Shcherbakova v Stapleton And Stapleton v Stapleton

[2001] NSWSC 213

CITATION:	SHCHERBAKOVA v STAPLETON AND STAPLETON v STAPLETON [2001] NSWSC 213
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1487/98; 2526/98
HEARING DATE(S):	12 - 15 March 2001
JUDGMENT DATE:	15 March 2001
PARTIES :	Natalia Shcherbakova & Anor v Nealings Edwin Stapleton Linda Eileen Stapleton & Anor v Nealings Edwin Stapleton (Estate of Grahame Edwin Stapleton)
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr. G.W. McGrath for plaintiffs Natalia & Dima Shcherbakova Mr R.D. Wilson for plaintiffs Linda and Jean Stapleton Mr M. Southwick for defendant
SOLICITORS:	John C. Burton for Shcherbakova Peninsula Law for Linda & Jean Stapleton Grinberg Young & Krass for defendant
CATCHWORDS:	Family Provision. Application by the plaintiff who migrated to Australia to marry the deceased. Deceased has a hear attack 3 days after her arrival and dies a week later. Whether the plaintiff was part of the household and partly dependent. Large estate. In circumstances order for a legacy. - Application by daughters. Appropriate vesting date for legacy. Change of vesting date from 25 to 23 years for one daughter and legacy ordered for daughter omitted from will.
CASES CITED:	Kingsland v Macindoe (1989) VR 273 Petroholis v Hunter (1991) 25 NSWLR 343 McKenzie v Baddeley (Court of Appeal 3.12.91) Re Fulop deceased (1989) 8 NSWLR 679 Churton v Christian (1988) 13 NSWLR 241 Brown v Faggoter (Court of Appeal 13.11.98) Singer v Berghouse Luciano v Rosenblum (1985) 2 NSWLR 65 Anasson v Phillips Young J 4.3.88 Shearer v PT Young J 23.3.98
DECISION:	Paragraph 131

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 15 MARCH 2001

001487/98 - NATALIA SHCHERBAKOVA & 1 OR v NEALINGS EDWIN STAPLETON

002526/98 - LINDA EILEEN STAPLETON & 1 OR v NEALINGS EDWIN STAPLETON - ESTATE OF GRAHAME EDWIN STAPLETON

_______

JUDGMENT.

1   MASTER: These are applications under The Family Provision Act in respect of the estate of late Grahame Edwin Stapleton, who died on 25 December 1996 aged 59 years. The deceased was survived by his son and two daughters who are parties to these actions. He is also survived by his fiancee and her son, who are plaintiffs in 14871/98. His daughters are plaintiffs in matter 2526/98. I have ordered that both matters be heard together and the evidence in one BE evidence in the other.

2   The deceased made his last will on 4 April 1995 under which he appointed his son the executor. He gave two thirds of his estate to his son and one third to his younger daughter, Jean. He made no provision for his daughter, Linda, or for Mrs Shcherbakova and her son. He did leave, however, a draft will making provision to which I will refer later.

3   The assets of the asset appear to be as follows:

1. House at RMB 1720 Wisemans Ferry Road, Mangrove Mountain $390,000.00

Folio Identifier 811/529990
- 5 acres with house and 6
self contained units $350,000.00

Folio Identifier 812/52990
- 25 acres vacant land

Folio Identifier 1/207954 -
39 acres with 7 bedroom house
& equipment shed $410,000.00

2. General Store and residence
(tenanted) Lot 21 Somersby Road,
Somersby Folio Identifier
21/538202 $200,000.00

3. Factory 301 Manns Road,
West Gosford (tenanted)
Folio Identifier 7/219250 $580,000.00

4. House at 40 Pearl Beach Drive,
Pearl Beach
Folio Identifier 345/14592 $235,000.00

5. Cash at bank $32,450

6. Livestock $500

7. Furniture $1,000

8. Obsolete Farm Equipment $1,000

TOTAL: $2,199,500.

4   The costs which have been incurred, including the hearing, are as follows:

The plaintiff in 1487/98 $41,348.
The plaintiffs in 2526/98 $42,500.
The defendants in both matters $23,500.

TOTAL $122,348.

5   Other debts and administration expenses apparently have been met. Taxation matters have been brought up-to-date and rent has been received from the investment properties, which are the second and third ones mentioned above.

6   It is probably useful at the start to give a fairly short chronology of some of the events to put the matter in perspective.

7   The deceased was born on 24 July 1936. Mrs Shcherbakova was born in the Ukraine on 27 July 1950. The deceased married on 27 August 1956 and he had three children; Linda, born on 13 July 1968; the defendant Nealings, who was known as Neil, was born on 28 March 1970 and Jean who was born on 30 August 1977.

8   The deceased seemed to have accumulated a number of assets, as the size of the estate indicates. In the early 1980s he started building a six unit motel on the farm, which has not been completed, as he planned to use it for farm stay activities and similar enterprises.

9   On 18 August 1981, Dima Shcherbakova, Mrs Shcherbakova's son, was born.

10   To return to the deceased's family for the moment. In 1984 there was a move in that Linda, Jean and their mother moved from Mangrove Mountain to Pearl Beach and lived with the deceased's mother. They seemed to have spent weekends back at Mangrove Mountain.

11   However, things did not go well and on 6 January 1986 there was a separation between the deceased and his wife. She and the children moved up the road to 40 Pearl Beach Road. In 1987 they were divorced and in 1988 there was a property settlement.

12   The deceased became involved in other interests and in 1992 he had, at his farm, some 16 children who came from the Ukraine who were affected by the Chernoble catastrophe.

13   He looked after them and this obviously sparked some interest, as he commenced to correspond with Russians and a number of people in the Ukraine and elsewhere.

14   In 1993 Dima Shcherbakova won a competition at his school in the Ukraine and won a pen friend. This happened to be the deceased and communications started between them in 1994. Those communications extended, apparently, to Mrs Shcherbakova as well.

15   The deceased's will was made an 4 April 1995 and I have already referred to its terms. As a result of the correspondence that had ensued over a year or so, the deceased flew to the Ukraine via Japan and Russia. He spent some three weeks or so with Mrs Shcherbakova and her son at the house which was owned both by Mrs Scherbakova and also by her mother.

16   According to Mrs Shcherbakova, a personal relationship developed during that period and there was a proposal for marriage and plans made for her to come to Australia with her son.

17   Immediately he got back, the deceased set out to organise visas for Mrs Shcherbakova and her son. That went on until October 1996.

18   In the middle of 1996 the deceased injured his back and required some hospitalisation.

19   In July 1996, the defendant, Nealings, married his wife Karen. Ultimately they moved into the farm at Mangrove Mountain a short time before Mrs Shcherbakova came to Australia.

20   In August 1996 the deceased had a heart attack and he was admitted to hospital. At this stage he also went about giving instructions for a will to make provision for Mrs Shcherbakova.

21   On 12 November 1996 Mrs Shcherbakova and her son arrived in Australia. They were met at the airport by the deceased, a friend, Eric Hindes, and his wife Tania. They went to Mangrove Mountain on that day and moved into the house.

22   On 15 November 1996 the deceased had a heart attack and was admitted to Gosford Hospital. He remained in hospital and in late November it became apparent that he needed to have by-pass surgery. He went to Sydney to have this performed at Prince Alfred Hospital. The surgery was on 3 December 1996. Four days later, on the 7th, the deceased had a stroke and was paralysed. In died in hospital on Christmas Day, 25 December 1996.

23   The plaintiffs and Mrs Shcherbakova and her son had remained in occupation of his house on the farm. They continued to do so until 14 April 1997 when they left the property at Mangrove Mountain and moved to emergency accommodation in the district in which they were then living. She, in due course, obtained social security services and Mrs Shcherbakova's son continued his schooling and attended English classes. By mid 1998 he had obtained a position as an apprentice carpenter.

24   On 2 July 1998 probate of the deceased's will was granted.

25   In December 1999 Mrs Shcherbakova tried to contact her mother in the Ukraine and was advised that her mother had died a month ago. She was also told that her brother, her remaining relative, had also died. In January 2001 Mrs Shcherbakova and her son were granted Australian residency.

26   There is, of course, no doubt about the eligibility of Linda and Jean, both daughters of the deceased. Jean has only been joined in the proceedings so that proviso in the will that she take on attaining 25 years can be varied. She is 23 at this stage.

27   Mrs Shcherbakova and her son claim to be eligible persons and this has been the subject of much debate before me.

28   These proceedings were commenced prior to 28 June 1998, the date of the commencement of the Property Relationships Amendment Act, 1999. Mrs Shcherbakova, therefore, has to be a person who was living in a de facto relationship at the date of his death.

29   Under the principles which applied under the Act in force in 1998, she can also prove she is an eligible person by establishing that she was at some time part of the household of the deceased and she was partly dependent upon the deceased. The son, Dima, of course, would only establish eligibility on this later basis.

30   I will first deal with Mrs Shcherbakova's position.

31   The defendant does not submit that Mrs Shcherbakova did not intend to come to Australia to marry and live with the deceased when she flew into Australia. The defendant submits that when she arrived and saw the circumstances in which she was to live, she changed her mind, decided not to proceed with the marriage and left the deceased. In considering the circumstances, which I will discuss, it must be appreciated that the deceased could not speak Russian and Mrs Shcherbakova could not speak English, except in a very minor way.

32   Mrs Shcherbakova and her son, whilst residing in the Ukraine, which was part of the former Soviet Union, was reasonably well off financially and she lived in a house which was apparently reasonably comfortable. Her mother had a small farm outside of town. Upon the overthrow of the Soviet Union, she found life becoming more difficult. She had worked as a managing director of a child care centre where she had been employed since 1973.

33   In 1994, as a result, no doubt, of the overthrow of the Soviet Union, she was demoted to the position of an employee. By 1996 she was being told that her employment would be terminated at the end of the year.

34   In or about late 1993 the correspondence between Dima and the deceased commenced. It is quite clear that the deceased arrived in the Ukraine in April 1995 as a result of that correspondence and resided with Mrs Shcherbakova and her son for about three or four weeks. Clearly a relationship between them developed and there was a very clear request on the plaintiff's evidence from the deceased that they both move to Australia and live with him.

35   He made promises of support and a new life. It is also clear, on her evidence, that there was an engagement ring purchased and that Mrs Shcherbakova accepted his proposal to marry. They even attempted to obtain some form of marriage in the Ukraine.

36   According to Mrs Shcherbakova there was a sexual relationship between them and although some statements to others might be to the contrary, given to whom they were made, I am prepared to accept what Mrs Shcherbakova says on this aspect.

37   It was a difficult time for Mrs Shcherbakova after the deceased had left. She had committed herself to come to Australia and made up her mind that that is what she wanted to do and to live with the deceased. Her understanding was that if she left the Ukraine she would forfeit her citizenship, pension and job entitlements and that her internal passport would be destroyed. There is some uncertainty as to whether these things could happen. The practice seems to be that they did and she certainly believed that was the case.

38   As I have mentioned, the deceased set about facilitating the migration to Australia. True it is that the only way in which she was going to be able to come was if she fitted into the category of someone who was going to marry the deceased.

39   There are many letters which are in evidence which indicate the seriousness of the deceased's intention. He wrote to Members of Parliament, Government Departments and spent numerous periods on the phone to people, including people in Russia, in order to progress the matter. He also wrote to Mrs Shcherbakova in this period. Not many of those letters are in evidence, however one, Exhibit J to her affidavit, illustrates the matters that that correspondence included. He wrote, addressed to; "My dear people," and in response to a letter of theirs in July 1995 he wished Natasha a happy birthday, remembering her birthday was on 27 July. He talked of having her picture blown up and put up on his wall so that she was the last thing he saw at night and the first thing he saw in the morning. He reported that he was working on a vegetable garden and wanted to grow flowers. He then went on to ask about whether she had got her passport, whether she had been to the embassy, and other matters to progress the visa application.

40   He also, having referred to having met a man in Gosford who had a new wife from Russia, that she would at least have four people who were Russian speaking and with whom she could be friends when she arrived. Clearly he anticipated the difficulties she would have when she did come.

41   Prior to Mrs Shcherbakova coming to Australia, as part of the process for the visa, the deceased completed and lodged a Notice of Intended Marriage. This required him to obtain the consent of a marriage celebrant and the marriage was planned for 5 April 1997.

42   The next thing that happened, shortly prior to Mrs Shcherbakova arriving, was the preparation of a new will. That will was prepared by the solicitor who prepared the previous will and that still made the bequest to the son as to two thirds and as to Jean as to one third. It did, however, provide two things for Mrs Shcherbakova. It gave her a right to occupy the property at Lot 1720 Wisemans Ferry Road with the contents until she died or no longer wished to reside. It also gave her an annuity. The numerals show "$15,000", but in brackets, where the amount is written out in full, it is provided for that she receive $50,000. That was an annuity for life payable monthly in advance and it was required to be up-dated each year.

43   The circumstances surrounding this were relayed by two people who gave evidence in the matter. They were Mr Eric Hindes and his wife, Tatiana Efremova. They apparently were Russian speaking, or Russian by origin, and were able to assist the deceased in translations. Obviously the deceased had a lot to do with them in the period before Mrs Shcherbakova came to Australia.

44   Their evidence was not cross-examined upon and there is no reason why I should not accept it. They were outsiders, although naturally they had a Russian background. However, their evidence generally is inherently probable, given the documentary evidence of what the accused was doing and saying in 1995 and 1996.

45   As I have mentioned, the deceased had his first heart attack in August 1996. Mr Hindes went to hospital to see him and he was the person who was also looking after the property for him. At that stage the deceased said to Mr Hindes, "I'm really worried about Natasha because I have not changed my will yet." He went on to say, "The will must be changed because Neil will do nothing for them. He is not much good. He does not do the things I want him to do, but he is all I have got."

46   He went on to say that he would change his will at some stage. Mr Hindes contacted Mr King. Mr King went to see him, the deceased, in hospital. A few days later the deceased related to Mr Hindes that the solicitor had been to see him. He said that, "Yes, okay, it's been done. I can relax a bit now because I now that Natasha will be looked after." Mr Hindes said, "Are you happy?" The deceased replied, "Yes, I am happy."

47   All this, of course, occurred before Mrs Shcherbakova arrived in Australia. It also shows some of the tensions between the deceased and his son, Neal. This occasion of which evidence is given may well be a different occasion to that which Neal recalls when he and his father saw Mr King together. Clearly instructions were given. The will was found in the deceased's house. Unfortunately, it was not signed.

48   There was an affidavit from the solicitor. However, it is confused as to when events happened. He did not have any file to help him. He also speaks of needing to contact the deceased's accountant before he finished drawing the will. The will in evidence is clearly a draft. There is a space after the provision for an annuity as though someone was going to insert something else in there. Probably the fact of the matter is that the solicitor did not get around to doing it. The matter was not progressed by the solicitor once the deceased went into hospital with his second heart attack three days after the plaintiff arrived.

49   Prior to Mrs Shcherbakova's arrival, the deceased also tried to make the house appropriate. He moved some antique furniture into the house because he wanted her to have it. He was looking about and trying to get out some jewellery for her to have when she arrived. He did a number of things, but he unfortunately did not address what turned out to be the difficulty for Mrs Shcherbakova when she got here.

50   If one looks back on Mrs Shcherbakova's position, I think it is quite likely that she was considering migration to Australia before she met the deceased. She made, however a decision to do so when they were both together in 1995. Her circumstances in the Ukraine provided a substantial motivation for her to adopt this course. Like many Russians, she was living in the outlying states of the former Soviet Union and found life becoming more and more difficult after the collapse of the Soviet Union.

51   That impetus, for her to accept the deceased's proposal and make a decision to come to Australia, does not complete the picture. It is clear that she owned one of the two units in the house that she and her mother occupied. She could not take property with her, so what she did was to give up her entitlement to the house back to her mother. The other thing was that she had to make the decision to leave her ageing mother who was a worry to her. She tried to put in place arrangements for her mother’s care which unfortunately failed.

52   She also had a brother who was there who was to be left behind. There was also, leading up to her leaving, substantial difficulties put in the way of her leaving. Threats were made to her by the police about her son and other matters, the details of which I will not go into. I am quite sure she had real doubts as to whether she could ever return once she made the commitment to leave the Ukraine.

53   The language difficulties of the deceased and Mrs Shcherbakova would have been great, but the evidence at least shows that they had translators who could assist them, for instance in the telephone calls that occurred between the deceased and Mrs Shcherbakova. I do not think that the language difficulty would have been seen by them as a barrier by their marriage. The deceased was obviously contemplating arrangements to overcome this problem in Australia. Many people in this world have gone on to have successful marriages notwithstanding such difficulties.

54   There is, in my mind, no suggestion in the evidence that Mrs Shcherbakova, when she came to Australia, was not intending to marry the deceased. One could well imagine the anticipation of a new married life in a different land after some 15 years of loneliness. Unfortunately, such hopes were dashed by the tragic illness three days after she and her 14 year old son arrived. There is also no doubt that the deceased also intended the marriage. His actions clearly demonstrate this.

55   The circumstances of her arrival also brought her face-to-face with a situation which she was not expecting. At that stage the deceased was 60 years of age. He had been a bachelor for some 10 years and had behind him one marriage which was unsuccessful. He had a house and a farm, but when one looks at the photographs of it, one sees that perhaps the deceased was a collector of things. His daughter described life as being one where, if something broke, it was never fixed. One can see collections of machinery and other matters scattered about, as though things were ultimately going to be done, but never got to be done. It was somewhat untidy.

56   Mrs Shcherbakova was collected at the airport by the deceased, Eric Hindes and Mrs Efremova. Those two people both gave evidence as to the reaction that occurred when the party arrived back at Mangrove Mountain. Mrs Efremova described the house as being very untidy. She said the first plaintiff was somewhat shocked at the appearance of the place and she was very tired from the trip. She also noted the fact that she was not comfortable talking with English speaking people.

57   Mr Hindes himself also described the house as untidy and, in fact, filthy, the smell being offensive. He talked about the carpet being heavily soiled with dirt and grease; such stains which could not be removed. He also referred to the plaintiff, Mrs Shcherbakova, as being in a state of shock.

58   Mrs Shcherbakova herself says she was certainly not feeling very well. She was, in fact, nauseous and she had vomited. Her legs had swelling, no doubt as a result of the flight, but they did go down after about a week.

59   In her cross-examination she described how it took her a day or two to recover. She was not perhaps as outspoken about the state of the house as Mr Hindes and Mrs Efremova, but she described it as being not what she expected when a visitor was coming from another country.

60   The son described it as having a lot of rubbish.

61   I have spoken of her background. She was a well educated woman and obviously intelligent. She was well groomed. It is not surprising that she was upset.

62   The evidence of what happened over the next two days represents a somewhat confused picture.

63   There is evidence by, of course, the son Neal, and also by Mr Boehm, a friend. He reports the deceased, after a couple of days, saying that things were not as expected and that Mrs Shcherbakova and her son would lock themselves in the room in the evening. To a similar effect are statements made to Neal by his father, the deceased. Neal wanted to meet them, but his father indicated that they, in the evening, had locked themselves in the bedroom and would not come out until the morning.

64   Clearly the deceased was agitated about what had been happening on the 13th and 14th. The question of precisely what went on in those days is hard to resolve. Mrs Efremova said that according to her observations when she was there, the plaintiff and the deceased appeared to be sharing a bed. Mrs Shcherbakova herself says that they were sleeping together, although given her sickness, there is no doubt that there may have been some adjustments to accommodate that fact.

65   The other evidence that is available refers to what was being done by the plaintiff, Mrs Shcherbakova. Mrs Shcherbakova, in effect, set about cleaning up the place. According to Mrs Efremova, she was doing so much that the deceased asked her to stop. She had succeeded in washing out the entire house. There is also evidence about misunderstandings about guns and matters of that nature.

66   By the 15th, things had become quite difficult. The deceased reported to his son, according to his son, a further statement in which the deceased said that the plaintiff and her son were not the same people he had met in the Ukraine and they did not, "Want to have anything to do with me." At that stage Mrs Hindes and Mrs Efremova said that they effectively had come to try and sort things out. Mrs Efremova remembers this occasion. She recalls Mrs Shcherbakova being very upset and saying that, "A woman cannot be expected to live in this mess."

67   There was also some upset about some accusations of money, or some other property, being taken. Precisely what they are, is somewhat confused in the evidence, but it is not suggested there was any theft of which there is some evidence before me.

68   The discussions at that stage were between Mr Hindes, Mrs Efremova and the deceased. The former were obviously trying to sort out a situation which had become somewhat difficult.

69   In the conversations that occurred between Mrs Efremova and the deceased, she suggested to him that it would be good if Natasha could have a night out so the confusion could be sorted out. He said, "Okay." It was obviously a matter of some disappointment for the deceased. He came out and made comments to his son saying, "They have all gone, they didn't even leave a note," and he did not even know what was going on. Certainly there was confusion, no doubt caused by difficulty with language translation. At that stage the deceased did not feel well, he had pains in his chest and his son, Neal, took him to hospital. It became clear, according to a doctor when he was admitted, that he had had a heart attack.

70   The circumstances of that departure are, of course, central to the matter. What is critical is the plaintiff's intention when leaving. In her affidavit evidence, at paragraph 13, she said, "I intended that we should stay away for the night." She then recounts what happened the next day.

71   Her evidence in cross-examination was as follows:

"Q. You took Dima and you went to the Hindes's house?
A. So Tania and her husband had a conversation with Grahame and they agreed that it would be better to - for all of us, for myself and Dima and for Grahame as well, if we go to the Hindes' house for couple of hours and then a few hours after that, Grahame would come and - would come to that house, yes, he would come to Hindes' house. That - anyway I was explained this by way of Tania.

Q. You intended to stay away only for a couple of hours, is that what you are saying?
A. So, I just - what can anyone think of if you go to visit other people having only one dress, that means that you can't go forever or for long time.

Q. The question I asked- you gave evidence a few moments ago that when you left with Mr Hindes that evening you intended to leave for a few hours, is that correct?
A. That is how it was explained by Tania that he agreed that was terms.

Q. What was your intention?
A. I was upset and I was still frightened.

Q. So you hadn't any intention as to how long you were going to stay away?
A. I had no intention to stay at that house for a long period of time or even for two days.

Q. So you took Dima and you left with Mr Hindes?
A. Yes, I took Dima and I went there but I didn't take her with me even a small bag with make-up.

Q. So you were not intending to stay the night, is that what you are saying?
A. No.

Q. So that is contrary to what you said in paragraph 13 of your affidavit of 30 August 2000? A. Yes, maybe that contradicts what is written in paragraph 13, but what happened in fact is that Tania tried to contact Grahame by phone but she was unsuccessful and that is why finally she suggested to me it would be better if we stayed with Dima overnight and go back next day morning."

72   The evidence at page 24 of the transcript clearly indicates that the next day she returned and found the note on the door which had been put there by the deceased's son to the effect that the deceased was in hospital. She continued living there during his illness and, indeed, up until April 1997 when she left for the emergency accommodation.

73   She continued to visit the deceased when he was in hospital. In paragraph 38 she speaks of visiting him every day. When he was to Prince Alfred Hospital in Sydney, she went down there for some time and stayed with people she had met, but did not stay the whole time.

74   Clearly she spent quite a bit of time at the deceased's bedside. There has been evidence by a number of people, including for instance Mr Boehm, that when she was there, she spent the time looking out of the window, barely looked at the deceased and seemed uninterested. Witnesses spoke of her lack of affection. That matter is one that has to be seen in context. Mrs Efremova in her evidence talks of her observations of the plaintiff and also the "Russian nature" which were evident in the expressions of the plaintiff.

75   She says that the first plaintiff carried a sullen expression which were characteristic with, "Russians and Ukraine people." She referred to the fact that from her observation the plaintiff cared deeply for the deceased and she gave examples of what she did in hospital to help him.

76   The other thing to be remembered is that the deceased was not well and that there were the language barriers between Mrs Scherbakova and the deceased. It was also not an easy time for Mrs Scherbakova. She was in a difficult situation and that could also have affected her.

77   The plaintiff was cross-examined before me. She gave her evidence in a careful way. There were some changes in her evidence between what she said in the witness box and her affidavit, but I do not regard those matters as of any great substance.

78   On the evidence that she gave, it is clear to me that she did not intend to break off the relationship. What was intended was what she described in her cross-examination.

79   There were a couple of hours away which turned into a night. There are a number of matters which support this. One finds that in the evidence in the two days that Mrs Scherbakova was acting consistently with maintaining the relationship. She was cleaning up the house and she was working there. She had done a great deal to try to make it more habitable and livable.

80   If the marriage had been so bad that it was something she could not have lived with, one would thought that the reaction would have been immediate as soon as she got there. Her work points to the contrary.

81   The other thing is that there is also the continued attendance at hospital caring for the deceased after the 15th. Presumably if she wanted to, and made up her mind to leave on the 15th, she could have left there and then. She had the friends, Mr and Mrs Hindes who, no doubt, would have put her up and she then could go to the emergency accommodation.

82   Accordingly, as I have indicated, I am satisfied there was not an intention to break off the marriage or the relationship, but merely to have some time away for an hour or a night. Unfortunately, on her return things had changed dramatically.

83   The first question that arises is whether or not Mrs Scherbakova and the deceased were living together as husband and wife on a bona fide domestic basis. This must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v Anderson & Ors (1992) DFC 95120. They referred with approval to the decision of Mr Justice Kearney in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour in dealing with the expression in The Family Provision Act 1982 after reviewing the authorities said at page 685 the following:

”I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459):

"1. The duration of the relationship.

2. The nature and extent of the common residence.
3. Whether or not a sexual relationship existed.

4. The degree of financial interdependence and any arrangements for support, between or by the parties.

5. The ownership, use and acquisition of property.

6. The procreation of children.

7. The care and support of children.

8. The performance of household duties.
9. The degree of mutual commitment and mutual support.

10. Reputation and 'public' aspects of the relationship.

His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459): 17.10, 'The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance. As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case.”

84   I have no doubt that Mrs Shcherbakova and the deceased intended to live together in a relationship before they married. The whole plan of the deceased was to this effect. Before her arrival, this of course could not happen.

85   She arrived in Australia as a fiancee and her position was interrupted after a few days. There is, thus, little opportunity for the incidents of a de facto relationship to which I have referred above to arise. For instance, acquisition of property, intermingling of finances.

86   There was also no ability for the new relationship to be communicated to anyone, or for there to be the public face of such a relationship which is an important matter.

87   It is clear, of course, that hospitalisation does not interrupt cohabitation of either married or de facto couples. However, in this case, I think it really is a situation of there not being enough time for the opportunity for such a relationship to arise.

88   I am satisfied that they were not living in a de facto relationship at the date of death of the deceased.

89   The next question is whether she could be described as part of the household. There was an extensive discussion as to the meaning of "household" in Kingsland v Macindoe (1989) VR 273 and it seems clear that the word in its ordinary sense is as set out in the Oxford Dictionary.

"The holding or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment."

90   I think it was clear that the son would be part of the household. They came into the house, slept there, worked and cleaned. Clearly in those days she was part of the household. She came back after a night's interruption and resumed as part of the household. After the deceased went to hospital, it still remained his house and she remained as part of that household until the time that he died. It was a separate house, on a different block from the house occupied by the son Neal.

91   I am quite satisfied that she was part of the household.

92   The next question is whether or not she was partly dependent upon the deceased.

93   In Petroholis v Hunter (1991) 25 NSW LR 343 at 346 the court considered the meaning of 'dependency'. At page 346 the court had the following to say;

“I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon one another is a question of fact. No doubt one of the commonest forms of dependency is a financial one in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.

But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother and their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.

This accords with what Samuels JA said in Ball v Newey (1998) 13 NSW LR 48 at 491 that '"dependent in the ordinary sense of the word means
the condition of depending on something or on someone for what is needed.' If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependants analogous to but distinct from financial dependence as Samuels JA suggested in Ball v Newey (at 491) then surely a mothers services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.

To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J 1 June 1989, unreported) but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

94   In McKenzie v Baddeley (Court of Appeal, unreported, 3 December 1991) his Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as 'financial, economic or material dependency, not a mere emotional dependency.' Importantly in that case the majority held that the word 'partly' in the phrase 'partly dependent' does not mean 'substantially' but meant 'more than minimally' or perhaps 'significantly'.

95   In the circumstances of this case, the plaintiffs’ dependence was financial. This arises because they were here in Australia without accommodation and it was the deceased who provided the accommodation. In a very real sense they were dependent upon him for accommodation and had the benefit of that up until the date of his death and even thereafter. They were also dependent upon him for the provision of food and, indeed, the evidence talks of her using scraps of bread that were brought on to the property to feed the animals. All this continued up until Christmas. It is a fair period of time; a month and a half. I would not describe that dependency as minimal. In my view it is more than minimal.

96   I am satisfied that both the plaintiff, Mrs Scherbakova and her son, Dima, were part of the household of the deceased and also partly dependent upon him and are legible persons.

97   It is, however, necessary under s 9 (1) of The Family Provisions Act to determine whether there are factors warranting the making of the application. This matter has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1989) 8 NSWLR 679 at McLelland J described that expression in the following terms:

"Secondly, the sub section appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application on the other; otherwise the sub section would be point less. This means that in a particular case the court might determine that there are 'factors which warrant the making of the application' within the meaning of the sub section, and yet go on to decide that the application should fail. Since the sub section applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9 (1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9 (1) (former spouses, and sometime dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the sub section are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the sub section is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the court in the event that it determines the preliminary question adversely to the plaintiff, not to go to determine the application, but 'refuse to proceed with the determination of the application.

98   In Churton v Christian (1988) 13 NSWLR 241, the court approved this statement. Priestley JA at page 252, after setting out and approving the statement added:

“To this I would add that although the classes affected by s 9 (1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural object of testamentary recognition.”

99   These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

100   In the present case Mrs Shcherbakova was arriving with her son as the fiancee of the deceased. Her arrival had been planned for over a year. She had been uprooted from her own country at her own volition and she had left property behind. These matters of themselves would clearly indicate that the deceased would intend to provide for her. The attempt by the deceased to obtain a draft will which made provision, simply reinforces the fact that she was a person who was a natural object of testamentary recognition.

101   In these circumstances I am satisfied that there are facts warranting in what I have described as the traditional sense. If that is not the appropriate test, then one has no prospects of success.

102   In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

103   I turn to the plaintiff's situation. She has no assets and no savings. She presently is in receipt of a New Start allowance of $408.40 per fortnight. From that she has to pay for her emergency accommodation, some $300 per fortnight. She is presently apparently enrolled in a course at the Ourimbah College Campus where she is studying old age care, four days a week. It does not incur any expense under the New Start programme. She has expenses which use up her funds quite easily.

104   She suffers from a back ailment and she has to have chiropractic treatment. She is in fact also supported by her son, the second plaintiff, who is working in his final year of his carpentry apprenticeship. She has some advice that she has a disease of the central nervous system, although details are not be available, and she is due to have a gall bladder operation next month.

105   I have already dealt with her relationship with the deceased. It is necessary to look at what might be appropriate in the circumstances to see whether some provision should be made for her. She is clearly not a wife or a de facto partner of the deceased. In relation to such a clamant one finds statements in Luciano v Rosenblum (1985) 2 NSWLR 65 and other cases where there has been a marriage for a long time, of a need being satisfied by the provision of a home, security of income and some funds for the contingencies of life. One simply cannot equate the plaintiff's position with that situation.

106   However, in the present case, the plaintiff is in a somewhat unique situation. This arises because of the fact that she had thrown in her lot in a substantially emotional and financial way with the deceased. He was what prompted her to make the move from the Ukraine. No doubt she was considering coming before that but he was the impetus. It was what he held out and what, perhaps, Australia held out that led her to come. It involved her in the difficult choice to which I have referred of giving up her family and it also involved her in giving up her property.

107   In submissions it was suggested that she ought to have up to twenty per cent of the estate. In this case we are dealing with what, in effect, is a large estate. The question of what is an appropriate provision in respect of a large estate is dealt with in a number of cases and, for example, Young J in Anasson v Phillips, 4 March 1988, said the following:-

"...with a very large estate there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412."

108   There are other cases which have referred to this need. See, for example, Gorton v Parkes 17 NSWR 1.

109   One of the measures that I think is useful in determining what is an appropriate provision for the plaintiff is what the deceased himself contemplated. What he contemplated was providing her with a permanent residence at his home and a secure income of either $15,000 or $50,000 per annum. The reason the deceased contemplated that was obviously because he could see what difficulties might arise. Unfortunately, as the progression of this litigation so clearly illustrates, those real difficulties have arisen and Mrs Shcherbakova is now in her present situation. It would be futile to try and make some provision out of the existing assets of the deceased, given the relations between the relevant parties.

110   One of the things that is advanced is the provision of accommodation. There is evidence before me that a three-bedroom dwelling could be obtained in Gosford from between $220,000 and $260,000. Perhaps her needs are not as great as a three bedroom home but such costs only provide for a modest home. Perhaps she could obtain something for a little less. She is attempting to make her way, as the evidence of her doing a course suggests but she needs something behind her. The moment she gets employment and other accommodation she will be met with a claim for $19,781. This is the amount which is due to Central Coast Emergency Service for her past accommodation. It seems to me that a legacy in her favour of the order of $285,000 would be appropriate, if the estate can afford it, and I will return to that aspect later.

111   I turn to the claims of the daughters and deal with Jean's claim. She is single and aged 23. She presently lives with her mother and step-father at Woy Woy. She works at K Mart and receives a wage of $300 net per week which is inclusive of her expenses. She has savings of $7,000 and a motor bike. She says that she wants to move out and buy a unit so that she can be independent. This seems to be a responsible move on her part. To change the vesting date would seem appropriate and in accordance with the current view (see Pryke v Public Trustee, Young J, 16 December 1997 and Dziubinski v Malcolm, Cohen J, 21 October 1991). I see no difficulty in acceding to her request.

112   I turn to the claim of Linda. She is 32, married and has no children. She and her husband have recently purchased a house at East Gosford for $207,000. They owe Westpac $187,000. She and her mother have a take-away food business at Gosford which was purchased for $90,000, her mother advancing her a half share of that capital. She is currently studying at Ourimbah doing commercial cookery and training to be a chef. She will be qualified by the end of this year. Her income from her business is $400 per week and her husband's income is $500. They manage their expenses appropriately. She has some savings and there is a credit at this stage of $10,000. She has some small liabilities as well as owing the amount to her mother and to the bank. She is in good health.

113   It is necessary to look at the relationship between her and her father. It was on 6 January 1986 that the separation occurred and that Linda and Jean went to live with their mother at 40 Pearl Beach Drive, Pearl Bay.

114   In February 1986 Linda returned to Mangrove Mountain to collect some of her and Jean's personal possessions. The deceased responded to this visitation with somewhat of an outburst. He picked up her drawers, took them outside and up-ended them, throwing her belongings out into the garden. The defendant tried to play down this incident but I have no doubt it was a somewhat terrifying occasion for Linda at that stage.

115   Unfortunately, this problem escalated. It is apparent that the deceased was extremely upset at this time. He was making calls to Life Line and his brother. He made threats to the effect that he was either going to shoot himself or his wife. These threats were conveyed by people who received them to Linda and her mother so that they could protect themselves. This they did - they had a very large lump of wood at the front door in case it was needed.

116   This situation must have been somewhat frightening for Linda at her young age. No one ever disabused her of the passing of that threat and the danger that was implicit in it. There was a meeting in 1996 when the two of them happened upon each other at a service station but the evidence does not deal with that in any satisfactory way.

117   One of the things that did happen was that Linda found out from her friend that her father was in hospital. Her immediate reaction was for her to make an approach to him. She went there to see him when he was in hospital.

118   In my view there can be no blame attached to Linda; she was young when it happened; her father was more mature and he could have easily repaired the damaged in the relationship. Instead, he chose what appears to have been a new life and ignored his daughter.

119   She has spoken in her affidavit evidence of the needs which she has advanced. She talks of wishing to be able to repay her debts of $178,000 and $45,000 and she also wishes to start a new business. She wants to obtain a restaurant at Terrigal, sell the existing business and use her new skills in that area. The other thing that she spoke of was to sell her home in the existing area and move into a better class area in Gosford and spend some $500,000 on a house there.

120   I turn to discuss some of the principles which apply in these matters. It is important that the parties realise that the Court cannot address what is prima facie an unfair situation. Linda is in that unfair situation. She was cut out of the will by her father, probably for what he then thought were appropriate reasons but really, on reflection, are not. Her sister was not cut out of the will. The contrast is stark. Probably the sister was not cut out because she was younger.

121   In this situation the Court cannot, as I have said, simply remedy the unfairness. All the Court can do is act upon the principles which are established. The Court is here only to provide such amount as is appropriate where someone has been left without adequate means for their advancement in life, maintenance, education as is referred to in s 7 of the Act.

122   Normally, when talking of the provision a parent should make for a son or a daughter, it is not thought appropriate that a child should be provided with a debt-free home. In Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, 23 March 1998, his Honour had the following to say:-

"The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.
Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own."

123   However, all these matters very much depend upon how large is the estate and what are the competing claims. The only competing claim in the present matter is that of the defendant.

124   The defendant is 30 years of age and he is married. He has two young children. He is in good health at this stage of his life. His financial circumstances are as follows. He and his wife jointly own a property at 53 Birdwood Avenue, Umina; its rent is $175 per week and it is worth approximately $150,000. There is a mortgage on the property to the Newcastle Permanent Building Society of $75,749.78. He also owns a property at 35 Coral Crescent, Pearl Beach, inherited from his paternal grandmother, worth $230,000. There is a motor vehicle worth $8,000. He has chattels of a small value. His superannuation entitlement is something in excess of $40,000. He also now has his own business which has assets of some $26,000. His income for the year ended 30 June 2000 was $71,224.

125   It is important to also, in this case, be aware of the assistance that he gave to the deceased. He was the one who, of course, lived at home with the deceased. As his father helped him when he was growing up he also was of help to his father. He first started work, aged 16, in a quarry working very early in the morning and occasionally night shifts. Most of his income for the first couple of years would go to the deceased. It is clear on his evidence that he did help the deceased. He talks of life being somewhat difficult and probably this may be a reflection on the problems I have talked about earlier. He worked, on his estimate, some 35 to 40 hours a week on the farm whilst working at the quarry. He would feed the animals. It was not a large property but obviously there were lots of things to be done. Somewhat more of these duties fell upon him after his father had an accident in 1995 when he fell out of a tree.

126   He resides in the larger home on the property. It has a separate title and the situation that emerges is that even if all of the orders that I am contemplating are made, he will clearly retain this property. He will thus have at least his own unencumbered home worth $410,000. He will have his investment property, a beach home which is unencumbered, worth $230,000, which apparently is not used to a great deal. He is therefore, one could say, perfectly secure at this stage in his life.

127   Effectively, there is no competing claim and even at the level I was considering, the defendant will still receive a substantial amount more than the home in which he is living from the estate.

128   So far as Linda is concerned, given the absence of any competing claim, it is thus appropriate to give her a good head start in life. The proposal for a restaurant shows a maturity in development. The history that she described of her experience obviously means that this is not a venture that has been thought up without background knowledge. She seems to be a careful and serious person and I have no doubt that she will take adequate advice before investing in any such venture. Her desire to move to the next suburb and upgrade her home I do not think is an appropriate need. She has started on the home ownership trail but I also think that provision now for her to relieve herself from the debts that she has would be very beneficial. It is precisely this time in a young person's life when they are starting in a married life, working hard to build up their situation in life that capital, if it is available, is important. In my view an appropriate legacy for her would be $350,000.

129   I return to a consideration of what I was discussing with Mrs Shcherbakova and her son. I have already indicated an appropriate amount for her, but so far as her son is concerned, he seems to be doing well. His English is good; he gave evidence clearly in the witness box and he seems to have assimilated in Australia. Although he is in his final year of carpentry, he has spoken in his affidavit of a desire to further his education. This is to be encouraged and a small legacy is appropriate.

130   It is plain the deceased contemplated a life together with Mrs Shcherbakova and her son and he recognised that he wanted to have the son here, to help him and to give him a start in life. In my view a legacy of $20,000 is appropriate.

131   Accordingly, the orders that I make are:-

(1) The plaintiff Mrs Shcherbakova receive a legacy of
$285,000.
(2) The plaintiff Dima Shcherbakova receive a legacy of
$20,000.
(3) The plaintiff Linda Stapleton receive a legacy of
$350,000.
(4) I vary the will by substituting in cl 3 for the words
"25 years", the words "23 years."
(5) I order the plaintiffs' costs in both actions on a
party and party basis and the defendant's costs on
an indemnity basis be paid and retained out of the
estate of the deceased.
(Ms Barham sought a stay of 28 days against
both plaintiffs.)

MASTER: I will grant a stay of 28 days upon the usual terms.

oOo

Last Modified: 04/03/2001