Robinson v SORGIOVANI - [1999] WASC 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ROBINSON -v- SORGIOVANI & ORS [1999] WASC 53

CORAM: WHITE J

HEARD: 19-21 MAY 1999

DELIVERED : 9 JUNE 1999

FILE NO/S: CIV 2358 of 1997

MATTER :Inheritance (Family and Dependants Provision) Act 1972
and
The Will of GEORGE EDWARD ROBINSON late of 144 Lowlands Road, Mardella, in the State of Western Australia, Farmer (DEC)

BETWEEN: ALAN GEORGE ROBINSON
Plaintiff
AND
JOAN IRIS SORGIOVANI
NANCY ELIZABETH HEGGE as Executors of the Will of GEORGE EDWARD ROBINSON (DEC)
First Defendants
JOAN IRIS SORGIOVANI
NANCY ELIZABETH HEGGE
GWENDA CAROL WHITE
CLIVE WILLIAM ROBINSON
MARK LEWIS ROBINSON
JASON CONRAD ROBINSON by his guardian ad litem GWENDA CAROL WHITE
Second Defendants

Catchwords:

Inheritance (Family and Dependants Provision) Act - Application by one of seven children of deceased, each an equal beneficiary under the deceased's Will for a greater share of the estate

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6(1)

Result:

Judgment for the second defendants

Representation:

Counsel:

Plaintiff:     Mr P W Nichols
First Defendants           :     Mr C E Chenu
Second Defendants       :     Mr S Penglis

Solicitors:

Plaintiff:     Granich Partners
First Defendants           :     Durack & Zilko
Second Defendants       :     Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Blore v Lang (1960) 104 CLR 124
Davey v Fairhead, unreported; SCt of WA; Library No 960088; 1 March 1996
Gibson v Perpetual Trustees Ltd, unreported; SCt of WA; Library No 960207; 19 April 1996
Goodman v Windeyer (1980) 144 CLR 490
Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995
Horton v Pyne, unreported; SCt of WA; Library No 940337; 30 June 1994
Hughes v National Trustees Executors and Agency Co of Australia Ltd (1978-79) 143 CLR 134
In re Allen; Allen v Manchester (1921) 41 NZLR 218
Johnson, As Executor of the Will of Birks v Marsh & Anor, unreported; SCt of WA; Library No 990207; 23 April 1999
Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 8 April 1999
Singer v Berghouse (1994) 181 CLR 201

Case(s) also cited:

Bosch v Perpetual Trustee Company Ltd [1938] AC 463
Coates v National Trustees Executors & Agency Company Ltd (1956) 95 CLR 494
Hawkins & Anor v Prestage & Anor (1989) 1 WAR 37
Kerr v Kerr (as Executor), unreported; SCt of WA; Library No 8845, 2 May 1991
Young v Young, unreported; SCt of WA; Library No 7626; 26 April 1989

WHITE J: This is an application by the plaintiff pursuant to the provisions of s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 in which he seeks an order that he receive a greater share of the estate of his late father, George Edward Robinson ("the testator") than the equal share bequeathed to him and his siblings in the testator's Will. The plaintiff is one of the seven children of the testator whose estate was valued at approximately $2.4 million. One of the testator's children, Noel, died of a heart attack at a young age and his share of the testator's estate will devolve upon Noel's son, Jason, a boy of some 12 years of age who resides with and is cared for by his aunt, Gwenda, who is also his guardian ad litem. By his Will, the testator bequeathed his estate to his six surviving children and to Jason, in equal shares. The share of each will be of the order of $320,000.00 if the plaintiff's claim fails.
A large number of affidavits has been filed in the proceedings and the deponents subjected to cross-examination. The second defendants put forward a schedule of the facts, which they submitted should be found to have been established by the evidence. I asked counsel for the plaintiff whether the plaintiff took issue with any of the principal findings of fact for which the second defendants contended and he replied:
"Not substantially. It's all a matter of degree. I can't take issue with them but there are matters of particularity which I would draw your Honour's attention to, and I will do before I conclude my address. There are some conclusions on the evidence, which may be helpful to your Honour. . . . I shall refer you to some documents already provided by the plaintiff which you can set against [the Principle Findings of Fact Contended for by the Second Defendants]."
In the result, I make the following findings of fact in the light of the evidence placed before me:
"The Estate
(1)The deceased, George Edward Robinson died on 23 July 1997 at the age of 85 years.
(2)Probate of the deceased's will, dated 5July 1991 was granted on 30 September 1997.
(3)On 1 May 1992 the property at 234 Spencer Road Thornlie, previously owned by the deceased and his wife, was transferred to Joan Iris Sorgiovanni.
(4)Under the terms of the deceased's will his estate was to be divided equally between his 6 living children and his grandson, Jason Conrad Robinson, the sole child of Noel Edward Robinson, who was born on 18 November 1986 and is now aged 12 years.
(5)In June 1998 a distribution of $100,000 was paid to each of the seven beneficiaries under the will. The balance of the estate, as at 12 May 1999, was approximately $1,715,000.
The children of the deceased
(6)The deceased and his wife, Eleanor Elizabeth Lilian Robinson had 7 children:
NameDate of birth         Age at trial
Joan Iris Sorgiovanni       23 April 1936                63
Nancy Elizabeth Hegge     21 December 1937         62
Noel Edward Robinson     31 March 1940     deceased
Allan George Robinson     1 November 1944          54
Gwenda Carol White        26 December 1940         52
Clive William Robinson    14 June 1950                 48
Mark Lewis Robinson      14 October 1954            44
(7)In 1948 the deceased and his family moved to a property called Mardella, south of Perth, between Serpentine and Mundijong. Mardella was a dairy farm and later a wheat farm.
The living conditions on Mardella
(8)Living conditions on Mardella when the children were growing up were basic and the lifestyle was simple. By current standards the living conditions may have been harsh but by the standards of the times they were no different from the conditions that other farming families lived under. The family finances were modest and the parents were prudent with little money for extras. The children shared bedrooms.
(9)All the children were expected to help out on the farm and around the house. Each of the children had jobs to do. These included fencing, electrical work, looking after farm equipment, milking, making and carting hay, rotary hoeing the orchard, preparing meals, washing, cooking and caring for younger children.
(10)The Plaintiff did no housework - that was for the women to do.
(11)All the children were educated at the local primary schools. Joan, Allan and Nancy were educated to the end of primary school. Gwenda, Clive and Mark were educated to the equivalent of year 10.
(12)Clive and Mark were encouraged to obtain trade qualifications as there was insufficient work on the farm to support all 4 sons. Clive undertook an electrical apprenticeship and Mark commenced but did not complete a mechanical apprenticeship. Gwenda and Nancy were also encouraged to go to Perth to work. Gwenda has no formal qualifications. Nancy trained as a nurse.
The plaintiff's financial circumstances (prior to the $100,000 distribution)
(13)Allan George Robinson is a driller and the owner, with his wife, Iris Jean Robinson, of a nursery business. Mr Robinson and his wife own a 50% interest in a property near Gingin, valued at approximately $160,000, on which Mr and Mrs Robinson owe no money. Mr and Mrs Robinson have a combined annual income of approximately $17,500 net. In addition to the property, their assets comprise a truck and drilling rig valued at approximately $3,500, a 4 wheel drive vehicle and a 1975 Holden car.
The second defendants' financial circumstances (prior to $100,000 distribution)
(14)Mrs Sorgiovanni is a divorced woman whose sole income is the aged pension. Mrs Sorgiovanni's assets comprise her home in Thomlie valued at approximately $80,000, which is unencumbered and the furnishings and fittings of that home.
(15)Mrs Hegge is a retired nursing home supervisor. Mrs Hegge's assets comprise her home in Lathlain valued at approximately $150,000 which is unencumbered, a motor vehicle valued at approximately $2,500, accumulated superannuation valued at $13,000 and approximately $13,000 in a bank account.
(16)Gwenda Carol White is married to Winston Kevin White, known as Kevin, who works as a council worker. Mr and Mrs White's assets comprise a home in Thomlie valued at approximately $90,000, which is unencumbered, and other assets valued at approximately $70,000. Mrs White does not earn an income. Mrs White is the guardian of Jason Conrad Robinson. Since 1991 Jason has lived with Mrs and Mr White.
(17)Clive William Robinson is a self-employed electrician who lives on a property at Boyup Brook which he is purchasing from his father's estate for $85,000. His income is approximately $15,000 per annum. Aside from his interest in the Boyup Brook property his assets comprise less than $5,000. Clive Robinson is divorced and has 4 children of whom one is a minor.
(18)Mark Lewis Robinson is a truck driver with Masters Dairy earning approximately $60,000 per annum. He is married with 5 children, of whom 2 remain dependent upon him for their financial support. He and his wife jointly own a home valued at $100,000 which is the subject of a mortgage. He and his wife own a 50% share in a beach-house at Lancelin, valued at approximately $80,000.
The plaintiff's contribution
(19)The plaintiff's contribution comprised:
(a)10 years full-time work on Mardella between 1958 and 1968. The Plaintiff received payments during this period.
(b)between 1968 and 1976 the Plaintiff only worked on average about 4 to 5 days per year. During 1976 to 1982 the Plaintiff spent about 1 month per year helping his father. During 1982 to 1984 the Plaintiff spent an average of 1 to 2 days per week working on the Boyup Brook property. From 1983 to 1996 (excluding 1984 to 1986 inclusive) the Plaintiff did the hay with his father and his Uncle Basil.
(c)assisting with the negotiations with the Shire of Serpentine-Jarrahdale and Coca Cola in 1983, and directing the tanker drivers at the commencement of the operation.
The second defendants' contributions
(20)Joan Sorgiovanni's contribution comprised:
(a)20 years full-time work on Mardella between 1950 and 1970
(b)living with and caring for her mother between 1984 and 1991.
(c)caring for her father between 1991 and his death in July 1997.
(21)Nancy Hegge's contribution comprised:
(a)working on the farm for 4 and 1/2 years between the ages of 14 and 18 1/2, undertaking the care of younger children and other household and domestic work.
(b)caring for her father's domestic and financial affairs since 1991.
(c)living with her father at Mardella from November 1996 until his death in July 1997.
(22)Gwenda White's contribution comprised:
(a)assisting with household chores as a child and teenager.
(b)assisting with household and farm chores as an adult when visiting Mardella on the weekends.
(c)nursing Noel Robinson in the final 20 months of his life.
(d)guardian of and caring for Jason Conrad Robinson since 1990.
(23)Clive Robinson's contribution comprised:
(a)assisting with farming chores as a child and teenager.
(b)working full-time on Mardella from 1970 to 1972.
(c)assisting with the hay in 1960-1966 and 1994-1995.
(d)from 1985 to 1997, assisting with chores at Mardella on at least a fortnightly basis.
(24)Mark Robinson's contribution comprised
(a)assisting with the farming chores as a child and teenager.
(b)working full-time on Mardella from 1972 to 1976.
(c)assisting with the hay in 1978, 1984, 1985 and 1986.
(d)holding family functions at his home.
(e)undertaking labouring work on the Boyup Brook property.
(f)assisting for some period with the arrangements with Coca-Cola.
The Coca-Cola arrangement
(25)The Plaintiff did not seek out Coca-Cola, it was the local Shire that put the Plaintiff in contact with them. The bore from which the mineral water (sic) was already down and was not sunk by him. What the Plaintiff did was to:-
(a)liaise with the Shire to obtain approval to carry out the operation;
(b)facilitate and in some cases pay for the testing of the mineral water;
(c)draft correspondence for the deceased to sign;
(d)during the initial period, meet the tanker drivers on site.
The arrangement with Coca-Cola only lasted some 2 to 3 years. There is no credible evidence as to how much the Coca-Cola contract added to the value of the Estate. What evidence there is, however, would indicate a gross contribution in the order of $40,000 to $60,000. At some stage prior to its end, supervision of the Coca-Cola arrangements were assumed by Mark".
In the course of his opening address, counsel for the plaintiff summarised the plaintiff's case as follows:
"Sir, the late Mr George Robinson began his career as a farmer in a very basic form indeed. Over the course of the years he died, leaving the substantial estate which is now referred to in the affidavit of 12 May 99. The plaintiff says that he made a material contribution to the estate and for that reason he asks the court to conclude that he should have received more than the roughly equal share of his siblings in the estate and this case is all about whether or not he added to the value of the estate.
The prime issues are, first of all, the period of 10 years that he spent working on the farm itself, maintaining its machinery, working for largely nominal wages and, secondly, the contribution he made in his capacity as a driller by discovering, drilling and setting up a mineral water well which was exploited by Messrs Coca-Cola Bottlers successfully and all of which went to the value of the estate.
Those are the main issues. The substantial issues are joined largely on the contribution that the plaintiff is said to have made to the farm. The basic case made by the defendants is that he did no more than they; that they all had a hard life; they all had to work within their ages or capacities. There is no doubt that they had a hard life. Noel died and it's impossible not to see some connection between his early death and the conditions.
The plaintiff suffered a major head injury and has been largely incapable or substantially incapable of working, though he does his best and is working as a nurseryman now, but at the end of the day the point is taken that the plaintiff made no contribution other than the rest. Issue is joined on that. Issue is joined substantially.
The main points are that, first of all, the plaintiff was of the right age to do the bulk of the work, the others were largely too young; secondly, that the plaintiff had substantial machinery skills. He kept the primitive plant and machinery of the farm operating for not only the periods in which he worked but also for periods in which he engaged in his own business as a driller and he took the responsibility of making most of the farming decisions."
In closing, counsel for the plaintiff said:
"The particular case that the plaintiff puts forward that his moral claim should have been evaluated more than his siblings is that he worked on the farm during his prime years, that he sacrificed his prime years which are normally used to build up sufficient assets to maintain a family of his own to the use of the deceased and that at the end of the day he found himself obliged to rely upon his wife's bounty to live. That is put as simply as possible."
Counsel added that the plaintiff's contribution to the estate of the testator is summarised in the last paragraph of his second affidavit, which reads as follows:
"(d) I worked at my father's farming properties over the following years:
(i)Ten years full time from 1958 to 1968. This was physically demanding work seven days per week for virtually no wages at all.
(ii)1973 - 1976. I worked only four or five days per year on the farm. This was free of charge.
(iii)1976 – 1982. I worked on the farm free of charge for at least one month per year during this period.
(iv)1982-1984. I spent an average of one to two days per week at Boyup Brook free of charge covering my own travelling costs and very often supplying my own equipment. My father was to give me half the calves at Mardella and half the cattle at Boyup Brook for this work, but that never eventuated.
(v)In 1984 I organised a supply of mineral water from Mardella to Coca Cola for an agreed 50/50 split with my father. I do not know exactly how much my father earned out of it but he would have earned tens of thousands of dollars. He only paid me $1700. He promised to pay the rest but never did.
(vi)1983 and 1986 – 1995. I did the hay each year at Mardella taking an average of one month's work except for 1986 when I only did a bit over a fortnights (sic) work on the hay. The only payment I received was $200 per year. After 1991 I had to travel from Mooliabeenie to Mardella, a round trip of approximately 300 kms at my own expense.
(vii)1996 – 1997. From the 1st October 1996 up until the 4th September 1997 I did 312.25 hours of work at Mardella. This excludes travelling time. I did not receive payment for this work except for $580 and a small amount of fuel. During October and November of 1996 I did the hay. $400 of the $580 was paid to me by my father for the hay of 1996."
This does not support counsel's submissions that, since his head injury, the plaintiff has been largely incapable or substantially incapable of working.
The plaintiff's evidence to the effect that he had made a greater contribution to the testator's estate than did his siblings was disputed by the latter. In my opinion, it is not possible in the present case to make any sensible differentiation as to the values of the respective contributions made by each of the testator's children. I have set out above what I find those contributions to have been, but I do not think that a monetary value can be placed thereon on the evidence before me. Each of the testator's children contributed to the extent that they were able to do so, in conformity with their respective ages and sex and the testator treated each equally in his Will.
The legal principles, which apply in a case such as the present, are well settled.
In Singerv Berghouse (1994) 181 CLR 201, it was held by Mason CJ, Deane and McHugh JJ that, under the Family Provision Act (NSW) the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which arises only if the determination is made in favour of the applicant, requires the court to find what provision ought to be made out of the deceased's estate for the applicant. The decision on the first stage process is strictly one of fact, notwithstanding that it involves the exercise of value judgments, the decision at the second stage involves an exercise of discretion.
In the judgment of the majority in Singerv Berghouse, reference was made to the statement by Salmond J in In re Allen; Allen v Manchester (1921) 41 NZLR 218 that:
"The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

The other authorities referred to by the plaintiff were Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995; Horton v Pyne, unreported; SCt of WA; Library No 940337; 30 June 1994; Davey v Fairhead, unreported; SCt of WA; Library No 960088; 1 March 1996; Gibson v Perpetual Trustees Ltd, unreported; SCt of WA; Library No 960207; 19 April 1996; Blore v Lang (1960) 104 CLR 124; Johnson, As Executor of the Will of Birks v Marsh & Anor, unreported; SCt of WA; Library No 990207; 23 April 1999 and Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 8 April 1999.
Having referred me to those authorities, counsel said that there was no authority he had found which supported an approach, which would give an additional amount to a child who "had done something in addition to the moral claim of the other siblings".
In Nelson v Nelson (supra) Kennedy J cited a passage from the judgment of Windeyer J in Blore v Lang (supra) in which his Honour said, at 137:
"The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case. That has been a most regrettable feature of the present proceedings."
Kennedy J added, after that quotation:
"Unfortunately, the present case provides yet another illustration of estranged family members concentrating the major part of their attention and energies upon allegations and denials concerning episodes in the past."
Those remarks have some application to the matter before me. However, in Goodman v Windeyer (1980) 144 CLR 490, Gibbs J pointed out at 498:
"It is of course perfectly true to say that the power of the court under this legislation is to order that proper provision be made for the maintenance of the claimant, and not simply to reward the claimant for past services, but those dicta cannot mean that, in determining what is proper provision in all the circumstances of a particular case, the fact that a claimant has been a loving, helpful or dutiful spouse or child can or should be ignored."
The evidence does not establish that the plaintiff is in need of maintenance, education or support. He is able to work, he has the assets I have described above and there is no suggestion that he wishes or intends to further his education. Accordingly, his claim must be that the share of the estate bequeathed to him is inadequate to provide for his proper advancement in life. In determining that question, the Court must take into account all the circumstances and these include the position of the other beneficiaries under the testator's Will. I have described their respective positions above. Any additional amount to be paid to the plaintiff from the estate would have to come from the shares of the other siblings. In this regard, I had the following discussion with counsel for the plaintiff:
"WHITE J:   Thank you, Mr Nichols. Before you finally sit down, in relation to the plaintiff's claim to be given a further amount of money which will have to be taken away from the other siblings, did I understand you to say that he doesn't seek to get any contribution from Jason?
NICHOLS, MR:   No, sir, because he is an infant he is in a different position and because Noel also made a substantial contribution to the estate.
WHITE J:   So he wants a contribution from the others.
NICHOLS, MR:   Yes.
WHITE J:   All of the others?
NICHOLS, MR:   Yes, sir.
WHITE J:   Equally, or in some proportionate . . .
NICHOLS, MR:   Equally.
WHITE J:   Should Joan contribute as much as one of the others?
NICHOLS, MR:   It is up to the court but I would agree that if I was asked, Joan has a better case not to contribute."
Those submissions, as it seems to me, highlight the problem faced by the plaintiff. What the plaintiff seeks is a decision by this Court that he should receive a greater sum than his siblings by way of a deduction, in effect, of varying amounts from some of his siblings, but not others, the quantum of such deduction to determined in each case by an assessment of the respective moral entitlements of each of the second defendants. That would amount to no less that the re-writing of the testator's Will and that is not the function of this Court: Hughes v National Trustees Executors and Agency Co of Australia Ltd (1978‑79) 143 CLR 134 at 146 (per Gibbs J).
There can, I think, be no doubt that each of the testator's children, including, of course, the plaintiff, had a moral right to share in the estate. The testator recognised this when he bequeathed to each an equal share. I am not persuaded that the plaintiff has an entitlement to a greater share of the estate than his siblings (or Jason). He has not demonstrated that the bequest of some $320,000 from the deceased estate would be inadequate to provide for his proper advancement in life.
While the plaintiff suffered a brain haemorrhage in January 1987 and was, for a time unable to carry out hard work, it appears from the extract from his diary relating to work done by him on the farm during the period 1 October 1996 to 9 August 1997, that he was able to repair fences, prepare machinery for the hay season, rake and bale hay, mow 20 acres in a period of nine and a half hours on one day, do general farm work and irrigation work, among other tasks, sometimes claiming more than nine hours' work a day and as much as 12 hours on one day.
In my opinion, the testator acted as a wise and just father in bequeathing an equal share of his estate to each of his children.
Accordingly, the plaintiff fails at the first, jurisdictional, stage of the enquiry and his claim must be dismissed.