Pincius v Wood

[1998] TASSC 46

46/1998

PARTIES:  PINCIUS, Debbie Leone
  v
  WOOD, Judith Ann
  PUBLIC TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M281/1997
DELIVERED:  1 May 1998
HEARING DATE/S:  20 April 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Succession - Family provision and maintenance - Failure by testator to make sufficient provision for applicant - Duty of testator - Duty to children - Adult daughter.

Singer v Berghouse (1994) 181 CLR 201, followed.
Bosch v Perpetual Trustee Co Ltd [1938] AC 463, applied.
Testators Family Maintenance Act 1912 (Tas), s3(1).
Aust Dig Succession [308]

REPRESENTATION:

Counsel:
             Applicant:  A L Valentine
             Respondent:  P Turner
Solicitors:
             Applicant:  Ware & Otlowski
             Respondent:  Public Trustee

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  46/1998
Number of pages:  5

Serial No 46/1998
File No M281/1997

DEBBIE LEONE PINCIUS v JUDITH ANN WOOD and PUBLIC TRUSTEE

REASONS FOR JUDGMENT  COX CJ

1 May 1998

This is an application by a married daughter of the deceased testator for provision to be made, pursuant to the Testators Family Maintenance Act 1912 ("the Act"), s3.

By his will dated 8 May 1997, the deceased, Roderick Bryan Davis, cancelled all prior wills, appointed the Public Trustee his executor and trustee and left the entirety of his net estate to the first named respondent who is his niece.  He died a little over three weeks later on 31 May 1997.  In August 1995, he had made a will in favour of the applicant, making her his sole beneficiary with a gift over to those of her children who should survive him if his daughter predeceased him.  On 28 May 1997, he revoked that will and left his whole estate to the Catholic Archbishop of Hobart for the time being for the use and benefit of St Joseph's parish, Macquarie Street, Hobart.  The value of the estate is approximately $14,000 only.

The applicant is 37 years of age, her husband is a sheetmetal worker whose net income per annum is about $37,000 and they have a daughter and son aged, respectively, 12 and nearly 8 years.  When the application was filed last year, the applicant was in receipt of an income of about $3,000 per annum as a school holiday programme co-ordinator, working for some eight weeks during school holidays.  Since the beginning of this school year, that work is no longer open to her because funding is no longer available and she has no independent income.  The couple own their own home, worth approximately $100,000 and it seems it is unencumbered.  The two children are educated in private schools, the current fees amounting to $1,905 per annum in all.  Household expenses tabulated by her amount to $20,332 per annum, but she has not shown such common items as the cost of clothing, including school uniforms, bus fares for the children, any car expenses, other than a loan repayment to Toyota Finance which, I infer, is for a family car (for they live at Old Beach) and household insurance.  They have no other assets of any significant value.

The deceased was married twice.  The first marriage ended in divorce in the 1950's and, as the applicant deposes to having a half sister in Queensland who survived the deceased, but who is unknown to the applicant, I take it that she was a child of that marriage.  The deceased was also survived by a brother of the applicant who is 28 and by his second wife, the applicant's mother.  She and the deceased separated in about 1980, whereupon she came to live with the applicant and her husband.  The applicant lost contact with the deceased after her parents' divorce in late 1983, but he made contact with her again in 1990, whereupon she visited him at his home on a regular basis with her two children.  In 1990, the deceased's health deteriorated and in December of that year he became a permanent resident of Bishop Davies Nursing Home at Kingston.  The applicant visited him, on average, about once a week and brought him home cooked meals.  She also provided assistance in purchasing items for his use and comfort and put labels on his clothing.  In an affidavit filed in support of the claim, the Director of Nursing of the Home said that the applicant visited the deceased on a regular basis, once or twice a week for approximately the last two years of his life and often brought her children with her when visiting.

As to the reasons why the deceased revoked his provision for the applicant and left his small estate, first to the Church and then to his niece, the Director of Nursing said this in her affidavit:

"10Just prior to his death the deceased told me that he had changed his Will again because Mrs Pincius's husband had said something that really upset and offended him.  The deceased did not elaborate what was said or under what circumstances.  I am not sure exactly when the deceased told me this, but it was either on the day the Will was signed or after it was signed or several days later.  The deceased did not tell me what the changes to his Will were.  I only witnessed his signature."

Although she described the will as one which she had witnessed on 8 May 1997 (that is, the last will), her signature does not appear on that will, but appears on that of 28 April 1997 in favour of the Church.

The solicitor who took instructions for that will, recorded the following:

"Discussed with Mr Davis potential ramifications of dealing with estate without any gift to his children.  He recounted that

1         His daughter had very little to do with him.  He receives only child cards from his grandchild.  He has had no regular contact with her for 8 or 9 years and now only since his wife died.  He has also given her money over the years [sic] recent months.

2         He has not seen nor heard from his son for many years — his son assaulted him on at least 3 occasions.  Testator determined to make will in favour of St Joseph's."

The reference to the death of his wife is confusing as, according to the applicant's affidavit, the deceased was survived by her mother, his second wife.

The first named respondent, in her affidavit, stated that in telephone conversations with her, the deceased had "expressed disappointment with Mrs Pincius on a number of occasions, and generally to the effect that she wanted things, especially money, from him."  She also said that about two weeks before his death he had asked her to be his next-of-kin.  She was taken aback and was not sure what he meant by this and asked whether the applicant was his next-of-kin to which he said words to the effect, "No, I have wiped her."

The first named respondent has not filed an appearance, but the Public Trustee has filed an affidavit by her in which she says she wishes to take no part in the proceedings, but wants the Public Trustee to defend the will and wishes the Court to determine the application.  She is 67 years old and married to a retired builder aged 77.  They enjoy good health, live near Sydney in their own home, valued for rating purposes at $106,000, and have three adult daughters who are not dependent on them and who live away from home.  Their sole income is a service pension of $635.15 per fortnight.  They have about $5,000 saved, a car of about that value, and household furniture and effects.  She has 125 shares in a company called Energy Resources of Australia, but "they are not worth much".  Their fortnightly expenses exhaust their income.  She is the daughter of the deceased's sister.  She knew him well and says he was like an older brother to her.  The family lived in Sydney and the respondent, due to her own father having Tuberculosis, lived with her grandparents for a large part of her childhood, during which time the deceased lived in the same house until he was married in the 1940's.  Thereafter he lived in the house next door until his first marriage broke down in the 1950's and he moved to Tasmania.  Up to that time she saw him frequently but thereafter they both lived permanently in different States.  She saw him only twice since then, the first time being about twenty-five years ago when she visited Tasmania on holiday and the second about ten years ago, when he visited his sister in New South Wales.  In that time, they did not keep in contact, but she knew what he was doing through family contacts.

They resumed contact by telephone about the time he entered the Nursing Home in 1990.  Throughout the next six to seven years until his death, they communicated by telephone about once or twice a month, speaking about family matters.  Having agreed to his request to being nominated as his next-of-kin, she was contacted by the funeral director on his death but, as she was financially unable to attend the funeral, asked the applicant to make the necessary arrangements which she did, albeit reluctantly, so the first named respondent claims.  The deceased's ashes were sent to her and she made arrangements for them to be interred in his parent's grave as he desired.

The Act gives me jurisdiction to make provision out of the estate in favour of the applicant if she establishes that in terms of the deceased's will she is left without adequate provision for her proper maintenance and support after his death.  If this precondition is established, I then have a discretion as to what provision should be made.  This is often called a "two stage process".  In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ said in their joint judgment at 209 - 210:

"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 Ltd [1938] AC 463 at 476. 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."

In Bosch v Perpetual Trustee Co Ltd (supra) at 478 - 479, Lord Romer, delivering the judgment of the Privy Council said:

"Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father."

In considering the applicant's financial position, I note that, apart from a small income from part time employment which is now no longer available to her, the applicant is solely dependent upon her husband.  They have a home of modest value, an income of $37,000 per annum and the responsibility of raising two children whose education they had determined, prior to the deceased's death, should be undertaken in private schools.  They face several years of substantial expense in providing this kind of education for their children.

The relationship between the applicant and the deceased was not a transitory one.  Although there was a lengthy period of estrangement, apparently as a result of the differences between the deceased and the applicant's mother, the father/daughter relationship was restored in 1990 and persisted harmoniously until shortly before the death of the deceased.  Even then, the evidence does not reveal whether he told the applicant he had changed his will to exclude her, or that he gave any reason to her for doing so.

By the Act, s8A, the Court may have regard to the deceased's reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision for the applicant and may accept such evidence of those reasons as it considers sufficient, whether that evidence would otherwise be admissible in a court of law or not.  Because of the size of the estate and the first named respondent's decision not to take an active part in the conduct of the proceedings, none of the affidavits was tested by cross-examination.  I find that in the last weeks of his life the deceased became disapproving of the applicant because he thought her importunate and determined to exclude her and her children from his will for that reason and possibly also because he was upset by something that her husband had said to him.  Although s8A permits evidence of the testator's reasons to be given and enables the court to act upon that evidence, even though it is not otherwise admissible, the section does not render that material evidence of the truth of the matters said (Dickey, Family Provision After Death, 128).  It does not advance the general law on the point which is that "Such a statement is admissible as original evidence to prove the knowledge, motive or other state of mind of the testatrix should that be relevant" per Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1978 - 1979) 143 CLR 134 at 149. A reason based on a belief proved to be mistaken may well be relevant in support of an applicant's claim. Thus if the reason advanced for inclusion is a mistaken belief in the prosperity of an applicant who enjoyed a good relationship with the testator that could properly be taken into account and would be a strong reason for interfering with the will. In this case I am unable to say whether or not the deceased had any proper basis for forming the beliefs which led him to change his will.

By the Act, s8 the Court may refuse an application if the character or conduct of an applicant is such as, in the opinion of the Court, should disentitle him or her to the benefit of any provision under the Act.  It has not been suggested that the applicant in this case should be disentitled pursuant to this section.  In Delacour v Waddington (1953) 89 CLR 112, the High Court expressed the view that the "'character or conduct' envisaged by [the equivalent section in the New South Wales Act] must be taken to refer to character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator" (at 127). However, even if the deceased's reasons, mentioned above, were based on fact, the applicant's conduct which led to the deceased making a new will could not, in my view, be said to be of that character, still less could the alleged offensive remark of her husband disentitle her.

As to the relationship between the deceased and the first named respondent, it was a fairly close one initially but, for nearly forty years before the resumption of the contact by telephone in 1990, there had been no regular communication and only two occasions for face to face meetings.  Thereafter, they communicated, once or twice a month, for about 6½ years by telephone.  Without intending any criticism of her, I note that there is no suggestion that the conversations were anything other than opportunities for a friendly chat which both enjoyed.  It is not suggested that the first named respondent in any way inconvenienced herself by engaging in them, or that she contributed in any other way to the deceased's needs or to his enjoyment of life.  While the first named respondent had a legitimate claim on the deceased's bounty by virtue of their early friendship and the resumption of it in the last years of his life, the applicant, in my view, had a stronger one by virtue of her status as his daughter and the regular assistance and company which she supplied to him over the same period, at some inconvenience to herself, having regard to the distance between her residence and the Home where the deceased lived. 

While the applicant's position is not penurious, her means are modest and she and her husband have several years ahead of them before their children have ceased to be dependent upon them.  Her position is similar to that contemplated by Fullagar and Menzies JJ in their joint judgment in Blore v Lang (1960) 104 CLR 124 at 135 where they said:

"In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit."

That was a case, however, where the applicant was one of three children who, for no apparent reason, received nothing under the deceased's will, the benefit of which was, for the most part, distributed among the other five children.  It was, furthermore, a relatively large estate and sufficient to cater for the legitimate claims of more than one claimant.

In Coates v National Trustees Executors and Agency Company Limited & Anor (1956) 95 CLR 494, an only son was provided by the testatrix, who had left a very large estate, with a very modest income, while the residue was left to a number of public charities. Dixon CJ, upholding the son's appeal for greater provision than that made by the trial judge, referred to the absence of any evidence that grounds existed which might justify or explain the course taken by the appellant's mother in her will. At 510 he said:

"No suggestion comes from any quarter that the appellant had done anything to give legitimate ground of displeasure to his mother or to arouse in her a want of confidence in his future use of any property that might be bequeathed to him."

That the applicant incurred her father's displeasure seems clear from the action he took in rewriting his will and from his instructions to its draftsman given at that time.  Whether he had legitimate grounds for doing so, has not been established.  He was an elderly man who had been in poor health for several years and was within weeks of his death.  The applicant described him in her affidavit as "emotionally demanding in the last few years of his life".  Although the Court is not authorised by the Act to rewrite the terms of the will by reason of some notion of what is fair in the circumstances, the applicant's moral claim is undiminished, having regard to the absence of objectively established legitimate grounds for excluding her as a beneficiary.  In my view, her circumstances were such that the failure of the deceased to include her in his will has resulted in her being left without adequate provision for her proper maintenance and support after his death. 

I must now decide what provision to make in the exercise of my discretion.  Through her counsel, she seeks only half of the net estate.  It is of such little value that even the whole of it would provide only a modicum of relief to her, but as she is content to share it with the first named respondent, I shall order accordingly.