Skyllas v Public Trustee

[2006] NSWSC 606

CITATION:	Skyllas v Public Trustee [2006] NSWSC 606
HEARING DATE(S):	26, 27, 28 September 2005 and 9 March 2006 (written submissions to 6 June 2006)
JUDGMENT DATE :	21 June 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	3034 of 2002 Anastasia Skyllas v Public Trustee (1). I order that the summons be dismissed. (2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs. 5689 of 2004 John Skyllas v Public Trustee (1). I order that the summons be dismissed. (2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs. 6434 of 2004 Michael Skyllas by his tutor the Protective Commissioner of New South Wales v Public Trustee (1). I order that the summons be dismissed. (2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.
CATCHWORDS:	Succession. Family Provision. Claims by estranged widow and two adult sons (one being a diable person). Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for her or his proper maintenance. Each Plaintiff must establish her or his claim upon its own merits. Competing claims of Plaintiffs and another beneficiary. Death of one Plaintiff after hearing and before judgment. Effect of that death upon claims of surviving Plaintiffs.
LEGISLATION CITED:	Family Provision Act 1982 Guardianship and Administration Act 1986 (Victoria)
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse [1994] 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Anastasia Skyllas (Plaintiff in 3034 of 2002) John Skyllas (Plaintiff in 5689 of 2004) Michael Skyllas by his tutor, The Protective Commissioner of New South Wales (Plaintiff in 6434 of 2004) Public Trustee of New South Wales (Defendant in all proceedings)
FILE NUMBER(S):	SC 3034 of 2002; 5689 of 2004; 6434 of 2004
COUNSEL:	Mr. D. Williams (Plaintiff in 3034 of 2002) Mr. John Skyllas (Plaintiff in person in 5869 of 2004) Mr. L. Ellison SC (Plaintiff in 6434 of 2004) Ms P. Gormly (Defendant in all proceedings)
SOLICITORS:	MacElbing, Mednis & Associates (Plaintiff 3034 of 2002) E. H. Tebbutt & Sons (Plaintiff in 6434 of 2004) B. Maher (Defendant in all proceedings)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 21 June 2006

3034 of 2002 ANASTASIA SKYLLAS –v- PUBLIC TRUSTEE

5689 of 2004 JOHN SKYLLAS –v- PUBLIC TRUSTEE

6434 of 2004 MICHAEL SKYLLAS by his Tutor, THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES –v- PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: These are three proceedings under the Family Provision Act 1982.

2 By summons 3034 of 2002 filed on 5 June 2002 Anastasia Skyllas claims an order for provision for her education, maintenance and advancement in life out of the estate and/or notional estate of her late husband, Sakellaris Skyllas (to whom I shall refer as “the Deceased”), who died on 11 March 2001, aged 76. They separated in July 1973, but were never divorced.

3 Of the marriage of Anastasia (to whom I shall for convenience, and without intending any disrespect, refer as such or as “Mrs Skyllas”) and the Deceased were born three children, Michael (who was born in 1954), John (who was born in 1959) and Constantine, known in the family as Con (who was born in 1962).

4 By summons 5689 of 2004 filed on 20 October 2004 John Skyllas claims an order for provision out of the estate of his late father, the Deceased, together with an order extending the time for the making of the application. It should here be recorded that that Plaintiff instituted the proceedings in person, and conducted the proceedings, including the hearing, in person, without the benefit of any legal representation.

5 By summons 6434 of 2004 filed on 29 November 2004 Michael Skyllas, who acts by his tutor, the Protective Commissioner of New South Wales, claims an order for provision out of the estate of his late father, the Deceased, together with an order extending the time for the making of the application.

6 By agreement of all the parties the three sets of proceedings were heard together, and the evidence in each, so far as was relevant, was treated as evidence in each of the other proceedings.

7 The Deceased left a will dated 14 March 1983, probate whereof was on 2 July 2002 granted to John Skyllas and Constantine Skyllas, two of the executors appointed under the will. By that probate “leave is reserved to Michael Skyllas to come in and prove the will upon him being capable of doing so”. Subsequently, in consequence of proceedings heard by Palmer J in the Probate List an order was made on 24 September 2003 revoking the foregoing grant of probate and ordering that letters of administration with the will annexed thereto be granted to the Public Trustee. Such a grant was thereafter made on 2 February 2004.

8 By that will the Deceased appointed his three sons, Michael, John and Constantine Skyllas to be executors. The dispository part of the will is as follows,

I Give Devise and Bequeath
Equal share of my properties and belongings is for Michael John and Constantine Skyllas of 20 Amsterdam Street Richmond Melbourne
Bank accounts and cash on hand is to pay for my expenses.

S. Skyllas

And only if they have the name of SKYLLAS

The property to be sold by Andreas Peyiotis (Real Estate Agent)

30 days advertising for auction.

12.7.94 S. Skyllas

9 The inventory of property discloses the following assets:

Real estate
796 Victoria Road, Ryde, to which an estimated value of $332,000 was ascribed

Cash investments and deposits

Westpac Deeming Account 732-088 52-1473 $12,113

St. George Fixed Term Investment Account 392 023 681 $28,000

10 A valuation of the real property at 796 Victoria Road, Ryde on 12 October 2004 disclosed its market value at that date as being $500,000, and at the date of the death of the Deceased, 11 March 2001, as being $350,000. Subsequently the Ryde property was sold for $455,000, settlement taking place in mid-May 2006.

11 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since any successful Plaintiff will be entitled to her or his costs out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to his costs out of the estate. It is estimated that the costs of the Plaintiff Anastasia Skyllas will total almost $48,000 for a two-day hearing (with an additional $4,280 for each subsequent day), the costs of the Plaintiff Michael Skyllas will total between $30,000 and $31,000 (for a two day hearing), whilst the costs of the Defendant the Public Trustee in the three sets of proceedings will total $25,000. In addition the Defendant’s commission on proceeds of sale of realty, in an amount of about $14,000, will be payable out of the estate. Further, there appears to be an outstanding liability in the estate of the Deceased, being the costs of a firm of solicitors which acted for the Defendant in the probate proceedings and also, apparently, for a short period in the present proceedings. Those costs total a little over $54,000 (although a figure of $65,000 is also mentioned).

12 In an affidavit filed on behalf of the Defendant (being that of Nabil Rahme, Branch Manager of the Chatswood Branch of the Public Trustee, sworn on 9 December 2004) it was estimated that, excluding the costs of the present proceedings and “the Plaintiff’s legal costs for earlier proceedings”, it was likely that the net distributable estate would be in an amount of about $438,000. That estimation was made upon the basis that the estimated value of the Ryde property was $500,000. Since the Ryde property was sold for $455,000, it appears appropriate that the foregoing figure of $438,000 should be reduced by $45,000, resulting in a figure of $393,000 as the likely value of the net distributable estate.

13 However, it would appear that that figure does not take into account either the claim of the firm of solicitors to which I have referred, in an amount of either $54,000 or $65,000, or the costs of the present proceedings. Further, it is unclear to me whether, in performing the foregoing calculation, Mr. Rahme has taken into account the other assets of the estate of the Deceased, being cash investments and deposits totalling about $40,000. It is appropriate, in those circumstances, for the Court to adopt a somewhat cautious approach to the value of the estate available for distribution among the three named beneficiaries, and to proceed upon the basis that the net value of the estate available for distribution is no more than about $376,000 (calculated as being $469,000 (representing the proceeds of sale of the Ryde property, $445,000, together with the balance held by the Defendant to the credit of the Deceased, about $24,000); less Defendant’s commission, $14,000, legal costs due to solicitors in respect to probate proceedings, $54,000; Defendant’s total costs in respect of present proceedings, $25,000; totalling about $93,000). It is likely, however, that the foregoing figure of $376,000 is too high, as it appears not to take into account the costs and any estate agent’s commission associated with the sale of the Ryde property.

14 In the affidavit of administrator filed on behalf of the Public Trustee in proceedings 6434 of 2004, the possibility was raised that there may be a partial intestacy in respect to the residue of amounts held in bank accounts and cash after those funds be used “to pay for my expenses”. In such event, any such undisposed of residue would pass to Anastasia Skyllas, widow of the Deceased, upon intestacy.

15 The Plaintiff widow, Anastasia Skyllas, was born in Port Said in Egypt on 12 March 1927 and is now aged 79. She married the Deceased in Port Said on 1 November 1953. As I have already observed, she and her husband separated in July 1973, but were never divorced.

16 The Deceased was born in Athens in Greece on 25 February 1925. In 1929, when he was four years of age, he together with his parents and his siblings, went to live in Egypt. The marriage of Mrs Anastasia Skyllas and the Deceased was the first, and only, marriage of either of them. The Deceased died, as a result of a cerebral haemorrhage, on 11 March 2001, aged 76.

17 The eldest child of the Deceased, Michael (who is the Plaintiff in proceedings 6434 of 2004) was born in Egypt in late 1954. The Deceased and his wife and son migrated to Australia, arriving in this country on 13 February 1956, at which time Michael was a little over a year old. They settled in Melbourne, where they acquired a milk bar business, residing upon the premises. Mrs Skyllas worked in that business with the Deceased for seven hours a day for up to six days a week throughout the period from 1956 to 1967. She was not paid for her work in the business. The Deceased controlled the family finances, and attended to payment of all bills and outgoings.

18 The other two children of the Deceased were born in Australia, John in 1959 and Constantine in 1962. As well as working in the business, Mrs Skyllas had the chief responsibility as homemaker and parent to their three children.

19 By 1963 the Deceased and Mrs Skyllas were able to pay off the loan which they had taken out in order to purchase the business and residence. In about 1966 the business was converted to a fish and chips shop, which they operated for the next two years, selling the business and residence to a rival fish and chips proprietor in 1968.

20 In 1961 the Deceased had purchased a block of land at Healsville, near Melbourne, for 1,500 pounds. However, that land remained vacant, and it was ultimately resumed in 1994, the Deceased being paid compensation of $20,000 at that time.

21 Whilst visiting kinsfolk in Sydney in 1964 the Deceased and Mrs Skyllas saw a house at Ryde available for purchase. Although in a conversation with his wife the Deceased said that that property would be purchased in the joint names of the two of them, when he ultimately effected the purchase shortly thereafter, for 6,000 pounds, he informed his wife that, “I have bought the property in Ryde in my name. You can do nothing about it.” That is the property which now constitutes the chief asset in the estate of the Deceased.

22 After the purchase of that property at 796 Victoria Road, Ryde (to which I shall refer as “the Ryde property”) the Deceased and his family continued to reside in Melbourne, whilst the Ryde property was rented out. The loan which had been obtained in order to effect the purchase of that property was repaid in about 1969.

23 After disposing of the fish and chips shop in 1968 the Deceased then commenced employment as a process worker with General Motors in Melbourne. Apparently there were matrimonial problems between himself and his wife, and they separated for a few months in 1968. After reconciling, the Deceased and Mrs Skyllas removed to Sydney in November 1968. They resided in the Ryde property until 1973, when they separated permanently, and Mrs Skyllas returned to Melbourne with the children (who were at that stage aged between 19 and 11). During their time in Sydney Mrs Skyllas had continued to perform the role of homemaker and mother, being the parent primarily responsible for the children. Evidence was given concerning the problems in the household, the accusations of infidelity made by the Deceased towards his wife, and the violence manifested by the Deceased towards Mrs Skyllas and Michael.

24 After her return to Melbourne in 1973, Mrs Skyllas had no further contact with the Deceased. He remained in Sydney, continuing to reside in the Ryde property. He paid to her maintenance of $10 a week for each of John and Con and $15 for herself. Those payments for the children continued until each child left school, and the payments for Mrs Skyllas herself terminated when the Deceased, in consequence of illness, ceased work in about 1986. To that time he had been employed as a machinist by AWA in Sydney. When he ceased work the Deceased received a termination payment (in an amount not disclosed in the evidence), and in 1990 he received a superannuation lump sum payment of about $40,000.

25 The Ryde property of the Deceased was described by Mrs. Skyllas as being constructed of double-brick, having three bedchambers, and having a large yard and a garden, with a garage and driveway.

26 It was the evidence of Mrs Skyllas that during the course of their marriage the Deceased had also bought and sold a property at St. Albans in Victoria in the early 1960s, although she was not aware of the purchase price or sale price thereof or what the Deceased did with the proceeds of sale.

27 In addition to the assets disclosed in the inventory of property, Mrs Skyllas said that at the time of his death the Deceased had “various belongings of unknown value” and that in 1982 he had owned a Nissan Bluebird sedan motor car.

28 In 1975, about two years after they returned to Melbourne, Michael suffered a mental breakdown (apparently the manifestation of schizophrenia and depression), which resulted in him ultimately being placed in a psychiatric establishment.

29 In about 1975 Mrs Skyllas sold for about $20,000 a house which apparently she had acquired in Brighton Street, Richmond (a suburb of Melbourne). With the proceeds of that sale she purchased for $34,500 the house property at 20 Amsterdam Street, Richmond, in which until recent times she continued to reside. Michael gave her financial assistance in making that purchase, since she was not able to obtain a bank loan, on account as her status as a pensioner. Mrs Skyllas repaid Michael by instalments for the financial assistance which he had given to her for that purchase, and she did not require him to pay any board for residing with her in the Amsterdam Street residence. That property, which is unencumbered, was described by Mrs Skyllas as being small. It contains three bedchambers, a kitchen, a loungeroom, and a bathroom and toilet, but has no garage.

30 In about 1984 Mrs Skyllas gave her son Con “several thousand dollars” to assist him in purchasing a flat in Richmond. In 1992 she gave Con a further $17,000 to help him put a deposit on a house and she gave him $3,000 to assist him to acquire a new carpet in that house property.

31 As will shortly emerge, Mrs. Skyllas, on account of her deteriorating physical and mental condition, is now resident in a nursing home and a management order has been made in respect to her legal and financial affairs. However, at the time of the commencement of the present proceedings she was able to give evidence concerning the following matters, relevant to her claim.

32 At the present time Mrs Skyllas who is currently aged 79, receives an age pension, which at the commencement of her proceedings was in an amount of about $202.90 a week. She also had bank savings of $38,000, upon which she earns some interest. Her assets consisted of:

House property situate at and known as 20 Amsterdam Street, Richmond, having an estimated value of $300,000.

Savings with Commonwealth Bank $38,000.

Furniture and effects $2,000.

Jewellery $2,000.

33 Mrs Skyllas has no current liabilities.

34 Mrs Skyllas suffers from a number of health problems. In January 2001 she was diagnosed with breast cancer and she underwent a mastectomy in February of that year. From then until May 2001 she underwent radiotherapy and chemotherapy. It is necessary for her to be reviewed by a cancer specialist every four or five months. She understands from what she has been told that her cancer is currently in remission.

35 Mrs Skyllas has suffered from diabetes for eight or nine years, and takes medication to control that condition. She also has cataracts on both eyes, which will require surgery in the near future.

36 From 1975 Mrs Skyllas had continuing responsibilities towards Michael, who has suffered from chronic schizophrenia. Over the last six and a half years he has been an involuntary patient in three psychiatric hospitals. He was first admitted to a psychiatric hospital in 1976, when he was aged 22. In 1996 he suffered damage to his oesophagus, in consequence of swallowing caustic soda. In December 2001 Michael was diagnosed with lymphoma. His physical and mental health deteriorated since that time, and he died on 26 January 2006.

37 Mrs Skyllas’s son John (the Plaintiff in proceedings 5689 of 2004) and her grandson Jason (John’s son) have been residing with her in the Amsterdam Street residence since March 2002. In consequence, Mrs Skyllas considered that her residence was very crowded. She expressed a desire of upgrading to a larger house, in which better to accommodate herself and other members of her family. She expressed a desire to remain in residence in Melbourne.

38 On 4 February 2004 State Trustees Limited (to which I shall refer as “State Trustees”) was by order of the Victorian Civil and Administrative Tribunal (pursuant to the Guardianship and Administration Act 1986 (Victoria)) appointed to manage the legal and financial affairs of Mrs Skyllas. It would appear that a guardianship order made in respect to Mrs Skyllas in December 2003 was, at the instance of John Skyllas, revoked in January 2006. The Protective Commissioner for the State of New South Wales has been appointed tutor for Mrs Skyllas in the present proceedings.

39 The financial and personal situation of Mrs Skyllas has altered since the commencement of her proceedings, as a result of her deteriorating health and the onset of advanced dementia and moderately advanced Alzheimer’s disease.

40 There was placed in evidence a neuropsychology report by Philip Dingjan, 22 January 2004, and a report by Dr. Michael Hum, Assistant Geriatrician, St. George’s Health Service, Kew, Victoria, addressed to the Victorian Civil and Administrative Tribunal, 1 February 2004.

41 On 17 December 2004 Mrs Skyllas was admitted to the Bethany Senior Citizens Nursing Home in Camberwell, Victoria, which is owned and managed by the Salvation Army. Evidence was given concerning the nature of that facility, and the accommodation and circumstances of Mrs Skyllas therein, together with costing estimates prepared on her behalf. The age pension which Mrs Skyllas presently receives from Centrelink is in an amount of $482 a fortnight. State Trustees holds an amount of about $11,900 invested on behalf of Mrs. Skyllas. (The evidence did not disclose what had happened to the difference between that sum and the savings of $38,000 referred to in the original affidavit of Mrs. Skyllas or the savings of about $17,500 referred to in the affidavit of Angela Rose Burton, an officer of State Trustees, sworn 14 September 2005, although it is a probable inference that such differences have been expended on legal and administrative costs.)

42 At the present time John Skyllas is still in residence in the premises at 20 Amsterdam Street, Richmond, owned by his mother. State Trustees is in the process of attempting to evict him from those premises and to obtain possession thereof. John Skyllas is defending those proceedings and is resisting eviction.

43 It was estimated on behalf of Mrs Skyllas that the amount which she presently owes to her lawyers in respect to the costs of the present proceedings exceeds the cash reserves invested on her behalf by State Trustees.

44 I have already recorded that summons 5689 of 2004, by which John Skyllas instituted his claim against the estate of the Deceased, was filed on 20 October 2004. That was after the prescribed period of 18 months from the death of the Deceased had elapsed. Accordingly, by that summons John sought an order, pursuant to section 16(2) of the Family Provision Act, extending the time for the making of the application up to and including the date of the filing of the summons.

45 In support of his claim for provision John (to whom I shall for convenience, and without intending any disrespect, so refer) has filed six separate affidavits, in total consisting of 194 closely typed paragraphs, extending over 53 pages, together with 40 pages of annexures. Much of that material addresses matters which are either totally irrelevant to his claim or only of the most peripheral or tangential relevance. Very little of that extremely extensive affidavit material addresses the most important matters which should be presented to the Court by an applicant for provision, being essentially the financial and material circumstances of the applicant and the relevant needs of the applicant. John’s oral evidence (especially his evidence in the nature of re-examination) could be described in terms similar to those which I have used regarding his affidavit evidence. His oral evidence was prolix and discursive, as were his oral submissions.

46 It is very difficult to elicit from the enormous quantity of material presented by John the basic facts concerning his present financial and material circumstances. However the following information appears to emerge from that material.

47 John, who was born on 28 November 1959 in Melbourne and who is now aged 46 is presently unemployed. He is in receipt of some form of social security benefit. Although John has never married, he has a son Jason, who was born on 25 May 1989 and is presently aged 17. John and Jason reside in the house property at 20 Amsterdam Street, Richmond.

48 John left school at the end of fourth form (apparently in 1973, when he would have been aged about 14), and commenced work as an apprentice sewing machine mechanic. That employment lasted only about a year, and thereafter John’s employment appears to have been factory work. Apparently he last worked in 2003, in what he described as “unpaid voluntary work”.

49 In his affidavit of 15 October 2004 (being the primary affidavit filed in support of his summons) John set forth his fortnightly income as totalling $705.46 (consisting of a parenting payment of $439.30, a GST component of $16.76, and a PPS pharmaceutical allowance of $5.80, a Family Tax Benefit – Part A of $165.48, and a Family Tax Benefit – Part B of $78.12).

50 In his affidavit of 6 September 2005 John provided updating information concerning his financial circumstances. In consequence of a cash advance of $500 made to him on 30 August 2005 by Centrelink, he said that his NewStart allowance has been reduced by $38.50 a fortnight, and that his present income is $393.50 a fortnight until the repayment of the foregoing $500 has been effected. John in that affidavit referred to his expenses as including “food, clothing, petrol, car expenses, legal costs, travel to Sydney for Court cases and attending to my son Jason’s needs for school, etc.”. John said that he had no cash or any money in the bank (apart from a nominal balance of less than $5 at any given time). He has hardly any clothes, and no tools. He asserted that all manuscripts and photographs for all books which he had written, and his entire reference library of some 10,000 volumes, including many rare titles, were now missing, as were all his camera equipment and computer items.

51 The evidence did not address such significant matters as the circumstances in which it came about that John gave up his employment, or in which he became, apparently, a full-time carer for his son and a recipient of social security payments in consequence of being such a full-time carer. No evidence was offered of any attempts by John to obtain employment or to re-enter the workforce or concerning any reason why he may be unable to work.

52 John said that he has sole custody of Jason and is responsible for all his needs. However, he also referred to Jason spending time with Jason’s mother (otherwise not identified). Although I infer from John’s evidence that Jason is still at school, no information was offered concerning the details of his schooling, the costs and expenses thereof, or any plans or hopes which John, or Jason, might have for Jason’s future.

53 A great deal of John’s extremely prolix affidavit evidence consisted of what might be described as historical matters, such as his relationship with the Deceased, his relationship with his mother, and his relationship with his two brothers. It dealt in considerable length and detail with allegations that his brother Constantine had stolen various possessions belonging to John, and with complaints concerning alleged assaults and torture at the hands of police and prison guards in Victoria in June 2002, and consequent harassment of him by the police.

54 It emerged from his affidavit evidence that John at the time of the institution of his proceedings owned three motor vehicles, being a 1983 Mercedes Benz sedan (to which he ascribed an estimated value of $4,000 - $5,000), a 1985 Mercedes Benz sedan (to which he ascribed an estimated value of $8,000), and a 1988 Holden Camira sedan (to which he ascribed an estimated value of $1,000).

55 In his affidavit of 25 October 2004 John stated that his 1983 Mercedes Benz sedan had been destroyed in a motor accident on 21 October 2004 in Cambellfield, Victoria. According to John, that vehicle, which was not insured, was not repairable.

56 John said that his liabilities consist mainly of legal bills, especially in respect to defending criminal charges and in respect to litigation between himself and his brother Constantine. He estimated that those liabilities would total between $30,000 and $50,000.

57 Since he has represented himself in the present proceedings, he will have no legal bill for his own costs of those proceedings.

58 John has little in the way of clothing or other material goods. He stated that his affidavits and Court papers were produced on a computer which is located at the residence of a friend.

59 It was John’s submission that the amount to which he was entitled under the terms of the will of the Deceased is not adequate for his proper maintenance, education and advancement in life, especially since he is a sole parent.

60 As I have already recorded, John and Jason are currently residing the Richmond property, albeit against the wishes of the administrator of the affairs of Anastasia, who is the owner of the property. Despite his relevant evidence in this regard being almost lost in the enormous quantity of evidence, comments and submissions presented by John regarding other matters, it is quite apparent, however, that John and Jason maintain a modest and frugal lifestyle and that the totality of John’s income is expended in maintaining himself and his 17 year old son.

61 Evidence was given concerning the present financial and material circumstances of Constantine Skyllas (to whom I shall for convenience, and without intending any disrespect, refer as “Constantine” or “Con”), one of the beneficiaries named in the will of the Deceased. His assets consist of a house property situate at and known as 6 Peak Street, Malvern East, Victoria (to which a value of $400,000 was ascribed), and a 1989 Pintara motor vehicle (to which a value of $1,000 was ascribed). His liabilities consist of a mortgage on the Peak Street property in an amount of $52,000. Constantine‘s income as a customer service officer is in an amount of $38,000 gross a year; he receives a net salary of $1,150 a fortnight. In the last financial year his wife earned $15,000 through casual employment. The fortnightly outgoings of Constantine total $910. He spends the total amount of his net earnings in maintaining his family. He and his wife have two daughters, aged 14 and 13 years respectively. He is in good health. In his affidavit of 26 September 2005 Constantine set forth what he intended to do with moneys which he might receive from the estate of the Deceased.

62 The substantive hearing of the three proceedings occupied three days, at the conclusion of which I reserved my decision on Wednesday, 28 September 2005. Before my reserved judgment herein had been delivered Michael Skyllas died on 26 January 2006. That fact was communicated to the Court by Counsel who had appeared for Michael Skyllas at the hearing.

63 In consequence of the death of Michael Skyllas proceedings 6434 of 2004, brought on his behalf by his tutor, the Protective Commissioner of New South Wales, abate, and the management order which had been made in respect to his estate pursuant to section 127 of the Guardianship Act ceased to have effect.

64 Subsequently the three proceedings were listed before me on 9 March 2006 for directions. On that occasion I made the following directions:

1. Direct that Anastasia Skyllas on or before 30 March 2006 file and serve an affidavit setting forth the benefits which she will receive from the estate of the late Michael Skyllas and otherwise how the death of Michael Skyllas will impact upon her claim, and that any other party may respond to that affidavit within 14 days thereafter.

2. Direct that any party may file and serve further written
submissions in the light of the further affidavit evidence on or before 27 April 2006.

65 An affidavit in compliance with the first of the foregoing directions, being the affidavit of Angela Rose Burton sworn 28 March 2006, was filed on 30 March 2006. That deponent is the Manager, Personal Financial Solutions, employed by State Trustees.

66 Michael Skyllas left a will dated 3 February 1983. By that will he appointed his brother Con Skyllas as executor, and gave the entirety of his estate (after payment of debts, funeral and testamentary expenses, and any duties payable) to his mother Anastasia Skyllas. An application for probate of the foregoing will has been made in the Supreme Court of Victoria, but, as I understand it, probate has not yet been granted. The inventory of assets and liabilities filed in support of the probate application discloses assets totalling $49,917, and no liabilities.

67 It was estimated by Ms Burton that, after payment of the costs of probate and administration (in an estimated amount of $3,000) and the costs of the funeral ($5,180) and of a monument (in an estimated amount of $5,000), as well as the payment of the costs of Michael in proceedings 6434 of 2004 (in an estimated amount of $35,000), there would be available for distribution an amount of only $1,790.

68 In addition, the estate of Michael Skyllas is entitled to a one-third share in the estate of the Deceased (subject, of course, to the claims made by his mother and his brother John in the current proceedings). That one-third share (or any lesser amount to which he, or now his estate, might ultimately be entitled) in the estate of the Deceased will, under the terms of Michael’s will, pass to his mother. It is also possible, as I have already observed, that there may be a partial intestacy in respect to the balance of the cash investments and deposits totalling about $40,000, after payment of what was referred to in the will as “my expenses”, although most, if not all, of that balance will be exhausted in meeting the costs of the present proceedings (or, at least, the costs of the Defendant of the present proceedings).

69 According to the affidavit of Ms Burton, the death of Michael has resulted in Mrs. Skyllas becoming entitled to “approximately $800 in cash plus his interest in the estate of his father which is the subject of the said two claims under the NSW Family Provision Act”. It was subsequently conceded by the Defendant that the reference to “approximately $800” was due to inadvertence and that Mrs. Skyllas is entitled to the entirety of that net amount of $1,790.95.

70 It is relevant to the claim of Mrs. Skyllas, and also to the claim of John, that on 24 October 2005 John (acting in person and without legal representation) issued a writ out of the Supreme Court of Victoria at Melbourne in proceedings No. 8934 of 2005, in the Commercial and Equity Division of that Court, naming as defendant State Trustees Limited (as administrator of the estate of Anastasia Skyllas). The statement of claim which is appended to that writ is extremely prolix (extending over 35 paragraphs, occupying some 11 densely typed pages) and consists very largely of evidentiary matters, comments and submissions. It includes complaints by John regarding the manner in which State Trustees has carried out its duties and responsibilities as administrator of the legal and financial affairs of his mother, in particular regarding the house property at Richmond (against the title to which John has lodged a caveat), and the assertion of an oral agreement between John and his mother which is alleged to have given rise to a resulting trust over the Richmond property in favour of John. By that statement of claim John claims an order restraining State Trustees from dealing with the Richmond property, and a declaration that that property cannot be considered an asset for the purposes of various statutory provisions and cannot be used for the purposes of providing funds for residential aged care purposes (presumably, for Anastasia).

71 Apparently a defence and a counter-claim were filed by the Defendant to that action, although those pleadings were not in evidence before me. Further pleadings by John, being a reply to defence, dated 5 December 2005, and a defence to counter-claim, also dated 5 December 2005, were also annexed to the affidavit of Ms Burton. That deponent states that fees totalling $9,480 are owing to a firm of solicitors, being for their costs in acting for Mrs. Skyllas and defending the claim of John against State Trustees as administrator of the estate of Mrs. Skyllas.

72 The proceedings instituted by John in the Supreme Court of Victoria were the subject of an order by Master Evans on 31 March 2006 that his statement of claim be struck out and that no further statement of claim be filed without the leave of the Court, and an order that he pay the costs of State Trustees Limited of that application. John Skyllas appealed from that order of Master Evans, the appeal being heard by Her Honour Justice King, on 20 April 2006. Her Honour confirmed the orders of Master Evans, and reserved the costs of the appeal. Her Honour also ordered that any application for leave to file a fresh statement of claim must be made no later than 18 May 2006, and if not so made that State Trustees Limited would be entitled to make an application to have the proceedings struck out for want of prosecution. An amended statement of claim was filed by John in the Supreme Court of Victoria on 8 May 2006. It is unclear whether any leave to do so was sought, or obtained, by John. By that pleading John asserts that Mrs. Skyllas holds the Richmond property for him on trust (apparently as an express trust, possibly as a resulting or a constructive trust).

73 I have already referred to the directions which I gave on 9 March 2006 concerning the filing of additional affidavit material and further written submissions.

74 Even before the death of Michael (and after I had reserved my decision on 28 September 2005) John, although without having any leave in such regard, forwarded to my chambers a very considerable quantity of additional written material, being a letter dated 9 October 2005 (together with enclosures); a further letter dated 9 October 2005 (together with enclosures); yet a further (being a third) letter dated 9 October 2005 (together with enclosures); letters dated 12 October 2005; 15 October 2005 (together with enclosures); 31 October 2005 (together with enclosures); 7 January 2006 (together with enclosure); 25 January 2006; 26 January 2006; 29 January 2006; 1 February 2006 (together with enclosure); 20 February 2006.

75 It will be appreciated that none of the foregoing communications (or the enclosures contained therewith) can be treated as evidence in the hearing before me, although they may be treated as being submissions on the part of John Skyllas. Much of that material replicates the material presented and the topics agitated in the six affidavits of that Plaintiff to which I have already referred.

76 Subsequent to the directions made by me on 9 March 2006 John forwarded to my chambers letters bearing the following dates:

4 April 2006 (enclosing written submissions and oral submissions (the latter by way of a compact disc)); 5 April 2006 (enclosing an affidavit of John Skyllas sworn 5 April 2006); 5 May 2006; and 6 June 2006 (together with enclosures). Again, I would observe that those letters cannot be treated as evidence in the hearing before me, although they may be treated as being submissions (despite the fact that they do not strictly comply with terms of the second direction made by me on 9 March 2006). I have not heard any submissions from Counsel for the other parties as to whether oral submissions may be presented by a party by way of a compact disc.

77 I have also, subsequent to the foregoing directions, received written submissions, dated, respectively, 1 May 2006 and 26 May 2006, from Counsel for Anastasia Skyllas.

78 The chief, indeed the only, significant asset of Mrs. Skyllas is the house property at Richmond. That property has a present estimated value of between $370,000 and $400,000. However, that property is the subject of a claim by John, who asserts an interest in fee simple pursuant to a resulting trust. John and his son Jason continue to reside in that house property.

79 The practical position regarding the Richmond property is that, unless and until the foregoing proceedings in the Supreme Court of Victoria are resolved, any attempt by Mrs. Skyllas to deal with the Richmond property (for example, by way of sale) will be frustrated. If John is ultimately successful in his claim to that property, then Mrs. Skyllas has little in the way of assets, apart from her entitlement to the interest of her son Michael in the estate of the Deceased (and, possibly, an entitlement upon intestacy to the balance of the cash investments and deposits, after certain payments thereout).

80 If the estate of the Deceased remains undisturbed by an order for provision in any of the three current proceedings, then Mrs. Skyllas will be entitled to one-third of that estate. The estate property at 796 Victoria Road, Ryde has now been sold for $455,000, settlement taking place in mid-May 2006. In consequence, each of the three named beneficiaries in the will of the Deceased will be entitled to a one-third interest in the net proceeds of sale. Upon the assumption that estate agent’s commission and legal costs be deducted from the sale price of $455,000, then the net amount available for distribution would be in the order of about $420,000 (perhaps somewhat more), and thus that Mrs. Skyllas (as sole beneficiary under the will of Michael) will be entitled to one-third of that figure, being about $140,000. It will be appreciated that John, under the terms of the will of the Deceased, will be entitled to an equivalent sum.

81 I have, however, already observed that a calculation along the foregoing lines does not appear to take into account either the claim of the firm of solicitors acting in the probate proceedings (which claim appears to have been admitted by the Defendant as a liability in the estate of the Deceased), in an amount of about $54,000, or the costs of the Defendant in the three present proceedings, in a total amount of $25,000. If those two items be deducted from the net proceeds of sale (in the order of $420,000), there will be available for distribution (subject, of course, to any costs orders which might be made in favour of one or more of the Plaintiffs) an amount of about $341,000. In that event it may be prudent, therefore, for the Court to adopt that figure as the amount available for distribution among the three named beneficiaries. Upon that basis, each of those beneficiaries would be entitled to a little over $113,000. That is, the amount which would pass to Mrs. Skyllas consequent upon the terms of the will of Michael would be a little over $113,000, and John would be entitled to an equivalent sum.

82 Regarding the foregoing calculations, however, it will be appreciated that if a costs order is made in favour of the Defendant against one or more of the Plaintiffs (and if such costs be recovered), the amount available for distribution in the estate of the Deceased will be thereby increased, and the amounts to which each of the Plaintiffs, Mrs. Skyllas and John, will be entitled will be thereby increased also. For example, if the Defendant were to obtain a costs order against one or more of the Plaintiffs, and were to recover those costs, in the estimated total amount of $25,000, the entitlement of each of Mrs. Skyllas and John would be increased by a little over $8,000, with the consequence that each would receive at least $121,000.

83 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the two surviving Plaintiffs.

84 Anastasia Skyllas, as the widow of the Deceased, is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring her present claim.

85 John, as a son of the Deceased, is also an eligible person in relation to the Deceased, coming within paragraph (b) of the foregoing definition. As such he also has the standing to bring his present claim.

86 In addition to the foregoing submissions made by John, I have also had the benefit of receiving written outlines of submissions and chronologies from Counsel for Mrs. Skyllas, Counsel for Michael and Counsel for the Defendant. Those documents will be retained in the Court file (as will also be the entirety of the material received from John).

87 I have already recorded that a great deal of the evidence, especially that of John, related to various incidents within the family, and the relationships between the Deceased and each of his children and between the Deceased and Mrs. Skyllas and between Mrs. Skyllas and each of her children.

88 It cannot be emphasised too strongly that an applicant for an order for provision must establish his claim upon its own merits. That claim cannot be enhanced by establishing, if such be the case, that the chosen objects of the testamentary beneficence of the Deceased, if they themselves had been omitted from such testamentary provision, would not have been successful in an application for provision. (Much of John’s evidence concerning his brother Constantine falls into such a category.) In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

89 Further, consonant with the foregoing admonition of Windeyer J, it should be recognised that an order for provision is not made as a reward for past services on the part of an applicant. Neither is an order for provision withheld as punishment for perceived bad conduct on the part of an applicant.

90 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] 181 CLR 201 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 79 ALJR 731) the Court must determine whether in consequence of the terms of the will of the Deceased each or both of Mrs. Skyllas and John has been left without adequate provision for her or his proper maintenance.

91 In the written submissions made by Counsel on her behalf on 22 September 2005, the needs of Mrs. Skyllas in respect to her residence in a nursing home have been quantified in an amount $85,000. (That quantification is largely based upon the evidence of Melanie Atkins, a disability educator.) It will be apparent that those needs will be more than satisfied by Mrs. Skyllas receiving the interest of her deceased son Michael in the estate of the Deceased (be that amount quantified as about $140,000 or as about $113,000 or as some amount between those two figures). If the proceedings brought by John in the Supreme Court of Victoria in respect to the Richmond property are ultimately dismissed, then Anastasia will also have the benefit of that property, having a present estimated value of between $370,000 and $400,000. In all those circumstances, I am not satisfied that Anastasia has been left without adequate provision for her proper maintenance. It follows that the Court should not make any further provision for Anastasia out of the estate of the Deceased, and that, in consequence, her claim should be dismissed.

92 As to the claim of John, it will be appreciated that that claim has been very largely obfuscated by the extraordinarily great quantity of extremely verbose and prolix (and largely irrelevant) submissions and commentary communicated by him to the Court, by way of affidavits, oral evidence, submissions (both written and oral), and letters.

93 The present claim of John appears to be essentially for accommodation for himself and his son Jason. That claim is being pursued by way of proceedings in the Supreme Court of Victoria (in which thus far he has had little success).

94 If John is ultimately successful in his claim in the proceedings in Victoria, then he will have a house property worth upwards of $400,000. That is the property in which he and Jason have been residing for some years. There is no suggestion that it is not suitable or appropriate for John’s needs and requirements. John will then have no need to look to the estate of the Deceased for any accommodation.

95 It was expressly stated by John during the course of the hearing that to the time when his mother brought her claim in June 2002 John was content with the one third interest given to him by the will of the Deceased. However, his statement that he “only wanted to see that she was treated fairly by the Courts “is hardly consistent with the stand adopted by him in his proceedings in the Supreme Court of Victoria, by which he claims his mother’s interest in the Richmond property.

96 But, in any event, John is entitled to receive one-third of the estate of the Deceased. In consequence of the sale of the property in Victoria Road, Ryde, he will receive no less than about $113,000. I am not satisfied that John has been left without adequate provision for his maintenance.

97 The foregoing sum is more than sufficient to enhance the somewhat frugal lifestyle pursued by John and his son, and to provide a fund to meet unexpected contingencies. In the absence of any explanation of why John is not in employment, I am not persuaded that he has established any entitlement to look to the estate of the Deceased for an unencumbered residence. Even if he were able to offer an adequate explanation as to why he is not in employment, it is unlikely that he could establish an entitlement to receive a residence out of the estate. If he were working, the benefit of about $113,000 from the estate would go a considerable distance towards the acquisition of accommodation for him and Jason.

98 It follows that I would not be disposed to award to him any additional benefit out of the estate of the Deceased. (It is unnecessary, therefore, for me to proceed to a consideration of John’s application for an extension of the prescribed period in which to bring his claim.) His claim will therefore be dismissed.

99 I make the following orders:

3034 of 2002 Anastasia Skyllas v Public Trustee

(1). I order that the summons be dismissed.

(2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.

5689 of 2004 John Skyllas v Public Trustee

(1). I order that the summons be dismissed.

(2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.

6434 of 2004 Michael Skyllas by his tutor the Protective Commissioner of New South Wales v Public Trustee

(1). I order that the summons be dismissed.

(2). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.

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