Perry v Perry

[2009] NSWSC 212

CITATION:	Perry v Perry [2009] NSWSC 212
HEARING DATE(S):	26/03/2009
JUDGMENT DATE :	31 March 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	31 March 2009
DECISION:	Paragraph 38
CATCHWORDS:	Family Provision. Claim by adult son whose benefit under the will was postponed. Order for acceleration of benefit.
PARTIES:	Brian Leslie Perry v Brenda Joyce Perry (Estate of the late Elsie Florence Perry)
FILE NUMBER(S):	SC 2085/2008
COUNSEL:	Mr ER Graham for plaintiff Mr RN O'Neill for defendant
SOLICITORS:	Young & Muggleton for plaintiff Coleman & Greig for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 MARCH 2009

2085/08 BRIAN LESLIE PERRY v BRENDA JOYCE PERRY - RE THE ESTATE OF THE LATE ELSIE FLORENCE PERRY and ORS

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Elsie Florence Perry who died on 4 March 2007. The deceased was survived by her daughter, the defendant, and her three sons, one of whom is the plaintiff.

The will of the deceased

2 The deceased's last will was made on 15 November 2006 under which she appointed the defendant as executrix and trustee. She gave a bequest to her granddaughter, Sara Leanne Perry, of a fixed deposit of $8,900 upon her attaining the age of 25 years. The plaintiff does not seek to disturb that bequest.

3 Under the terms of the will, the real estate, being her house at Manson Street, Wentworthville was to be valued at her death and this is agreed and the parties have indicated that the property had a value at the date of death of $435,000. It was then given to the defendant, Brenda Joyce Perry, on the condition that she pay to the estate within five years of the death of the testatrix an amount equal to one third of the value of the property and as determined by that valuation. There were provisions in the will as to what was to happen in the event that the defendant either did not pay the amount, or died within five years of the death of the deceased, in which event the real estate and household contents were to form part of the residue of the estate.

4 If the defendant paid the said sum of one-third of the value of the property, then that sum was to be paid to the deceased's three sons, Anthony Robert Perry, Malcolm Ian George Perry, and the plaintiff, Brian Leslie Perry in equal shares as tenants in common. In the event that the defendant did not fulfil the conditions the property then formed part of the residue of the estate and the well directed that two-thirds of the residue would go to Brenda Joyce Perry, the defendant, and one third in equal shares as tenants in common to the three sons.

Assets of the Estate

5 The present assets of the estate include:

(1) the real estate at Wentworthville valued at the date of death at $435,000.
(2) a deposit with Australian Capital Reserve with a current value of about $8,900.
(3) Jewellery and personal effects. These have been distributed to Brenda Joyce Perry.
(4) St George bank account. After payment of the funeral expenses and the real estate valuation for the purposes of probate, the balance in this account was distributed as to $1,212.62 as to Anthony Robert Perry and Malcolm Ian Perry, and $1,212.59 to the plaintiff Brian Leslie Perry.

6 There are debts due to the defendant in the sum of $5717 53 and the costs to date total, for the defendant $50,000, and for the plaintiff $35,000.

Family History

7 The deceased and her husband had four children, Brenda who was born in September 1947, Anthony born in February 1952, Malcolm born in September 1956 and the plaintiff, Brian, born in September 1957. Malcolm left home at about 18 years of age in about 1964 and on 22 December 1967 the deceased’s husband died. In 1971 Anthony left home when he was 18 years of age; then he remained away until 1981, and came home for a while. He then left when he married in 1985.

8 In 1972 the plaintiff left Greystanes High School at the age of 15 years. In 1978 he was involved in a significant motor vehicle accident and he was in hospital for sometime thereafter. He eventually got back to work and worked for some 15 years with the Parramatta City Council. In the early 1990s he took voluntary redundancy from that organisation.

9 In 1997 he settled a Workers Compensation action against the Council and others for injuries sustained during his period of employment. He married in March of 1999 but that was a short marriage of some six months duration. In 2001 he suffered an injury to his right wrist while working at a nursing home in Queensland. He then recovered some damages against his employer and he has not worked since that time.

10 On 15 November 2006 the deceased made her last will and she died on 4 March 2007. The summons was filed within time.

Eligibility

11 The plaintiff being a son of the deceased is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

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

The plaintiff’s situation in life

12 The plaintiff is 51 years of age, single with no dependants. He lives in a Housing Commission bed-sitter in Lalor Park. He has lived on a disability support pension since 2001. It is currently $571 per fortnight. After rent deductions he has $200 a week for all his expenses. He has suffered from a number of medical problems. They include a heart attack in his mid-20s, another in his 40s, and a stroke in 2002. When he was 20 years of age he was in a car accident and was in rehabilitation some six months.

13 The plaintiff had difficulties with learning at school and left at a young age when he was told he would not achieve the School Certificate. He has worked in manual jobs all his life, the longest being that with the Parramatta City Council for 15 years.

14 The plaintiff has lived with the deceased over a number of different periods. He started to live away from home in 1984 when he moved out to live with a friend. He was home for a few months in 1985 and left again. In 1996 he moved to Melbourne for about nine months. He came home in 1998 for a short period. He married in 1999 and moved to Queensland. The marriage, unfortunately, only lasted for about six months.

15 After a short time with his brother he returned to Queensland in 2001 where he stayed with friends. While there he spent $42,000 from the settlement of his Workers Compensation claim in converting a garage to a flat. He lost this entitlement when the couple who had the property separated and the premises became no longer available to him.

16 The plaintiff while he was at home had paid board and did some maintenance work for which he was paid. Some of the criticisms made at the plaintiff concern the fact that he squandered large sums of money which had come his way from time to time. He had received about $88,000 from his car accident and some of this, probably about $30,000, was expended in the repayment of various debts to various family members and others.

17 He declined an invitation to buy a business or to lease a home with the funds he had left. He eventually spent, as no doubt he was entitled to do, the money he received for his pain and suffering.

18 When he left his employment with the Parramatta City Council in the 1990s he received a redundancy of about $15,000. He started proceedings, which were settled in 1997, when he received $50,000. He paid $18,000 to Social Security and the balance of $32,000 he used to move to Melbourne and buy some furniture. He does not seem to have put in place a plan which was put to the Court, to set up a lawn mowing business as a proper use of the funds which he had indicated to the Court he would do.

19 In Queensland he had a recovery of $50,000 when he was injured at work at a nursing home and he paid about $10,000 in repayment of debts due to his mother and his siblings. The balance was used for the ill-fated venture into a granny flat at his friend's home.

20 The plaintiff’s only asset at the moment is a 1990 Nissan motor car which the plaintiff finds hard to use because of his tall stature and large size. Although the deceased regarded the plaintiff as having lived a wandering life, the evidence does not suggest any difficulties between the plaintiff and the deceased of any substantial moment, although the deceased plainly was tired of his comings and goings.

21 He has generally not been successful in life in part due to his lack of education. He is unlikely to ever return to paid employment, even though he is 51 years of age.

22 It is necessary to have regard to the situation in life of any other persons having a claim on the bounty of the testator. In this case it is the deceased's other children. One of them, Anthony, aged 57 years has given no details of his financial circumstances or his relationship with the deceased. Accordingly, the Court can assume that he does not want the Court to take these matters into account in considering the claims of the plaintiff.

The situation in life of Malcolm Perry

23 Malcolm is 52 years of age and is married. He and his wife live on their acreage in the Hunter Valley where they run a business growing native plants for cut flowers. They are building their home on the property. He and his wife have a Volkswagen Transporter and he has a small amount of superannuation. They live on his wife wages from her work four days a week. He had a normal relationship with his mother, at times doing the mowing for her. He did not contribute to the assets of the estate.

The situation in life of Brenda Perry

24 Brenda is 61 years of age, single with no dependants. She lives, as she always has done, in the deceased's home. She works as a service support officer earning $1,450 net per fortnight.. Her expenses are just under $1,000 per fortnight.

25 Her assets comprised a car worth $20,000, a small number of shares and cash of just under $5,000. Recently she cashed in most of the superannuation and has it in a separate bank account totalling $128,000. The balance of her superannuation is $11,596.

26 She finds it painful to work as she suffers from carpal tunnel syndrome and has pain in her hands. She has high blood pressure and suffers from depression, which is being treated.

27 She has, of course, during the period she has been at home contributed to the cost of running the home and also to its maintenance. For instance, when she was there she always paid the contents insurance, the telephone, she always paid board, which she continued to pay up until her mother's death. She would also contribute to the electricity.

28 Over the years she has done a number of improvements to the house and they include a number of things like awnings and shutters, renovations to the bathroom, air-conditioning through the house, security system and enlargement of some of the rooms by knocking down walls, renovations to the kitchen, new carpets, installation of a kitchenette and other matters, generally in the sum of about $36,000 over the years.

29 She also purchased many of the furnishings, including bedroom furniture, and she has continued to obtain various white good items, and has bought televisions and so on. She did not contribute to the mortgage because it was her mother's pride that she pay out the mortgage, which she eventually did.

30 She would also clean the house and do maintenance such as spring cleaning, washing curtains and matters of that nature. She also transported her mother throughout her life. Her mother never drove and, with some help from her brother Tony, she took her to all appointments and usually did the food shopping.

31 About a year before she died the deceased had already started to deteriorate and the defendant took time off to help her. In due course she did die, as I have referred to earlier.

Discussion

32 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. It is only if this has occurred that the Court is empowered to make any change in the will of the deceased.

33 The first matter which he puts forward is that he finds his Housing Commission accommodation crowded and unattractive and he would like to buy a mobile home in a caravan park for $115,000. Such are available but evidence of the annual costs in respect of such a place were not tendered. He would also like to replace his car with a second-hand car worth $30,000 which would be much more comfortable and reliable for him. He needs new white goods, air-conditioning, television and money to exist to a basic level above that which he has on the pension.

34 So far as the suggestion that he have funds for a house, the principles in this regard were recently dealt with by Gzell J in McGrath v Eves [2005] NSWSC 1006. He referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

“67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLF 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.
68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109] - [110], White J having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this have occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2--3] NSWCA 352.
69. White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estate is ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her well being. Thirdly, the applicant did not have any need in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.
70. It was submitted that Mayfield was distinguishable by the absence of these features in instant circumstances and because the appellant in Mayfield had filed no financial evidence had put forward no competing financial or other needs for the Court to consider.
71. And there are differences of fact between Mayfield and the present case. But they do not have effect central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32] Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision that Court ought to order."

35 In the circumstances of this small estate where the main competitor is in a situation where she also has very limited capital and where she spent her life with her mother and assisted in the ways I have mentioned, I think it is inappropriate for the plaintiff to expect to be provided with funds for an unencumbered home which the evidence does not show he could afford to maintain.

36 The plaintiff is in a desperate situation and, apart from a car and household items, needs a small sum to help him cope on the pension.

37 It seems to me that the most appropriate thing to do -- and this will do the least violence to the testator's will -- is to accelerate his entitlement under the will to provide some present relief. The defendant can afford this and keep the house for the time being, which is larger than her present needs. She can no doubt maintain it for some years until she decides eventually what she wishes to do in the future.

38 The orders I make as follows:

1. In lieu of the provision in favour of the plaintiff in clauses 6.4, 6.5 and 8 of the will of the deceased, that the plaintiff received a legacy of $48,333.
2. Such legacy to be paid within three months of today's date and if not paid to carry interest at the rate provided for under the Succession Act as and from the expiration of a period of three months.
3. Consequent upon order 1, I vary the will of the deceased in the following manner:
(a) I delete from clauses 6.6 and 8 the name of the plaintiff Brian Leslie Perry.
(b) I substitute in clauses 6.5 and 6.64 for "one third" the words "two-ninths”.
(c) I substitute in clause 8 (a) for "two thirds" the words "seven ninths".
(d) I substitute in clause 8 (b) for the words "one third" the words "two ninths".
4. I order the plaintiff's costs on an ordinary basis and the defendants on an indemnity basis be paid or retained out of the estate of the deceased.
5. The exhibits can be returned.

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