Pearson v Jones

[2000] NSWSC 799

CITATION:	Pearson & Anor v Jones [2000] NSWSC 799
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1123/99
HEARING DATE(S):	29-31 March 2000
JUDGMENT DATE:	14 August 2000
PARTIES :	Geoffrey Gordon Pearson and Jennifer Margaret Pearson Philip Wallace Jones
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr A M Gruzman (Plaintiff) Mr J R Wilson (Defendant)
SOLICITORS:	Johnston Vaughan Solicitors (Plaintiff) Marshall Marks Kennedy Solicitors (Defendant)
CATCHWORDS:	Family Provision - Claims by adult grandchildren - Whether or not plaintiffs were partly dependent upon testator - Residence of testator was divided into two separate flats - Testator and her husband lived in one - Plaintiffs and their parents lived in the other - Frequent visitations between the two flats - Testator provided gifts and benefits to plaintiffs and their parents - Where plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the plaintiffs, such gifts and benefits, are not sufficient to establish that the plaintiffs were partly dependent upon testator - Whether there are factors which warrant the making of the application - Whether either or both plaintiffs have otherwise established relevant need - Whether, in any event, either Plaintiff has established an entitlement to an order for provision
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Petrohilos v Hunter (1991) 25 NSWLR 343 Re Fulop (1987) 8 NSWLR 679 Ball v Newey (1988) 13 NSWLR 489
DECISION:	1. I order that the summons be dismissed.; 2. I order that the Plaintiffs pay the cost of the Defendant.; 3. The exhibits may be returned.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 14 August 2000

1123/99 GEOFFREY GORDON PEARSON and JENNIFER MARGARET PEARSON -v-PHILIP WALLACE JONES

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 21 January 1999 the Plaintiffs, Geoffrey Gordon Pearson and Jennifer Margaret Pearson, claim that orders for provision be made for the education, maintenance and advancement in life of each Plaintiff out of the estate of their late grandmother, Edna Annie Pearson (to whom I shall refer as “the Deceased”). 3 The Deceased died on 15 January 1998, aged 95 years. She left a will dated 23 February 1984, probate whereof was on 28 September 1998 granted to Philip Wallace Jones, one of the executors named in such will (who is the Defendant to the proceedings); the other executor pre-deceased the testator. 4 By that will, the Deceased, in the events which have happened, gave the entirety of her estate to the children of her deceased daughter, Marjorie Isabel Lundin. 5 The chief asset in the state of the Deceased was a house property situate at and known as 59 Gale Road, Maroubra. In the inventory of property a value of $675,000.00 is ascribed to that house property. However, it was agreed between the parties that the present value of that property was $700,000. 6 The only other assets of any significance were furniture, jewellery and personal effects (to which a value of $10,000 was ascribed) and money in various bank accounts totalling $24,529. 7 Each of the Plaintiffs asserts that he or she is an eligible person in relation to the Deceased within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, in that each Plaintiff is a grandchild of the Deceased and, so it is asserted, that each Plaintiff was partly dependent upon the Deceased. 8    It will be appreciated that in the case of each Plaintiff, unless it can be established that that Plaintiff is an eligible person in relation to the Deceased, that Plaintiff does not have the standing to bring the present proceedings, and, in consequence, the claim of that Plaintiff must be dismissed. 9    There is, of course, no dispute that each Plaintiff is a grandchild of the Deceased. However, there was considerable dispute between the parties as to whether or not each grandchild was partly dependant upon the Deceased. (It should here be recorded that there was no suggestion made on behalf of the Plaintiffs that either of them was totally dependant upon the Deceased). 10    The evidence disclosed that for a period of about 26 years, from November 1951 until July 1977, the parents of the Plaintiffs resided in a house property owned and occupied by the parents of the Plaintiffs’ father - that is, by the deceased and her husband (Frederick Wardrop Pearson). That was the property situate at and known as 59 Gale Road, Maroubra. It would appear that upon his marriage in November 1951 Gordon Pearson, the father of the Plaintiffs, together with his wife Judith Pearson, entered into residence in the house property of his parents. That property was divided into two separate dwellings (which were referred to in the evidence as “flats”), each with a separate entrance. The younger couple and, after the birth of each child, their two children, occupied the front flat, whilst the older couple (the Deceased and her husband) occupied the rear flat. A separate household was maintained in each flat. 11    Each of the two flats was totally separate. However, there were frequent visitations by the younger couple and, in due course, their two children, to the older couple in the rear flat. 12    At various times, both immediately before and during the period of occupancy by Gordon and Judith Pearson in the Gale Road property, renovations and extensions were effected to that property. At least some of the cost of those renovations and extensions was provided by Gordon Pearson. 13    In July 1977 the Plaintiffs (who were at that time aged respectively about 23 years and about 20 years) and their parents moved from the Gale Road flat to a house property at 47 Johnston Parade, South Coogee. The mother of the Plaintiffs had received an inheritance from her own father, and that money was used towards purchase of a block of land upon which the Plaintiffs’ parents subsequently constructed a residence. 14    After the Plaintiffs and their parents moved from Gale Road to Johnston Parade they still maintained close and affectionate contact with the Deceased (her husband Frederick Wardrop Pearson having died in October 1976). 15    There is no doubt that the Deceased (and her husband, during his lifetime) gave practical and, on occasion, financial assistance to their son and daughter-in-law and to their two grandchildren, especially by way of purchasing school clothes, providing meals on occasion, regularly taking the grandchildren to their country seat (which was a farming estate located at Kurnell). That assistance to the Plaintiffs continued throughout their school days, and, to an extent, into the period of their tertiary education. 16    The parents of the Plaintiffs separated in mid-1979 and they subseuqently divorced in 1980. Upon their separation the Plaintiffs’ father, Gordon Pearson, moved back to the Gale Road property, and resumed occupancy of the front flat, in which he and his former wife and their children had resided for 26 years until mid-1977. It would appear that after the return of Gordon Pearson to the Gale Road property an internal door was opened in the common wall between the front and the rear flat, thus facilitating communication between what had previously been totally separate units of accommodation in that property. 17    The evidence discloses that the Deceased (who was very much the matriarch of the family) was extremely upset by the fact of the separation and subsequent divorce of her son. It would appear that after that separation, and especially after the death of Gordon Pearson on 30 April 1983, the attitude of the Deceased towards the Plaintiffs underwent a change. 18    Geoffrey Pearson had been working overseas for a period of about one year from late 1979 until 1980. Upon his return to Australia he resumed residence with his mother at the Johnston Parade property, where Jennifer was also still in residence. However, he regularly visited the Gale Road premises, where his father by that time was then residing, and assisted in the maintenance of that house property by mowing lawns, attending gardens, and performing other odd jobs. From 1980 to 1983 the health of Gordon Pearson declined, and he died on 30 April 1983. After his father’s death Geoffrey continued to visit the Deceased about once a week until some time in 1984. He continued to mow the lawns and perform various odd jobs around the house on the occasions of those visits. Since about 1984 or 1985 Geoffrey had no contact with the Deceased. 19    According to the Plaintiffs, from the time of the death of their father the attitude of the Deceased towards them changed. It would appear that from the time of the death of her son the Deceased became increasingly reclusive, and also began to suffer at least from loss of memory, if not from dementia. 20    Jennifer also continued to visit the Gale Road property regularly, about three times a week, from the time when her father returned to residence in that property until his death in 1983. 21    At the time of their divorce in 1980 Gordon and Judith Pearson, the parents of the Plaintiffs, entered into a deed, which was approved by the Family Court of Australia. One of the provisions of that deed was that Gordon Pearson was entitled to a 20 percent interest in the house property at Johnston Parade and Judith Pearson was entitled to an 80 percent interest in that property. Despite the intention of the deed that that property should be sold, it appears to have been informally agreed between Gordon and Judith Pearson that the Johnston Parade property should not be sold. Since Gordon left the entirety of his estate upon his death to the two Plaintiffs, it would seem to be at least arguable that, upon their father’s death, each of Jennifer and Geoffrey had an entitlement to a one tenth interest in the Johnston Parade property. 22    However, it would appear that towards the end of his life Gordon Pearson agreed with Geoffrey that the Johnston Parade property should be transferred into the name of Mrs Judith Pearson. There was some suggestion in the evidence of Geoffrey that he had raised such proposal with his sister, and that she was not opposed to that course. Nevertheless, Jennifer did not have the opportunity of obtaining any legal advice in this regard. After the death of her former husband, Judith Pearson, as the surviving joint tenant of the Johnston Parade property filed a Notice of Death, and in consequence became the sole registered proprietor of that property. 23    Judith Pearson, who still resides in the property at 47 Johnston Parade, and who gave evidence at the hearing of the present proceedings on behalf of her two children, stated under cross-examination that she did not recognise any claim by Jennifer to an interest in that property. Nevertheless, it remains arguable that at least Jennifer has a present entitlement to a 10 percent interest Johnston Parade, although, in the light of the close and affectionate relationship which appears to exist between Jennifer and her mother, it is most unlikely that Jennifer would seek to enforce that entitlement during their mother’s lifetime. 24    It was submitted on behalf of the Plaintiffs that practical and financial assistance by the Deceased of the nature which I have herein described constituted partial dependency by each Plaintiff upon their grandparents and, after the death of their grandfather, upon the Deceased. 25    However, I am of the view that where, as here, the Plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the Plaintiffs, the mere facts that gifts or benefits were given, either occasionally, or even on a regular basis, by the grandparents is not sufficient to establish that the Plaintiffs were partly dependent upon their grandparents. (This concept of dependency was considered by the Court of Appeal in Petrohilosv Hunter (1991) 25 NSWLR 343 at 346 per Hope AJA; see also Re Fulop (1987) 8 NSWLR 679 at 682; Ball v Newey (1988) 13 NSWLR 489 at 491.) 26 The conclusion which I have just expressed is of itself sufficient to dispose of the proceedings, since, unless the Plaintiffs can establish partial dependency upon the Deceased, they are not eligible persons. They thus lack the standing to bring the present proceedings, and in consequence the summons must be dismissed. 27 If, however, contrary to the conclusion which I have just expressed, it were to be established that either or both of the Plaintiffs was partly dependant upon the Deceased, then it would follow that such Plaintiff would be an eligible person in relation to the Deceased, and thus would have the standing to bring the present proceedings. 28 It is appropriate, therefore, that, despite the primary conclusion which I have already expressed, I should set forth my conclusions and views concerning other matters which arose in the present proceedings. 29 I will proceed to consider firstly the claim of Jennifer Margaret Pearson. 30 Jennifer (who was born on 16 February 1957) is presently 43 years of age. She married in 1983 and subsequently divorced in 1990. Jennifer has a daughter, Lauren Louise Howells, who was born on 18 December 1985, and who is now 14 years of age. On account of Jennifer’s health problems (to which I shall shortly refer), Lauren has been residing with her father, David Howells, since 1986, although Jennifer has maintained some contact with her. 31 After leaving school in about 1975 Jennifer studied Arts at the East Sydney Technical College and at the Alexander Mackey College of the Arts, receiving a Diploma in about 1980. 32 From about 1982 until about December 1984 Jennifer received counselling on a weekly basis from Dr Yvonne White, a psychiatrist. In 1986 she was admitted to the Rozelle Psychiatric Centre for treatment for two days. Since then she has been on a number of occasions admitted to hospital for psychological treatment for periods ranging from one night to three months. I shall shortly refer to the evidence of her treating doctor, Dr Thomas Oldtree Clarke, consulting forensic psychiatrist. 33 Jennifer receives injections of an anti-depressant drug Zuclonthicsol. That drug is administered to her every two weeks by a psychiatric nurse from the Bondi Community Health Centre. In 1998 Jennifer was hospitalised in the Prince of Wales Hospital from May until August. In addition to her psychiatric problems Jennifer also suffers from bronchitis and asthma, and frequently experiences severe bouts of coughing, which last for up to fifteen minutes. While suffering from influenza she has great difficulties in breathing, and at times requires medical treatment to assist her in breathing. She was last hospitalised in July 1999. 34 Following her graduation in 1980 Jennifer obtained employment at the Art Gallery of New South Wales, selling tickets to various exhibitions. That employment was not of a permanent nature, and continued only for the duration of each exhibition. In about 1984 she obtained employment as a part-time sales assistant at the Fletcher Jones store at Bondi Junction. Subsequently she worked for a period as a part-time demonstrator in supermarkets. That work was of an uncertain nature and required Jennifer to provide her own transport. Jennifer was unable to have her motor vehicle registered until she received a loan of $900 from her mother for that purpose. Apparently that loan has not yet been repaid. 35 I have considerable sympathy for the situation in which Jennifer finds herself. She suffers a psychiatric disorder, which has been variously described as manic-depressive psychosis, schizophrenia and schizo-affective disorder. Not only the nature and content of her evidence, but the manner in which that evidence was presented, fully satisfied me of the genuineness of that condition, and of the remoteness of any likelihood that she would be able to resume remunerative employment on even a part-time, let alone a full-time, basis. The medical evidence from Dr. Thomas Oldtree Clark, consultant forensic psychiatrist, who has been seeing and treating Jennifer since 1989, fully supports the conclusion which I have just expressed. 36 Dr Clark expressed the view in his report dated 17 January 2000 that Jennifer suffers a chronic mental illness and is unable to live life unsupported in the community; she needs continuing support. Dr Clark expressed his psychiatric diagnosis by saying that Jennifer has a chronic hypomanic state, which relapses into mania, and that she was at the time of his report in a florid episode of mania. Dr Clark’s opinion was summarised as follows,

Jennifer has a chronic mental illness manifested by attacks of euphoria and irritation, known as manic episodes or a manic-depressive psychosis in the past, the modern terminology being Bipolar Disorder.

This necessitates she take potent tranquillising medication. She should continue this for the foreseeable future.

She is unlikely to be able to hold down a job in the future. She is incapable of any work at present.

37 Jennifer is in very poor financial and material circumstances. She lives in a very basic one bedroom home unit situate at and known as 3/18 Blandford Avenue, Waverley. That home unit has an estimated value of about $230,000 - $240,000 and is subject to a mortgage upon which an amount of $34,000 is outstanding, which Jennifer is repaying at the rate of $260 a month. She has debts totalling a little over $22,000 (being a personal loan from the St George Bank, originally $3,000 but upon which about $2,100 is presently outstanding, and loans from her mother totalling about $20,000). Jennifer’s mother is paying Jennifer’s costs of the present proceedings. Her only income consists of a disability pension in an amount of $360 a fortnight. 38 Jennifer has difficulty in meeting her outgoings, including the purchase of such necessities as food. From time to time she receives assistance from the Salvation Army and the St Vincent de Paul Society. She also receives assistance, both financial and by way of food and other household necessities, from her mother. 39 Her lifestyle is one of extreme frugality. 40 Since Jennifer asserts that she is an eligible person only within paragraph (d) of the definition, it is necessary for her, pursuant to section 9(1) of the Family Provision Act, to establish that there are factors which warrant the making by her of the present application. 41    Jennifer had a close and affectionate relationship with the Deceased throughout a lengthy period. The relationship, however, came to an end as a result of the separation and subsequent divorce of her parents. Those were events which the Deceased greatly resented, as she also resented the fact that upon that separation the Plaintiffs each continued to reside with their mother rather than with their father, the son of the Deceased. 42    In my conclusion factors which warrant the making by Jennifer of the present application include the forgoing relationship between Jennifer and her grandmother (which would establish her as a natural object of testamentary recognition by the Deceased), as well as Jennifer’s medical and psychiatric condition, and the fact that she is, for all practical purposes, unemployable, and the very unsatisfactory state of her financial and material circumstances. 43    Jennifer has clearly established need. Were I (contrary to the primary conclusion which I have already expressed) to be satisfied that she had been partly dependent upon the Deceased, I would propose an order providing for her a legacy in an amount sufficient to enable her to discharge the mortgage on her home unit and her various debts, to provide her with a fund to meet contingencies and to enhance her very frugal lifestyle, and to provide her with some additional income. An appropriate amount for such a legacy would be $150,000. (The financial and material circumstances of Cheryl Ann Lundin, who, in the events which have happened, is the sole beneficiary under the will of the Deceased, and is the daughter of the Deceased’s daughter Marjorie Isabel Lundin, are such as would not have the effect of reducing, let alone extinguishing an order for provision for Jennifer in the foregoing amount). 44    I turn now to a consideration of the claim of Geoffrey. 45    Geoffrey owns, conjointly with his de facto partner (he holds nine-tenths, she holds one-tenth), their house property at 29 George Caley Place Mount Annan (which is unencumbered and which, according to evidence filed on behalf of the Defendant, has a present value of $375,000). He also owns two other pieces of real estate (one at Marulan, a farming property of 32 acres, which is subject to a mortgage upon which about $60,000 is presently outstanding, and which is owned equally by himself and his partner, has a value of $150,000; the other, at Bullaburra, has an estimated value of $50,000-$55,000). 46    In addition, Geoffrey owns livestock, consisting of a flock of Alpaca sheep (to which he ascribes a value of $5,000), furniture and household contents (to which he ascribes a value of between $5,000 and $10,000), a 1997 Commodore motor vehicle (to which he ascribes a value of between $10,000 and $15,000), and savings in an amount of about $1,000. 47    The residence standing upon the Mount Annan property is about five years old. According to Geoffrey it requires repairs, including painting ($10,000), restoration of damage effected by termites ($5,000) and treatment for termites ($4,500). 48    Geoffrey, who was born on 12 January 1954 and is now 46 years of age, has tertiary qualifications in electrical engineering. After his graduation from the University of New South Wales in 1979 he has essentially been employed as a professional engineer. However, in early 1998 he was retrenched from a position which he thought would be permanent. He worked on a contract basis for about 17 months thereafter, and was unemployed from mid-1999. For the second half of 1999 Geoffrey was engaged part-time as a consultant by his previous employer. He has received no income since the end of 1999, and his attempts since then to obtain employment have been unsuccessful. 49    Geoffrey’s de facto partner (with whom he has lived in a de facto relationship for ten years) is employed as a nursing unit manager for the surgical ward at Campbelltown Hospital, receiving an income of $50,000 (gross) a year. Apart from her interest in the house property at Mount Annan, her assets are a conjoint interest with Geoffrey in the property at Marulan, and a Holden Commodore motor vehicle (1987 model, having an estimated value of $2,500). It is the desire of Geoffrey’s de facto spouse, who is almost 57 year of age, to retire within the next one or two years. 50    It was submitted on his behalf that Geoffrey’s employment and his future employment prospects were not certain. That is true. However, when he is employed he earns a substantial salary. Further, Geoffrey has superannuation entitlements in amounts presently totalling about $62,000 (although at least the larger of those entitlements is not available to him until he attains the age of 55 years). He also holds shares in listed companies having a present value well in excess of $30,000. (In this latter regard, it is appropriate to note that neither those shares in listed companies, nor the property at Bullaburra (having an estimated value of $50,000 - $55,000) were disclosed in Geoffrey’s evidence in chief, and the existence of those assets emerged only during his cross-examination.) 51    Even if (contrary to the primary conclusion which I have already expressed) I were to be satisfied that Geoffrey had been partly dependent upon the Deceased, and even if I were to be satisfied that there were factors which warrant the making of the application by Geoffrey (those factors including a close and affectionate relationship between Geoffrey and his grandmother), it is abundantly obvious that Geoffrey has not established need in any relevant sense. He has not been left without adequate provision for his proper maintenance. In consequence, his claim must be dismissed. 52    It follows from the foregoing conclusions that the following orders should be made:

1. I order that the summons be dismissed.

2. I order that the Plaintiffs pay the costs of the Defendant.

3. The exhibits may be returned.

4. Order that the Defendant be entitled to retain out of the estate of the late Edna Annie Pearson the difference between the amount of the costs of the Defendant on the party and part basis which he might recover from the Plaintiffs and the costs of the Defendant on the indemnity basis.

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Last Modified: 09/27/2000