Spence v Antunovich

[2004] NSWSC 1128

CITATION:	SPENCE v. ANTUNOVICH [2004] NSWSC 1128
HEARING DATE(S):	Thursday 18 November 2004
JUDGMENT DATE:	26 November 2004
JURISDICTION:	Equity
JUDGMENT OF:	Acting Master Berecry at 1
DECISION:	1. In addition to the provision made for the first plaintiff in the will of the late Doreen May Antunovich, the first plaintiff receive payment of a lump sum of $120,000; 2. The defendant pay the first plaintiff's costs; 3. The second plaintiff receive by way of lump sum payment out of the estate of the late Doreen May Antunovich the sum of $20,000; 4. The defendant pay the second plaintiff's costs; 5. The defendant's costs be paid out of the estate on the indemnity basis.
CATCHWORDS:	Family provision claim - claim by daughter and grandson - close relationship between deceased and plaintiffs - special care provided by grandson - adequate provision.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Fulop, deceased (1987) 80 NSWLR 679
PARTIES :	SPENCE, Tanya May & ANOR v. ANTUNOVICH, Steven Mark
FILE NUMBER(S):	SC No. 1681 of 2003
COUNSEL:	Plaintiff: B. Townsend Defendant: R.D. Wilson/M. Tibbey
SOLICITORS:	Plaintiff: Jackson Smith Defendant: Turnbull Hill Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY 26 NOVEMBER 2004

No. 1681 of 2003

TANYA MAY SPENCE & ANOR v. STEVEN MARK ANTUNOVICH

JUDGMENT

1 ACTING MASTER: On 3 March 2003, the plaintiffs filed a summons seeking orders pursuant to s.7 of the Family Provision Act 1982, for provision out of the estate of the late Doreen May Antunovich. The deceased died on 18 September 2001. The proceedings therefore are brought within time.

2 The first plaintiff and the defendant are the children of the deceased. The second plaintiff is the son of the first plaintiff and the grandson of the deceased.

The plaintiff – Tanya May Spence

3 The plaintiff is aged 45. She has two children, namely the second plaintiff and Nicole. She and her brother resided with their parents at the property which was the subject of the grant of probate. Their father died in 1966.

4 The plaintiff has been married on two occasions and has lived with partners at the family home with the deceased from time to time. She moved permanently back to the premises in 1981 and lived there continually until 1998. During that period she lived there with her two children and her second husband.

5 The plaintiff left school at 14. The reason given, which was not contradicted by the defendant, was that her mother’s health had deteriorated and she was needed to act as her carer. Therefore, she left school to look after her mother. Consequently, she has not attained any qualifications and has not completed her education. Her ability to earn a reasonable income is limited by her lack of qualifications. Currently she is working at the Elanora Country Club and earns $545 per week. She has been in continuous employment for most of her adult life.

6 The evidence of the plaintiffs is that Tanya had a warm and close relationship with her mother. Evidence of other deponents support the plaintiffs’ evidence on this point.

7 As the deceased’s health deteriorated, the plaintiff and her two children, in particular the second plaintiff, were required to spend increasing time caring for the deceased. The plaintiff’s second husband, who resided at the premises for approximately eight years, also assisted. He carried out work around the property as and when it was required. The evidence on behalf of the plaintiff is that she had a loving and caring relationship with her mother and the two of them were close.

8 The deceased’s health deteriorated during the 1990s. She had some fingers amputated and had one leg amputated in 1996. As a result of her deteriorating health, she moved to a nursing home in 1996. The plaintiff’s evidence is that she continued to visit her mother on a regular basis and maintained that position until the deceased’s death. However, it appears that the deceased became confused in the latter part of her life when she formed the impression that the plaintiff had moved to Queensland and was trying to dispose of the deceased’s property. It would seem that nothing the plaintiff said could persuade the deceased that that was not the case.

9 In 1998 after a heated argument with her brother, the plaintiff and her two children left the premises. She moved in with her partner. They purchased a property at Newport and continued to reside in that property until it was sold in 2003. They no longer remain together. However, from the proceeds of sale of that property, the first plaintiff received an amount of approximately $112,000.

10 Under the terms of the deceased’s will, the first plaintiff was entitled to provision of 25% of the value of the Narrabeen property. After grant of probate, the defendant paid the plaintiff the sum of $190,000 representing her entitlement under the will. Since the sale of the Newport property, the plaintiff has lived in rented accommodation in Narrabeen.

11 The plaintiff seeks additional provision from the deceased’s estate to enable her to purchase a unit or villa in Narrabeen or Mona Vale. The plaintiff does not put her claim on the basis that the estate should provide the balance of the funds which she would require to purchase such a property. She is prepared, together with the second plaintiff, to borrow funds to enable a property to be purchased in the Narrabeen/Mona Vale area.

12 The plaintiff, as a daughter of the deceased, is an eligible person pursuant to s.6(1)(b). She is a person for whom community expectations are that a wise and just parent would make adequate provision. The plaintiff bases her claim on the loving and caring relationship that she had with her mother, giving up her education at 14 to care for her mother, providing assistance, both financial and non-financial, to her mother in respect of the Narrabeen property and, in her opinion, the failure by the deceased to make adequate provision for her on the basis of the nature and quality of the relationship they shared and the need for the plaintiff to obtain adequate provision out of the estate to assist her with the purchase of accommodation.

13 The plaintiff’s financial position is as follows. Her current net income is $545 per week. Her expenses are $664 per week. The second plaintiff has always resided with her but has a number of health problems which have prevented him from either obtaining qualifications or working on a full time basis. This has caused a drain on her financial resources. At the present time, the second plaintiff, because of his low income, is unable to contribute to the rent that the plaintiff has to pay. She therefore has a shortfall of some $120 per week. Her asset position is that currently she has approximately $242,000. The bulk of that figure is made up from the payment she has received from the executor and the proceeds of sale that she received from the Newport property. She has, however, had to use some of those funds for her day to day living and to meet other expenses as and when they arise. Other than the weekly shortfall, she has no other liabilities.

14 Although the defendant challenged some of the plaintiff’s evidence in his affidavit in response, she was not cross-examined on the quality and the nature of her relationship with her mother. I accept the plaintiff as a truthful witness and I accept that she provided significant domestic and caring contributions to her mother. The evidence demonstrates that of the two siblings, the plaintiff provided by far the more significant contribution towards the deceased. In my view, the factors considered under s.9(3) are amply demonstrated so far as the first plaintiff is concerned.

15 Whilst it can be said that significant contributions had been made by the deceased to the plaintiff during her lifetime, namely rent free accommodation and when the grandchildren were young, looking after them whilst the plaintiff was at work, those matters have to be balanced against the quality of the relationship and the nature of assistance that the plaintiff rendered to the deceased. That assistance was of both a financial and a non-financial nature. It is clear that by staying at Narrabeen and looking after the deceased until 1996, the plaintiff was not in a position to purchase her own home for the family.

16 By the very nature of the provision made for the plaintiff, it can be seen that such a provision would not enable the plaintiff to acquire a property in Sydney, let alone, in the Narrabeen/Mona Vale area. To that extent, in my opinion, the provision made for the plaintiff is inadequate.

17 The next matter to consider is what, if any, additional provision should be made for the plaintiff. She seeks provision out of the estate to enable her to purchase a place in the Narrabeen/Mona Vale area. Her evidence is that she and the second plaintiff can, on their income, secure a loan for $176,000. Such a loan, together with the balance of her legacy and the proceeds of the Newport property would, on current market listings, result in a shortfall thus requiring an additional provision to be made out of the estate.

18 Any additional provision made for the plaintiff must be weighed against the competing needs of other parties. In this case, the other parties consist of the second plaintiff and the defendant.

The second plaintiff – Justin Keith Dubery

19 The second plaintiff is a grandchild of the deceased. He is 25 years of age and had lived at the Narrabeen property from 1981 until 1998. The major part of his life has been spent at the residence of his grandmother.

20 The second plaintiff has had ongoing medical problems which have prevented him from entering the workforce on a full time basis and have prevented him from completing courses that he has undertaken. He is currently employed and is earning $240 a week. He has liabilities of $15,000 and assets of $14,000. He is not placed in a good position. However, when one considers his age and the fact that he has not been in permanent employment since leaving school, there is nothing unusual about that position.

21 The evidence is that the second plaintiff was close to his grandmother. He played a caring role from a young age. As the health of the deceased deteriorated and she developed ulcers on her legs, she needed to have the ulcers cleaned and dressed daily. The evidence is that other members of the family found it difficult to perform that task. However, the second plaintiff was shown by a doctor how to drain blood from a heel and how to clean the ulcers. The evidence is that, by and large, he performed those tasks on a daily basis and, on occasions, they were required to be done more times than once per day. Although the defendant denies that the second plaintiff performed those tasks as regularly as he asserts, independent evidence supports the second plaintiff’s evidence. I found that, for the short time that the second plaintiff was in the witness box, he was a truthful and reliable witness. Conversely, I did not find the defendant to be a particularly persuasive or truthful witness. Where their evidence differs, I prefer that of the second plaintiff. However, there is the supporting evidence and, to my mind, it makes it safe to accept the evidence of the second plaintiff.

22 The eligibility of the second plaintiff was not contested. However, what was in issue was, firstly, his dependence on his grandmother and, secondly, the nature and the extent of any assistance that he provided for her. As a grandchild of the deceased, the second plaintiff must satisfy the matters referred to by McLelland, J. in Re Fulop, deceased (1987) 80 NSWLR 679.

23 In addition to the factors warranting s.9(3), the second plaintiff must be able to demonstrate that there were other factors which would make him a natural object of a testamentary recognition. In my view, the second plaintiff establishes that the role of the carer that he played clearly demonstrates the closeness of the relationship that he had with his grandmother. What he was required to do was something that he did voluntarily and normally something that one would not expect a young grandchild to do. He also resided at her property for most of the first 21 years of his life. There is a distinction to be drawn between a child who lives in the grandparent’s home as a result of that child’s parents moving in with the grandparent but for only a short period of time and the present case where the grandparent’s home was where the second plaintiff lived for all of his childhood years and continued to reside on the property until he was 21. After leaving the property, the closeness of the relationship with his grandmother is clearly evidenced by the uncontradicted evidence in his affidavits.

24 In all the circumstances, the second plaintiff is a person that the community would regard as a person who would have been entitled to testamentary recognition. There has been no provision made for him. Clearly, the testatrix has not paid sufficient attention to the quality of the relationship that she had with the second plaintiff. It is interesting to note that she knew the defendant’s wife only a relatively short period of time and never lived with her and yet she provides in her will that the defendant’s wife, should the defendant pre-decease his mother, receive her estate, less the 25% to be paid to the first plaintiff. That provision does not seem to me to be the type of provision that one would expect a wise and just testatrix to make. She had known the daughter in law for a short period of time and made provision for her but made no provision for the grandchild who lived with her for 21 years and who had a loving and caring relationship with her. In my view, therefore, provision ought to be made for the second plaintiff.

25 The second plaintiff puts his needs on two bases. Firstly, that some provision ought be made out of the estate to enable him to supplement his income and to provide him with some support for the foreseeable future and to enable him to discharge his debts. Secondly, in cross-examination, he stated that one of the matters that he saw as a need was to be provided with a fund from the deceased’s estate so that he could use that together with any monies his mother has to enable them to acquire their own accommodation.

26 It seems to me that the second basis for needs is one that cannot be sustainable. There is no basis for providing the second plaintiff with a fund of money which would assist him in acquiring accommodation for his mother. Although the evidence was that any property that they purchased they would be joint owners, it seems to me that such a provision made by the court is not consistent with the authorities. I am not aware of any authority which provides a grandchild with the wherewithal to achieve a significant interest in a property. However, the first basis upon which he sets out his needs is a proper basis to consider. What provision should be made must be determined, however, by weighing up the competing interests with the first plaintiff and the defendant

The defendant

27 The defendant is a son of the deceased and the major beneficiary of her estate. He is 46 years of age and lives with his wife in Tasmania. He is a butcher by trade and has worked in that trade for most of his adult life. Currently, his weekly net wage is $345. His wife’s wage is $375 per week and combined they earn $725 per week net. Their weekly expenses amount to $671 leaving an excess of $59 per week. Their liabilities amount to $73,000 excluding a debt owed by the defendant’s step daughter to him and their assets are $293,000. From the net proceeds of the sale of the estate property, an amount of $266,000 was placed on a controlled money account pending the outcome of these proceedings. The plaintiff received $270,000 and from that the Tasmanian property was purchased. The most significant debt that he has is in relation to a mortgage which was taken out to roll up debts that he had incurred before moving to Tasmania. The defendant pays child maintenance in respect of a daughter he had from a previous marriage.

28 Until 1993, after he separated from his first wife, the defendant did not, during his adulthood, live with the deceased. However, in 1993, he moved back to the property and occupied the downstairs section which was converted into accommodation for him. During the subsequent years the relationship with other members of his family deteriorated. The evidence, not only of the plaintiff but also of other deponents, was that, as time went on, he was more often than not drunk, played loud music to the extent that it not only inconvenienced the rest of the family, but also annoyed neighbours, did very little around the house and became abusive to the plaintiff and her two children.

29 The defendant, nevertheless, appears to have had a good relationship with his mother. When she was placed in a nursing home, he visited her on a regular basis and, once he re-married, his wife accompanied him. His evidence is that he also played a caring role during the period 1993 to 1996. However, his evidence is not corroborated in respect of that and I do not accept his evidence to the extent that he asserts he cared for his mother. There is not only evidence of the plaintiffs but also of other deponents to the effect that the defendant provided minimal support for his mother during the years 1993 to 1996.

30 The defendant’s evidence was unsatisfactory. In cross-examination, he was asked about the contributions that he made concerning renovations and repairs to the property. He was unable to be specific in the contributions that he made other than to say “bits and pieces from time to time”. His evidence was wholly unsatisfactory in that respect and I preferred the evidence of the plaintiffs to his. He also made serious allegations against the first plaintiff in respect of the deceased’s monies. Those allegations were denied by the plaintiff. She was not cross-examined on them and he did not put any material, other than a bold assertion, which would convince the court as to the truth and accuracy of those allegations. In fact, his sister not only denied them but put on evidence to show where the monies went. The allegation of the theft of $10,000 was answered by the first plaintiff putting on evidence which demonstrated that those monies were paid for the renovations of the bathroom. The renovation took place while the deceased still occupied the property.

31 The current position of the defendant is that he is in permanent employment. His income exceeds his expenses by $59 per week. He has an unencumbered house and he has liabilities no greater than $73,000 and he is 46 years of age. He is in a position where he can manage his financial affairs. However, his mother had made provision for him and that needs to be taken into account in determining what adjustments, if any, should be made to the benefit of the first and second plaintiffs.

Conclusion

32 Weighing up the competing interests of the three parties, additional provision should be made for the first plaintiff and some provision should be made for the second plaintiff. In my view, the defendant has demonstrated that he has a competing need and therefore should be entitled to retain a part of the balance of the provision made for him by the deceased.

33 So far as the first plaintiff is concerned, in my view, adequate provision does not mean that she should be provided with a fund of money which will enable her to buy a property in the Narrabeen/Mona Vale area. Adequate provision, in my view, is having regard to the competing interests and making an adjustment accordingly which would enable her to receive additional fund so that her resources together with a mortgage would enable her to buy an appropriate property.

34 She conceded in cross-examination that she could purchase a unit in Dee Why for $376,000. Whilst she acknowledged that units could be purchased for that price in Dee Why, she said that they are units close to Pittwater Road or are old. Nevertheless, properties would be available within her price range on the Northern Beaches.

35 In my view, the proper amount to provide the plaintiff by way of an additional payment is the sum of $120,000. Such an order would leave the plaintiff with $335,000. Her evidence is that she and her son on their current incomes have the capacity to borrow $176,000 and that would give her an amount of approximately $511,000. In my view, that amount would enable the plaintiff to purchase a suitable unit, although not a top drawer unit along the Northern Beaches. It seems to me that, having regard to her place of work, an area fairly central on the Northern Beaches, that she does not have a need to live between Narrabeen and Mona Vale. Accommodation in Dee Why, Freshwater, Manly Vale and North Manly would be as equally as convenient in terms of her work as living at Mona Vale. There was no evidence which would suggest that there are any other factors to be taken into account as to why Narrabeen to Mona Vale is appropriate.

36 In relation to the second plaintiff, in my view, provision should be made for him to give him an economic cushion so that he has some money to fall back on during his current financial position, which he can use until he gains full time employment or alternatively he can use towards discharging his debts. The second plaintiff should receive from the estate a legacy in the sum of $20,000.

37 The balance of the funds held in the controlled money account less costs of the proceedings would go to the defendant representing the balance of the estate. Such a sum would assist the defendant to pay a significant amount of the monies that are currently owed under the mortgage.

Orders

38 I make the following orders:-

1. In addition to the provision made for the first plaintiff in the will of the late Doreen May Antunovich, the first plaintiff receive payment of a lump sum of $120,000.

2. The defendant pay the first plaintiff’s costs.

3. The second plaintiff receive by way of lump sum payment out of the estate of the late Doreen May Antunovich the sum of $20,000.

4. The defendant pay the second plaintiff’s costs.

5. The defendant’s costs be paid out of the estate on the indemnity basis.

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Last Modified: 11/29/2004