions because of the fact that he was working from photostat copy documents rather than from documents bearing the original signatures I am not prepared to make a finding that the plaintiff was responsible for the forging of the testator’s signature’s on the agreements. In this connection I note that Mr Westwood prefaced the expression of his opinion in each case by use of the words “Within the limitations imposed by the photocopy nature of the documents available for examination”.
63 I would only add, however, that even if I had been satisfied that the plaintiff was responsible for the forgery of the signatures of the testator that, in my opinion, would not have disentitled the plaintiff to relief not least because, in my opinion, that conduct would not have relevantly amounted to misconduct vis a vis the testator for the purposes of the Act having regard inter alia to the fact that I have found that the relevant documents were drafted by the testator and accurately reflected the true facts.
64 It may be convenient at this point to also express my view that in all the circumstances of the present case it is unnecessary for me to determine whether or not the testator was in fact the plaintiff’s father or whether or not the plaintiff and the testator had a homosexual relationship and I expressly refrain from doing so. The reason why, in my opinion, it is unnecessary for me to make findings on either of those subject matters is because the provision I propose to make for the plaintiff would be the same whichever way those issues might have been decided.
65 I have taken into account inter alia the evidence concerning whether or not the plaintiff first lived with the testator in 1979 or 1980 having regard to the reference to a 1979 agreement referred to in the first of the two agreements referred to above but find myself unable to give it the significance which counsel for the defendant submitted that I should.
The Plaintiff’s Current Income and Expenditure, Assets and Liabilities
66 The plaintiff’s assets as at the date of hearing amounted to approximately $185,000, being $175,000 proceeds of motor vehicle accident claim, $5,000 motor vehicle, $5,000 household furniture and effects.
67 The plaintiff’s liabilities amounted to approximately $11,000 and his only income was $341.10 per fortnight disability pension which I accept will cease for at least four years having regard to his settlement of the motor vehicle accident claim.
68 His prospects of further employment are problematical, having regard to his present physical and mental condition.
The Present Assets of the Estate
69 The assets of the estate as at 17 May 1999 were cash $252,240.67 and the Dee Why unit.
70 The approach to be taken by the Court in cases such as the present is as set out in the judgment of the majority of the High Court in Singer v Berghouse (1994) 181 CLR 201 at 209-210 as follows:-71 As Sheller JA observed in Permanent Trustee Co. Limited v Fraser , (1995) 36 NSWLR 24 at 46-47:-
“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’ were explained in Bosch v Perpetual Trustee Co. Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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 (1951) 82 CLR 645, where there were no assets from an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”
“… although the FP Act specifies matters which may be taken into consideration and allows the Court to take into consideration unspecified circumstances existing before and after the death of the deceased person and any other matters which it considers relevant in the circumstances, it leaves undefined the norm by which the Courts must determine whether a provision is inadequate for the applicant eligible person’s proper maintenance, education and advancement in life. …In deciding whether the provision for an eligible person is inadequate for that person’s proper maintenance, education or advancement in life the Court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the circumstances mentioned in the FP Act and then obtaining, ought to be made in favour of the eligible person … I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression has generally been understood or used by the Courts. However it avoids doctrinal and judge made rules and fulfils the Court’s function, adverted to by Mahoney JA … of speaking for the feeling and judgment of fair and reasonable members of the community … As well as allowing for change in community standards this approach involves no departure from the language of the FP Act and removes any possible diversion resulting from a consideration of the relevant moral duties of the sort to which Stout CJ and Murphy J referred and irrelevant behaviour or considerations. I think this is the approach which the Courts should now adopt.”
Decision:
72 I have no doubt that in all the circumstances the provision made by the testator for the plaintiff in his will was inadequate for the proper maintenance and advancement in life of the plaintiff, having regard in particular to the long relationship between the testator and the plaintiff, the contribution of the plaintiff to the testator’s estate, the present needs of the plaintiff, the absence of any shown need on the part of any of the other beneficiaries of the will of the testator, the relationship between the testator and the other beneficiaries of the estate of the testator and the size of the estate.
73 The agreements between the plaintiff and the testator and the unexecuted codicil of the testator reflect, in my opinion, the testator’s own consideration of the obligation upon him to provide for the plaintiff. Although the testator’s own appreciation of his obligation to the plaintiff cannot conclude the Court’s own consideration of this matter it may be and is in my opinion, in the present case, a relevant matter for the Court’s consideration in determining what order should be made. In my opinion, however, in the present case, the making of an order limited to the testator’s own view of his obligation to the plaintiff would be insufficient to provide the plaintiff with adequate provision for his proper maintenance and advancement in life.
74 So far as concerns the relationship between the plaintiff and the testator it is plain that at least from 1979 when the plaintiff commenced to share the accommodation of the testator, that the testator and the plaintiff had a close relationship until the testator’s death. Moreover, the testator made it his business to document in great detail the financial arrangements between the parties, in which connection it is plain that he was concerned to ensure that the plaintiff received an appropriate share of the testator’s estate after his death.
75 This was not entirely altruistic on the part of the testator because it is plain that the plaintiff made significant financial contributions towards the relevant mortgage on the Reed Street, Cremorne property, and to the improvements and renovations to that property, which must have been reflected in the proceeds of sale when the property was sold and which contribution thereof continued, as it were, in respect of the property at Dee Why.
76 In my opinion, however, in all the circumstances, and having regard, in particular, to the absence of any need shown on the part of any of the other beneficiaries of the will of the testator, adequate provision for the proper maintenance and advancement in life of the plaintiff required and requires that the plaintiff whose primary need is for the security of accommodation should receive the whole of the Dee Why home unit beneficially free from costs and including the right to rent-free occupation of the unit as from the date of death of the testator, together with a capital sum for contingencies, more particularly having regard to the fact that the future employment of the plaintiff is to say the least, problematical, and having regard also to his present state of health and physical disabilities. More particularly is this so when it is plain that, as I have said, there are relevantly no competing claims on the testator’s bounty. As Sheller JA said in Permanent Trustee Company Limited v Fraser supra at 47 in relation admittedly to a different set of circumstances:-
“There were no competing claims. 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 estate in the home unit. Commonly people in the community need to move from their own home into a unit in the retirement village and then into nursing accommodation and then into total care accommodation: see per Young J in Christie v Christie (unreported), 3 December 1986 at 4. The need can be met if the respondent is given the home unit absolutely. She then has greater flexibility as well as greater security. Accordingly it seems to me to have been well within an appropriate exercise of discretion for the Master to have made the order he did and that I agree with it. In addition the respondent was, in my opinion, entitled in the circumstances of this case to be provided with an amount sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail; see In Re Harris (1936) SASR 497 at 501; Eggler v Mitchelmore (unreported), Court of Appeal, 11 November 1992 at 13. The appellant submitted that an appropriate revision would be $20,000. No reason was advanced beyond the fact that this amount was considerably less than that awarded by the Master, to support the conclusion that it was more appropriate. Bearing in mind the respondent’s life expectancy and the needs that she is likely to have during her remaining years I consider the amount awarded by the Master appropriate.”
77 In my opinion the approach taken in this statement by Sheller JA, is mutatis mutandis , applicable to the facts of the present case notwithstanding that the plaintiff already has a lump sum of $175,000 by way of the settlement of his personal injuries claim. That amount is less than the amount claimed for past loss of income and loss of future income earning capacity and cannot therefore be viewed in the circumstances of the present case as a capital sum to meet the exigencies of life to which the plaintiff will be subject, more especially having regard to his general health and physical condition. In my opinion, having regard to all the circumstances of the case, and notwithstanding the money spent, perhaps unwisely, by the plaintiff on an overseas holiday, and, in particular, to the absence of any competing claim on the testator’s bounty and the absence of any need shown on the part of any of the other beneficiaries of the will, as well as the size of the estate and the financial and physical and mental condition of the plaintiff, I am of the opinion that in addition to the whole of the home unit the plaintiff should receive a lump sum of $50,000 free from costs and expenses to meet the exigencies of life.
78 It was, in my opinion, reasonable in all the circumstances for the defendant to defend the plaintiff’s claim, more especially since the copies of the agreements between the parties including the amendment thereto were not originally in evidence and were not put in evidence until this month, but also because it was legitimate to uphold the will of the testator at least to the extent of attempting to minimise in the interests of the beneficiaries of the will the amount of any order which the Court might make. In those circumstances, I order that the costs of the defendant of the proceedings on an indemnity basis be paid out of the estate of the testator. As the plaintiff has also been successful in the proceedings it is proper also that the costs of the plaintiff be paid out of the estate of the testator.
79 I direct the parties to bring in short minutes of order reflecting these reasons for judgment after which final orders may be made.
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