Sanderson v Bradley
[2004] VSC 231
•30 June 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4107 of 2003
| MELODY SANDERSON | Plaintiff |
| V | |
| LESLIE JOSEPH BRADLEY (who is sued as Executor of the Will of John William Maddison deceased) | Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2004 | |
DATE OF JUDGMENT: | 30 June 2004 | |
CASE MAY BE CITED AS: | Sanderson v Bradley | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 231 | |
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Testator’s Family Maintenance – application by sister – ademption of a specific devise to plaintiff – no part of residual to pass to plaintiff – whether deceased had assumed an obligation or responsibility to make provision for the plaintiff
Administration and Probate Act 1958 s 91
Marshall v Spillane [2001] VSC 371
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr PH Barton | Nicholas P Byrne |
| For the Defendant | Mr RTA Waddell | Abbott Stillman & Wilson |
HER HONOUR:
In this proceeding, commenced by originating motion on 13 January 2003, the plaintiff seeks an order under Part IV of the Administration and Probate Act 1958 (“the Act”) that provision be made out of the estate of her brother John William Maddison (“the deceased”) for her proper maintenance and support.
By his last will, made on 21 March 1963, the deceased appointed the defendant (“Mr Bradley”) as executor. He devised “my property at 158 Beaumont Street, Hamilton, New South Wales”, to the plaintiff absolutely and left the residue of his estate to his wife. The final clause of the will reads as follows:
If my said sister or my said wife shall predecease me I Direct that the share of the one so predeceasing me shall be taken by the University of Melbourne to be used in such manner as the Governing Body of the University shall deem fit.
The deceased and his wife married in 1950 and were divorced in 1976. It is stated in the application for dissolution of marriage that the wife left the matrimonial home in February 1958 and that the parties had lived separately and apart since that date. There is unchallenged evidence that the deceased attended her funeral. He did not marry again and had no children.
The property in Hamilton (which is near Newcastle) was occupied by a house and had been devised to the deceased’s uncle Leslie Thompson by the will of Leslie Thompson’s mother Sarah Thompson who died in 1933. The property was left to the deceased by the will of his uncle, who died in 1949. There was considerable delay in the administration of the estate of Sarah Thompson. Letters of administration de bonis non were granted to Margaret Snelson in 1956 and the property was conveyed by her to Renon Pty Ltd in 1972 for $12,000. There is evidence to suggest that the deceased received $6,470.37 of that amount. It would appear that the house was not in good repair, but I am not able on the evidence before me to reach any firm conclusion on that matter.
The effect of the sale in 1972 is that the specific devise of the house to the plaintiff was adeemed, and accordingly she received nothing under the will.
The combined effect of the ademption of the specific devise to the plaintiff and the wife’s predeceasing the deceased is that as things now stand the University of Melbourne is the sole beneficiary under the will and is prima facie entitled to the whole of the estate of the deceased. The plaintiff was a graduate of Sydney University, not of the University of Melbourne, but the evidence is that when he was managing director of Siemens Industries Limited (“Siemens”) he would arrange through Professor Moorhouse, who was a close friend, for the best young engineering graduates to seek employment at Siemens. There is no evidence of any other connection between the deceased and the University of Melbourne.
Section 91(1) of the Act provides that the Court may make an order of the kind sought by the plaintiff in favour of a person for whom the deceased had responsibility to make provision. The effect of section 91(2) in the present case is that the Court may not make such an order unless it is satisfied that the distribution of the estate of the deceased effected by his will does not make adequate provision for the proper maintenance and support of the plaintiff.
Section 91(4) reads as follows, so far as relevant:
(4)The Court in determining¾
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person as effected by¾
(i)the deceased’s will;
.. .
makes adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under sub-section (1)¾
must have regard to¾
(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j)the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m)whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n)the liability of any other person to maintain the applicant;
(o)the character and conduct of the applicant or any other person;
(p)any other matter the Court considers relevant.
The threshold question is whether or not the deceased had responsibility to make provision for the plaintiff. It is convenient to examine the balance of the evidence in the context of the matters referred to in paragraphs (e) to (o) of section 91(4).
As to the relationship between the plaintiff and the deceased, the deceased was born in November 1920 and the plaintiff in March 1923 and they were the only children of their parents. Their father died in 1931 and their mother in 1934. Thereafter the plaintiff was brought up by an aunt who lived in Hamilton, and the deceased by an aunt who lived in Brisbane. The deceased later returned to Hamilton and worked there until World War II when he joined the RAAF.
It appears that the deceased lived and worked in Melbourne from at least 1952. In 1954 the plaintiff and her husband began full-time work, described as “voluntary” with the Watch Tower Bible and Tract Society, otherwise known as Jehovah’s Witnesses. After a few years in Ballarat and Adelaide, they spent a year in New York and then worked in India until 1999. During that time they kept contact by letter and occasionally returned to Australia, and if they were in Melbourne would visit the deceased, have a meal in a restaurant with him, go for drives with him, and exchange gifts. They have lived in Sydney since 1999 and visited the deceased in Melbourne two or three times in that time. They have no children.
Mr Bradley worked very closely with the deceased at Siemens from 1956 until the deceased resigned from Siemens in 1967, and they kept in touch as friends thereafter particularly in the last few years of the deceased’s life, when he was unwell. He said that the deceased had a good income while he was at Siemens, but that his income tax returns for the 1970’s showed very modest income figures. The plaintiff agreed that after leaving Siemens the deceased set up a business which was unsuccessful, and that he suffered from illness resulting from war injuries. Mr Bradley deposed that he did not know that the deceased had a sister until after his death.
Ms Murphy met the deceased in 1967 and maintained mostly daily contact with him until his death. She knew that the deceased had a sister and had the plaintiff’s telephone and fax numbers in her address book in case of emergencies. He would tell her of the visits by the plaintiff and her husband which are referred to above. However, Ms Murphy’s first contact with the plaintiff was when she rang to notify her of her brother’s death.
The plaintiff deposes that her relationship with the deceased was close throughout their joint lives. However, she thought that he was a graduate of the University of Melbourne, which was not the case, and her evidence as to the date of his marriage was out by eleven years. Her oral evidence that “he had friends, many friends, but nobody as close as what I was to my brother” is entirely inconsistent with the evidence of Mr Bradley and Ms Murphy as to their own friendships with the deceased, and seems from the context to perhaps be premised on the basis that by “close” she meant “closely related”. Given that their contact with each other since the 1950’s was only occasional, it is difficult to see how the plaintiff could have expected to have any real knowledge of the nature of the deceased’s relationships with his friends.
It does not appear to me that the deceased had any obligations or responsibilities towards the plaintiff, or towards the sole remaining beneficiary, the University of Melbourne. In her affidavit in support of the application, sworn in February 2003, the plaintiff deposes that her brother “told me that he was going to provide for me in his will, since he was wealthy and my husband and I were not.” She was asked in examination in chief to expand on that statement, and replied, “Well, we used to have conversations concerning the property and I said to him that, because my uncle had told me he was going to leave me the property and he said ‘Well, don't worry, I'll take care of you’ and . . . sort of felt that I had a share in it that way.”
In her third affidavit, sworn the day before the hearing she deposed:
I did not know that Jack [the deceased] had ever left me a house in his will until after he died. However on a number of occasions we discussed that house and he told me how disappointed he was with what the house sold for. I told him that Uncle Les (whose house it had been) had always told me before I was married that he (Uncle Les) would leave me the house. In one of these discussions Jack replied “Don’t worry, I’ll take care of you”.
I did not find that evidence to be entirely convincing, but assuming that the conversation there described took place, I do not, in all the circumstances, regard it as creating any relevant obligation or responsibility.
Mr Barton, for the plaintiff, submitted that the warmth of the relationship between the brother and sister and the plaintiff’s concern for her brother gave rise to an obligation or responsibility of the deceased to the plaintiff. That submission does not appear to me to be supported by the evidence; or, in any case, to relate to the kind of circumstance envisaged by paragraph 91(4)(f).
Mr Bradley deposes that the financial situation of the estate as at 2 June 2004 is that it has personal assets, namely debentures, shares, deposits, bonds and interests in trusts totalling $453,173.57. It appears that it is not subject to any charges or liabilities. It will be apparent that the value of the property in Hamilton which was devised to the plaintiff under the will was small in the context of the overall value of the estate.
As to her financial position the plaintiff deposed as follows in her affidavit in support:
My husband and I are not in employment but we continue to carry out our voluntary religious work at the headquarters of the Watch Tower Bible and Tract Society, in return for which we are provided with rent free accommodation, together with an allowance of $130 per month to each of us. We also together receive an age pension of $360 per fortnight.
My husband and I do not own any real property. We have a 1999 Camry car, savings of $43,000 and abut $2,000 in our current bank accounts. We have no other security for our future. My husband and I receive free accommodation in return for our religious work, but we have no savings with which to provide for ourselves in the event of our heath failing, or our having to find our own accommodation, or should either or both of us need to enter supported accommodation.
In her affidavit of 23 June 2004, she deposes:
We live in a Jehovah’s Witnesses complex. 220 persons live and work at the complex. We are provided with a unit to live in, communal meals in a dining room and $130 per month each. If we fall ill the Watch Tower Society is under no legal obligation to look after us but in practice it would look after us if we want. There is an infirmary at the complex and some nurses there also. However the view of my husband and I is that if we could not work we would voluntarily leave the complex and would not want to be supported by the Watch Tower Society. In that event we would like provision towards purchase of a unit elsewhere. We do not desire an ongoing payment of income from the estate as it would affect our pension, which carries certain benefits such as free travel and subsidised medicine.
In the absence of any evidence as to any financial commitments or needs of the plaintiff, I must assume that she has no such commitments or needs. That would be consistent with the provision to her by the Watch Tower Society of accommodation and meals.
The plaintiff said in examination in chief that the Watch Tower Society was not obliged to look after her and her husband if they could no longer work, but in cross-examination she agreed that it would in fact do so. She said that she now does only half a day’s work; it was not clear whether by that she meant that she did half a day’s work a week, or that she worked for only half of each working day.
The plaintiff deposes that she is in good health for someone of her age, namely 81 years, but that she takes tablets for high blood pressure and has some hearing problems.
It is not suggested that the plaintiff has made any contribution to building up the estate of the deceased. Mr Barton submitted that she contributed to his welfare by providing him with the sole support he had from family. However, while such support may be within the intent of paragraph 91(4)(k), the evidence as to the occasional meetings between brother and sister does not give the impression of any significant support of the deceased by the plaintiff.
The only benefits referred to in the evidence of the plaintiff are occasional exchanges of presents, one gift of $500 in 1984 and one gift of $500 in 1990 to the plaintiff’s husband There is no evidence of any gifts by the deceased to the University of Melbourne.
The plaintiff was not being maintained by the deceased either wholly or partly. The question of the liability of any other person (apart from her 82-year old husband) to maintain the plaintiff is considered above.
The plaintiff has spent her working life as a missionary for Jehovah’s Witnesses and there is no evidence relevant to her character or her conduct.
In submitting that the deceased had responsibility to make provision for the plaintiff, Mr Barton relied on the family relationship and its quality, the size of the estate, the plaintiff’s poor financial resources, her uncertain future needs if she falls ill or cannot work, the natural frailty of old age, the lack of any other responsibility or of any competitor in need, and the uncertain situation surrounding the Hamilton property and the statement by the deceased that he would take care of her.
Mr Waddell, for the defendant, submitted, and I accept, that the terms of the will did not show a consciousness in the deceased of a responsibility to provide for his sister. The value of the property devised to her was not great, and the express gift over of residue should his wife predecease him was to the University of Melbourne, not to the plaintiff.
While the plaintiff and the deceased remained in contact, the relationship could not, in my view, be described as close. The plaintiff gives no date or context for the statement that the deceased would take care of her, and there is no suggestion that she relied on any such statement to her detriment. Her life as a member of Jehovah’s Witnesses is her own choice, and in cross-examination she agreed that she believed that it was her vocation from God to serve him in this way.
I cannot find that the plaintiff and her husband are in need. They live in a community where they are supplied with accommodation, board and a small income in addition to their age pensions, where there is an infirmary and nursing support, and where they will continue to be looked after.
As to the lack of any other responsibility of the defendant or of any other claimant in need, it must always be remembered that it is a serious matter to interfere with the intentions of a testator. The absence of other responsibilities, and of any other claimant in need, are not matters which are relevant to the question of whether the deceased had responsibility to make provision for the plaintiff, so as to empower the Court to make an order interfering with that intention.
Prior to the amendments of 1997 the Act empowered the Court to make an order in favour of a widow, widower or child of the deceased. It now has power, as I have said, to make an order in favour of a person for whom the deceased had a responsibility to make provision. It appears that since the making of those amendments there has been only one decided case where the applicant was a sibling of the deceased.
In Marshall v Spillane [2001] VSC 371 Byrne J made an order under section 91 in favour of a brother of the deceased. He found that over the whole period of their joint lives the brother had acted towards his sister as a dutiful son would have done and she had acted towards him as a loving mother would have done, and that the brother had discharged the burden of showing that his sister had a responsibility to make provision for him. The circumstances of that case are far removed from those before me and I do not find it to be of any assistance. Nor did I find assistance in authorities from other jurisdictions where the corresponding legislation is differently expressed.
Having had regard to the several matters listed in section 91(4), I cannot find that the deceased had responsibility to make provision for the plaintiff. Theirs was a normal sibling relationship, less close than many such. I find nothing in the evidence to indicate that the deceased had any such responsibility.
For the reasons given, the application will be dismissed. Counsel may wish to make submissions as to costs.
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