Sellers v Hyde
[2005] VSC 382
•27 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4739 of 2003
IN THE MATTER of Part IV of the Administration and Probate Act 1958 and
IN THE MATTER of the Will and Estate of THELMA JEAN SELLERS, deceased
| RENA SELLERS | Plaintiff |
| V | |
| MARISA KATE HYDE | Defendant |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6 April 2005, 24 August 2005 | |
DATE OF JUDGMENT: | 27 September 2005 | |
CASE MAY BE CITED AS: | Sellers v Hyde | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 382 | |
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TESTATOR’S FAMILY MAINTENANCE – application by adult foster daughter of testatrix where testatrix had failed to make any provision for her – what amount would constitute adequate provision for the proper maintenance and support of the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R R Boaden | McNab McNab & Starke |
| For the Defendant | Mr R N J Young | Ogge & Lee |
HIS HONOUR:
This is an application under Part IV of the Administration and Probate Act 1958 (“the Act”). The plaintiff, Rena Sellers, is the foster daughter of the testatrix, Thelma Jean Sellers[1], who died on 6 October 2002 at the age of 90 years. The testatrix left a will dated 4 April 2002 by which she appointed the defendant as her executor and sole beneficiary. The defendant, Marisa Kate Hyde (in the will called Marissa Hyde), was not a relative of the testatrix but was her tenant or boarder for about 7 years.
[1]It appears from the probate and the will that the correct spelling of the surname is “Sellers” and not “Sellars” and that the title of the proceeding is incorrect in that respect. An order will be made that the title of the proceeding be amended by substituting “Sellers” for “Sellars” in the name of the deceased and the name of the plaintiff and that the title to all documents in the proceeding be deemed to be amended accordingly.
The inventory of assets and liabilities produced by the defendant at the time of her application for probate shows that the estate consisted principally of real estate, namely, a house property situate at 61 Park Street, St Kilda (“the St Kilda property”) with an estimated value in November 2002 of $1.15M. The personal estate valued at about $56,000 was comprised mainly of cash, a bank account and a term deposit with a total value of about $50,000. There were no liabilities. At present values, and allowing for legal and like costs (including the costs of this proceeding), the net value of the estate is now estimated to be $1.1M.
The defendant rightly conceded that the plaintiff was a person for whom the testatrix had responsibility to make provision, for her proper maintenance and support, within the meaning of s.91(1) of the Act. The defendant also rightly conceded that the distribution of the estate of the testatrix effected by her will did not make adequate provision for the proper maintenance and support of the plaintiff within the meaning of s.91(3) of the Act. The defendant thus accepted that the plaintiff was entitled to an order that provision be made for her out of the estate of the testatrix and the defendant further accepted that such provision would have to be of some substance. The only contest in the proceeding went to the quantum of such provision.
Facts
The testatrix was born on 11 April 1912. The plaintiff, who was born on 6 November 1931, was a foster daughter[2] of the testatrix and was brought up by the testatrix as her daughter and sole child. In or about 1936 and shortly after the plaintiff had started school, the testatrix married George Ryan (“George”). The plaintiff lived with the testatrix and George in South Yarra and attended South Yarra Primary School. For a time the testatrix managed the Mentone Hotel and the plaintiff attended school in the Mentone area. The family then returned to South Yarra but the plaintiff completed her schooling at grade 6 level. The testatrix told the plaintiff, and the plaintiff accepted, that the testatrix and George did not have the money for the plaintiff to go to secondary school. At that stage the testatrix worked as a waitress and George was an office worker. After finishing school, the plaintiff stayed at home for about 12 months, looked after the house and did household chores.
[2]The plaintiff did not learn that she was not the biological child of the testatrix until the time when she applied for a passport in 1984 and could not obtain a birth certificate. The testatrix then informed her of that fact but refused to give her any more details. The plaintiff subsequently obtained a birth certificate showing her original name and the name of her 19 year old birth mother.
Between the ages of 14 and 21 the plaintiff worked in paid employment. She was employed as a junior in a bookbinding business and later had jobs in “over the counter sales” in retail stores. She lived with the testatrix and George during that period. The plaintiff’s wages were handed to the testatrix who managed the family finances. When the plaintiff turned 18 the testatrix permitted the plaintiff to retain some of her wages but the rest all went to the testatrix as board.
The plaintiff deposed that she and the testatrix had a normal mother and daughter relationship during her childhood and teenage years. The testatrix, George and the plaintiff shared special occasions, went on outings and holidays together and were basically a normal family. The plaintiff deposed that the testatrix was a strong person who made the decisions for the family.
The relationship between the testatrix and George began to break down in the mid-1950s.
The plaintiff married Brian Hedley Sellers (“the plaintiff’s husband”) on 12 January 1952. They had no money and they lived with the testatrix for about 6 years. During that period George left the testatrix and, not long after that, the testatrix married Alexander Hedley Sellers (“Sellers Senior”).[3] Sellers Senior moved in to the South Yarra home along with the testatrix, the plaintiff and her husband. They all got on well together and it was a happy environment. The plaintiff continued to contribute to household chores and maintenance.
[3]The plaintiff’s husband was the son of Sellers Senior by his first marriage – hence the corresponding surnames. Sellers Senior died in 1967.
In 1958, with the assistance of a bank loan, the plaintiff and her husband purchased and moved into a house property at 23 Normdale Road East Bentleigh (“the Bentleigh property”). The plaintiff still resides in the Bentleigh property. The testatrix continued to live in South Yarra until, in the early 1960s, she sold her South Yarra property and purchased the St Kilda property. At the time of selling her South Yarra property, the testatrix had already separated from Sellers Senior and had met one John Smith (“Jack”). The testatrix and Jack stayed together until he died in the late 1980s or early 1990s.
After her marriage the plaintiff had a number of retail sales and other jobs. Two children were born of the plaintiff’s marriage, Malcolm Sellers (“Malcolm”) on 15 June 1960 and Graeme Sellers (“Graeme”) on 11 October 1961. The plaintiff stayed at home to look after the children for the first five years and thereafter obtained such employment as would fit in with the demands of being a mother. She worked variously as a cleaner, a production worker, a lavatory attendant and a tea lady. She lost her job as a result of having to undergo gallstone surgery at the age of 55 and was subsequently unable to obtain employment. She received a part-pension in 1986 and went on to a full pension in about 1991.
The plaintiff’s husband worked as a labourer and welder for all of his working life. The plaintiff and her husband paid off the bank loan for the Bentleigh property. Malcolm left home in 1976 and Graeme left home in about 1992. In or about 1993 the plaintiff and her husband commenced to live separate lives. The plaintiff’s husband retired in 1995 at the age of 65. At about that time he met another woman and in 1996 he left the Bentleigh property to live with her. Since 1996 the plaintiff has lived alone in the Bentleigh property. When the plaintiff’s husband left in 1996 the plaintiff had a bank account with about $2,800 in it.
After moving to the Bentleigh property the plaintiff maintained regular contact with the testatrix. They spoke on the telephone many times a week. The plaintiff did not drive a motor vehicle but the testatrix did and would often drive to the plaintiff’s house and pick her and the children up. The plaintiff and the testatrix would often go out together. The testatrix loved the plaintiff’s children and they often shared birthdays, Christmas, Easter and other special occasions together. On weekends the testatrix, Jack, the plaintiff and her two children would often go for daytrips by car. The plaintiff also deposed that for many years the testatrix would drive over on Wednesdays so that the two of them could go to the market together but that the testatrix’s visits ceased in the early 1990s when the testatrix had to stop driving.
The plaintiff used to visit the testatrix about once a week, travelling by public transport which involved, at that time, two buses and a train and took nearly two hours in each direction. The plaintiff later began to experience serious health problems which made it difficult to continue her visits to her mother by public transport.
After the testatrix stopped driving, Graeme would collect her and bring her over to the plaintiff by car about once a fortnight. Graeme would mow the lawns at the St Kilda property and the plaintiff deposed that both Graeme and Malcolm were always working on the St Kilda property, doing things for the testatrix. In or about 1995 Graeme began living in Darraweit Guin, near Mount Macedon, and became less available, however every Friday night for about 8 years from that time Graeme continued to visit the plaintiff and would call in and visit the testatrix on his way (until the “white ant incident” occurred).[4] On these Fridays, Graeme would often collect the testatrix and bring her to visit the plaintiff and later take her back to the St Kilda property. About once every two months, Graeme would take the plaintiff on the weekend to visit the testatrix.
[4]See para 19 below.
By a will dated 5 May 1992, the testatrix appointed Malcolm and Graeme as executors, gave her jewellery and personal effects to the plaintiff and the residue of her real and personal estate to such of the plaintiff and Graeme and Malcolm who were living at her death and if more than one in equal shares.
The defendant, who was born on 8 September 1969, is a registered nurse. In about 1995 the defendant had returned from overseas and had applied for a position at the Alfred Hospital. She met the testatrix when visiting a nursing colleague who had been residing with the testatrix in her St Kilda property and was about to leave. At the invitation of the testatrix, the defendant agreed to rent the upstairs portion of the St Kilda property (which had self-contained facilities) for the sum of $20 per week. The testatrix explained to the defendant that she was worried that if she charged too high a rent it would affect her pension and she said to the defendant in effect that she expected help with household jobs. The defendant also had free use of equipment such as the washing machine.
After taking up residence the defendant regularly saw and conversed with the testatrix. They formed a close friendship and the defendant made a significant contribution toward the welfare of the testatrix. According to the defendant, the testatrix regularly complained about the plaintiff and her family referring to such matters as unsatisfactory building works, disagreements and arguments, rudeness and lack of personal contact and attention.
I interpolate that there was evidence, from a number of other witnesses, of the testatrix making various complaints about the plaintiff’s conduct towards her, the plaintiff’s lack of consideration for her and also her irritation at what she saw as the plaintiff’s failure to properly look after herself.
It would seem that it was only in late 2001 that relations between the plaintiff and the testatrix became seriously strained as a consequence of some building works that were being done at the St Kilda property. At that time the testatrix asked Malcolm for help to deal with a white ant problem. Malcolm was unemployed at the time but before Malcolm could do the work himself, the testatrix asked Graeme to arrange for a builder to provide a quotation for repair works. Graeme obtained a quotation from a builder for about $5,900 for demolition works to a stage at which an assessment could be made of the extent of the white ant problem. Once the demolition works had been completed, the white ant damage turned out to be more extensive than had been thought and the builder estimated that the final job would cost in the region of $14,000. The total cost of works, including work by a company known as Pest-A-Way, was about $20,000. The works carried out by the builder involved some layout changes to the rear of the house and, after completion, the testatrix said that she had not agreed to those changes and blamed Graeme. Graeme said to the testatrix that the changes had all been discussed and agreed prior to the commencement of the works. The testatrix said that Graeme was there for the builder and not for her. At that time the testatrix and Graeme had an additional disagreement about the cost of a bulk rubbish bin provided by Graeme’s employer, Cleanaway. The testatrix said that she should not have to pay for this and Graeme ended up paying the bill of about $380.
In about the year 2000 the testatrix had lent Malcolm about $30,000. By September 2001, the testatrix was complaining about Graeme in relation to the building works and the cost of the rubbish bin. She was also requiring the repayment of her loan to Malcolm, which was repaid in early 2002 but not before the testatrix had sent Malcolm a solicitor’s letter. The plaintiff and the testatrix were still speaking by telephone but the plaintiff found it difficult to travel because of her health. It seems that the lessened contact between the plaintiff and the testatrix and the testatrix’s annoyance at the conduct of the plaintiff’s sons led to the testatrix’s change of attitude towards the plaintiff.
By a will dated 28 November 2001 the testatrix revoked all prior wills and appointed “my friend Marissa Hyde of 61 Park Street, St Kilda” as her executrix and gave the whole of her estate “to the said Marissa Hyde for her own use and benefit absolutely.” In addition, by cl.4 of the will, she declared “that Malcolm Sellers has received the sum of $30,000 from me”. The final will of the testatrix, executed on 11 April 2002, differed from the prior will in substance only by virtue of the deletion of the reference to the money given to Malcolm, which by then had been repaid or substantially repaid.
The defendant deposed that in the seven years that she had lived in the St Kilda property she had seen the plaintiff only once. The nature of the defendant’s employment renders it unlikely that she is in a position to provide a fair picture of the actual number of visits by the plaintiff.
The defendant deposed that she assisted the testatrix by getting groceries for her, taking her shopping, taking her to visit friends, walking her dog, liaising with her general practitioner and her pharmacist, and by helping with a wide range of personal chores of the kind that a daughter would perform. The testatrix, according to the defendant, perceived the plaintiff and her sons as people who did not care for her and were out for what they could get.
The defendant married Sean Cooray, an airline pilot, on 7 June 2003. The defendant deposed as at March 2005 that she had a baby of 15 months and had just recommenced part-time work after having stopped work for about a year. She further testified that her husband had a medical condition related to his hearing which might prevent him from obtaining an Australian pilot’s license and that he was currently unemployed. She deposed that she and her husband had a flat in Queensland for which they had paid $348,000 and which was subject to a mortgage of $271,289. The interest on the mortgage was offset by the rental they received.
According to the defendant, the testatrix, prior to her death on 6 October 2003, informed the defendant that she had made her will in which she gave her estate to the defendant and said to the defendant that she would have problems with the plaintiff and her sons and that the defendant was not to “give in” to them but to “fight them all the way”.
The plaintiff has suffered and suffers from substantial ill-health and various serious conditions. In her affidavit sworn 11 July 2003 she describes her condition as follows:
“9.I suffer from substantial ill health and the conditions I have are such that they will continue to deteriorate. In particular;
(a)I have suffered with leg ulcers for the last twenty years. For the last seven years the leg ulcers have been severe. I need to constantly wear dressings and am limited in the clothing I can wear because of the discharges. For the last 18 months I have not been allowed to shower because the ulcers are not allowed to get wet. A district nurse used to visit me about two or three times a week to change those dressings but for the last two years the visits have been reduced to only once a week because of funding constraints.
(b)I have suffered with stomach ulcers for the last ten years. I take antacids at least once a day and usually more than once a day otherwise the pain makes [me] physically ill.
(c)I have been a diabetic for the last twenty years and for the last twelve months I have been injecting insulin.
(d)I have had arthritis in my knees and ankles for the last ten years.
(e)I have had cataracts in both eyes and have had very poor vision for the last six years. One cataract was removed in December 2002. The cataract in the other eye was removed in March of this year.
(f) I am on medication for high blood pressure.
(g)In 1995 I was hospitalised with a blocked bowel and strangulated hernia. I was in hospital for a period of approximately seven weeks.
(h)In 1999 I went into a diabetic coma for two days. I was again hospitalised. I was in hospital for a period of approximately ten weeks.
10.The diabetes desensitises the feeling in my feet and the combination of that with the ulcers and my arthritis means that I have a bad sense of balance. I have had numerous big falls over the years. Once I fall I often find that I can’t get up easily and on many occasions I have had to drag myself to something nearby so that I can pull myself up. I can’t travel very easily. For the last two years I have not been able to use public transport unless it has low entry access. I have the benefit of half-fare taxis but even so I am concerned every time I use one that I might [lose] my balance when getting out. I have a personal alarm that I wear around my neck that is linked to a call centre.
11. These medical conditions are only going to deteriorate. I do not have the financial resources to take out private medical insurance or to privately fund the treatment or pay for nursing visits or personal carer to be with me. I did try for a short time to live in a Hostel however I didn’t enjoy it and I want to live in my own home for as long as I can. I have meals on wheels and home help from the council but I really need more full time care and I really need to have a live-in carer to give me quality of life.”
The plaintiff and her husband are still married and there have as yet been no divorce or property proceedings between them. According to the plaintiff, her husband has said that he wants the Bentleigh property sold so that he can have access to his share of the proceeds. The plaintiff cannot afford to buy him out. The plaintiff’s husband testified that he was not pressing for the sale of the Bentleigh property but that he would like to be able to move on with his life, but at the moment he could not. He added: “I’m not really happy. I would like things to be settled so that [the plaintiff] is independent.” He indicated that he would like the sale of the Bentleigh property to occur but he would not press for it in the present circumstances. The plaintiff’s husband is himself a pensioner.
The plaintiff deposed that her only assets of value were her half-share of the Bentleigh property (the property being worth about $340,000) and a deposit investment in the sum of $8,704.56 and that her sole source of income was the aged pension ($414 per fortnight as at March 2005). The plaintiff testified that the Bentleigh property required repair works and a number of household appliances were in need of replacement.
Dr R H Dupuche, a very experienced physician, deposed as to the physical condition of the plaintiff, her prognosis and her likely medical needs in the future. Dr Dupuche noted the plaintiff’s history as being that she became diabetic at the age of 55, had a long history of leg ulcers and that her legs were in relatively poor condition. She had background diabetic retinopothy with diabetic vascular changes which were reducing her vision, she had peripheral vascular disease with circular insufficiency of the legs and severe dependent oedema. Her mobility was very limited due to a variety of factors including central cerebral ischaemic injury, obesity and arthritis. She had a severe tendency to fall and had had many falling events. She remained at severe risk of further falling and injuries such as fractured hip or skull or ribs. She had quite advanced osteoarthritis of the spine and bilateral severe osteoarthritic knees, the legacy in large degree of her obesity. Dr Dupuche said that she “would probably be a candidate for total knee joint replacement but her long list of complicating medical conditions would probably make that surgery a high risk”. Dr Dupuche described a range of other serious physical conditions and added that the plaintiff “is quite severely depressed which produces its own symptoms and increases her risk of coronary events”. He said that the plaintiff was very obese and walked in a very unsteady, ataxic and slow manner using a wheeled walking frame.
Dr Dupuche did not think that the plaintiff could much longer live alone as at present without assistance. She faced many potential complications in the short term, ie within several years. The doctor was of the view that, although at her age of 73 years and on the basis of life expectancy tables her prognosis would be 14.78 years, her life expectancy was more likely to be between five and ten years, nearer ten, but it was not possible to be more precise. He thought that she could not live alone in her own house for longer than between two and five years, probably nearer two. The provision of home help, home nursing and meals would not be sufficient. In the relatively short term she would need a full-time carer if she remained at home.
Substantial financial evidence was provided on behalf of the plaintiff. Evidence was provided as to the cost of normal day-to-day expenses for the plaintiff based upon a “modest but not frugal lifestyle” and taking into account the plaintiff’s actual expenditures.[5] There was evidence as to the costs of home improvements and refitting.[6] Evidence was also provided as to the likely cost of home help and personal care[7] and of nursing home accommodation[8]. Detailed expert evidence and calculations were provided, based on a variety of assumptions, as to the capital required to produce various cashflows over various periods of years[9]. It was common ground that such evidence and calculations could be a guide only and that the Court had to take a broad brush approach rather than an arithmetical approach, and also had to take into account the various criteria set forth in the Act. I turn to these criteria (so far as relevant to the present case). Before doing so, I note that I found some guidance in the expert estimation that a capital sum of $720,000 would be required to produce a cashflow sufficient to deal with the needs of the plaintiff, as appearing from the evidence, for a period of eight years.[10]
The relationship between the testatrix and the plaintiff including the nature of the relationship and the length of the relationship
[5]See the affidavit of Graham Sellers sworn 17 May 2005 – I have taken into account that some of the items may be taken to be “padded” or overstated.
[6]See the affidavits of Brian Gale sworn 29 March 2005 and Mark Albert Maier sworn 18 May 2005.
[7]See the affidavits of Sandra Knight sworn 17 May 2005 and Bronwyn Farquhar sworn 2 June 2005.
[8]See the affidavit of Cheryl Buhler sworn 22 August 2005 as to bonds and weekly fees.
[9]See the joint affidavits of Ken James Bradley and Elizabeth Scott sworn 28 May 2005 and 23 August 2005.
[10]See exhibit PA2 to the affidavit of Ken James Bradley and Elizabeth Scott sworn 28 May 2005 – see pages 40-43 of the exhibit but I have read and broadly taken into account the contents of the whole of this exhibit which extends to some 103 pages (excluding the appendices).
The testatrix and the plaintiff were de facto mother and daughter. They had a long and close and apparently normal relationship. It was only in the last few years of the testatrix’s life that their relationship became strained. I am satisfied that there was fault for this on both sides, although it was the case that the testatrix exhibited a real degree of irrationality.
Any obligations or responsibilities of the testatrix to the plaintiff and to the beneficiaries of the estate
The testatrix had an obligation to make adequate provision for the proper maintenance and support of the plaintiff. The testatrix had no obligation or responsibility to make provision for the proper maintenance and support of the defendant.
The size and nature of the estate
The estate is of sufficient size to make adequate provision for the proper maintenance and support of the plaintiff.
The financial resources (including earning capacity) of the plaintiff and of any beneficiary of the estate at the time of hearing and for the foreseeable future
The plaintiff has very limited financial resources, no earning capacity and substantial needs for the duration of her life. The defendant has no substantial financial resources, a reasonable earning capacity (subject to family responsibilities) and potential problems concerning the earning capacity of her husband.
Any physical, mental or intellectual disability of the plaintiff or any beneficiary of the estate
The plaintiff has serious physical disabilities as a result of her medical condition. The defendant has no disabilities.
The age of the plaintiff
The plaintiff is aged 73 and has a life expectancy of about 10 years.
Any benefits previously given by the testatrix to the plaintiff or to any beneficiary
The plaintiff did not receive any pecuniary benefits from the testatrix during her lifetime. The defendant, while making a significant contribution in relation to the needs of the testatrix and her household, received a very valuable benefit over a period of about 7 years in the form of good accommodation for a nominal rental.
The liability of any other person to maintain the plaintiff
The plaintiff is separated from her husband who is a pensioner. No submissions were made that the husband was or was able to or was liable to make any provision for the plaintiff. There was no evidence about the likely division of the proceeds of sale of the Bentleigh property, should it be sold. It appeared to be assumed by the plaintiff and her representatives, and not challenged by the defendant’s representatives, that the plaintiff and her husband would share equally in the proceeds of such a sale or that the plaintiff might buy out her husband for an amount representing half the value of the property.
The character and conduct of the plaintiff or any other person
The plaintiff is of good character and is not guilty of any disentitling conduct. Insofar as she paid reduced attention to the testatrix in later years, I consider that this resulted from her own serious physical condition and her incapacity to do any more than she did.
Any other matter the Court considers relevant
I have taken into account the whole of the evidence including but not limited to the matters expressly recited in these reasons for judgment. I should add that the testatrix was of course, subject to Part IV of the Act, entitled to dispose of her estate as she saw fit. The matter most relevant to the appropriate amount of any provision for the plaintiff is the needs of the plaintiff and, as a result, what in relation to those needs constitutes adequate provision for her proper maintenance and support.
The Court is of course not bound to take into account any precise amounts submitted by counsel but, in the present case, amounts were suggested and give some indication of the parameters of the dispute from the point of view of the parties. Counsel for the defendant contended that appropriate provision would be the sum of $300,000 whereas counsel for the plaintiff contended that appropriate provision would be the sum of $800,000.
Conclusion
I particularly take into account, in addition to other matters already mentioned, the plaintiff’s assets, her likely life expectancy, her requirements for home expenditure and care, her likely home care expenses, the possibility that she might have to move to a nursing home within two or three years and her needs generally. I take into account that there are of course a number of future contingencies which might affect the plaintiff, some of which would reduce her need for provision and others which might increase that need. I consider that provision for the plaintiff should not err on the side of parsimony. I am satisfied that her needs are substantial and that one real contingency is that she may live longer than is expected. In all the circumstances, and doing the best I can, I have decided that provision should be made for the plaintiff in the sum of $750,000.
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