Thorne v The Public Trustee
[2015] TASSC 56
•25 November 2015
[2015] TASSC 56
COURT: SUPREME COURT OF TASMANIA
CITATION: Thorne v The Public Trustee [2015] TASSC 56
PARTIES: THORNE, Kim Maree
v
THE PUBLIC TRUSTEE as Administrator of the estate of Colin Ross Thorne
THORNE, Debra Joy
ROBERTS, Karen Ann
FILE NO: 541/2014
DELIVERED ON: 25 November 2015
DELIVERED AT: Hobart
HEARING DATE/S: 9, 10, 11 and 18 November 2015
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family Provision – Requirement for adequate and proper maintenance – Whether applicant left with insufficient provision – Claims by children.
Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1423]
REPRESENTATION:
Counsel:
Applicant: S McCullough
1st Respondent: No appearance
2nd & 3rd Respondents: T Cox
Solicitors:
Applicant: Worrall Lawyers
1st Respondent: The Public Trustee
2nd & 3rd Respondents: Fairley + Associates
Judgment Number: [2015] TASSC 56
Number of paragraphs: 48
Serial No 56/2015
File No 541/2014
KIM MAREE THORNE v THE PUBLIC TRUSTEE as Administrator of the estate of Colin Ross Thorne v DEBRA JOY THORNE and KAREN ANN ROBERTS
REASONS FOR JUDGMENT HOLT AsJ
25 November 2015
An application for provision under the Testators Family Maintenance Act 1912
Colin Thorne died on 11 June 2003 aged 70. He had been divorced for many years and was survived by his three daughters, then aged 45, 43 and 41.
Mr Thorne had made a will on an unknown date sometime during 1979 in which he bequeathed his entire estate to his eldest daughter. The will had been prepared by a solicitor who was also a witness to its execution. The brother of Mr Thorne and a friend were named as trustees and executors. The will was found in the home of Mr Thorne shortly following his death and thereafter promptly taken to the solicitor who had drawn it, presumably so that the solicitor could attend to the issue of a grant of probate. Although the will had been made many years prior to his death, on several occasions during the three or four years immediately preceding his death Mr Thorne had told a friend that he intended his entire estate to go to his eldest daughter and why he had that intention. The effect of the conversations about his reasons was that Mr Thorne believed that his eldest daughter was the only daughter who cared about him.
In anticipation of the 1979 will being admitted to probate, Mr Thorne's middle and youngest daughters commenced proceedings in 2005 claiming provision under the Testator's Family Maintenance Act 1912 ("the Act"). In the meantime the eldest daughter had moved into the home formerly occupied by Mr Thorne. Since moving in the eldest daughter has paid mortgage instalments of about $46 per month. She has also paid outgoings such as insurance and attended to maintenance items. She continues to live in the home.
The will was not admitted to probate. The Wills Act 1992 provided that, unless the will expressly negated the operation of the statutory provision, or was expressed to be made in contemplation of divorce, or it otherwise appeared that the will was made in contemplation of divorce, the will was revoked by the dissolution of a marriage. The 1992 Act applied retrospectively and so had effect even where the dissolution of marriage had occurred prior to the enactment. Public Trustee v Betty West and Shirley Boyd [1997] TASSC 161. A decree nisi in respect of Mr Thorne's marriage was made on 21 November 1979 and became absolute on Saturday, 22 December 1979. An action to have the will admitted to probate was unsuccessful. It was not pleaded that the will had been made in contemplation of divorce and it was not shown that the will had been made after the dissolution of the marriage.
The fact that the will might have been revoked by the combined operation of statute and the 1979 marriage dissolution was not appreciated by the parties or their legal advisers until 2011. Eventually, in December 2013, the Public Trustee was granted letters of administration of the intestate estate. Under intestacy rules each of the three daughters would receive a one-third share of the estate.
In July 2014 the eldest daughter brought an application against the administrator for additional provision under the Act. The previous application by the other two daughters was abandoned and they became the second and third respondents to the application brought by the eldest daughter. Although the eldest daughter was out-of-time for the commencement of proceedings, a consent order was made extending time so that her application for further provision could be dealt with on its merits.
The Act enables the Court to intervene where adequate provision for the proper maintenance and support of a claimant has not been made, regardless of whether the lack of provision arises as a consequence of the terms of a will or as a result of the distribution rules which apply on an intestacy. Section 3(1) is as follows:
"If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
The eldest daughter, being a child of the deceased, is a person specified in the Act, s 3A, as being eligible to bring an application for provision or further provision under the Act.
Some matters of principle
By the terms of the Act, s 3(1), no discretion to interfere with the estate arises unless it is first established as a matter of jurisdiction that the applicant has been "left without adequate provision for (her) proper maintenance and support thereafter". The assessment is undertaken "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". Singer v Berghouse (1994) 181 CLR 201 at 210.
The jurisdictional question is answered as at the date of death. Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494.
In making the appraisal the Court is to "connect the general but value-laden language of the statute to the community standards". In Vigolo v Bostin (2005) 221 CLR 191 Gleeson CJ said at par [25]:
"In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description 'moral'."
The enquiry of the Court is undertaken from the perspective of a wise and just testator. Bosch v Perpetual Trustee Co [1938] AC 463 at 478–479. The wise and just testator is assumed to be aware of all of the relevant circumstances including reasonably foreseeable eventualities existing at the date of death, regardless of whether or not such potential eventualities were actually known to the testator. Litchfield v Smith & Anor [2010] VSC 466 at [26]. Matters occurring after the death of the testator, but before the hearing of the application, may provide evidence of what was foreseeable. Coates at 508.
Evidence of the reasons of a testator or testatrix for making a particular provision or not making provision is technically hearsay, as is evidence of the reasons, if any, of a deceased for allowing his estate to be distributed on intestacy. The reasons given, absent statutory provision to the contrary, would not afford proof of the objective facts they assert. Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138. Notwithstanding this, such evidence is admissible under the Act s 8A and under the Evidence Act 2001 (Tas), s 63.
The Act, s 3(1) refers to "adequate" provision for "proper" maintenance and support. The way in which the language of the statute operates was explained in McCosker v McCosker (1957) 97 CLR 566 by Dixon CJ and Williams J in the following terms at 571–572:
"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) (1938) AC 463; (1938) 38 SR (NSW) 176 the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In re Sinnott (1948) VLR 279 Fullagar J considered the case of an adult daughter at 281 in the following terms:
"I think that the case of an adult daughter, even in these days when it is quite normal for a single adult woman to be self-supporting, is not to be viewed in quite the same light as that of an adult son. … The case of a daughter who has stayed at home and cared for elderly parents is, of course, a clear case of a strong claim. … Apart from exceptional cases, if she is without resources, she may be said to be in a less advantageous position than a man. Unless she is equipped for a profession or a skilled occupation, late middle age and old age are perhaps more likely to find her in a situation in which a little capital or even a very small assured income would make a world of difference to her comfort and happiness."
It is to be noted that the Act is not designed to enable the Court to intervene so as to reward for services rendered or affection given towards a deceased. The purpose is to provide redress, where possible, where adequate provision has not been made for an eligible claimant's proper maintenance and support. The position is as stated in Schmidt v Watkins [2002] VSC 273 by Harper J who said at par [24]:
"To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: 'Should I reward my benefactor?' is very different from the question: 'Do I have a duty to X to make provision for his or her proper maintenance and support?' Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer."
Where a parent has neglected a child, the result sometimes may be that the parent has an increased responsibility to make provision for the estranged child, even though the child may have been resentful and maintained little or no contact with the parent. In Campbell v Chabert-McKay [2010] NSWSC 859 White J said at par [119]:
"The plaintiff had nothing to be grateful for. She had been abandoned by her father aged 10. Apart from paying her school fees and providing maintenance to her mother pursuant to orders made in the Family Law proceedings, and providing her with accommodation in Monaco for a week (during which the plaintiff became distressed at the lack of contact with her father) he did nothing for the plaintiff. The deceased’s abnegation of his parental responsibility increased rather than diminished his moral obligation to make adequate provision for her in his will. I reject the defendant’s submission that anything in the character or conduct of the plaintiff diminishes the strength of her claim."
Where the discretion to intervene is enlivened by a finding that an applicant has been left without adequate provision for his or her proper maintenance and support, the exercise of the discretion will be influenced by similar considerations to those applicable to the enquiry which resulted in the finding that the applicant had been left without adequate provision. Singer at 210. The extent to which a court may intervene is limited to doing only that which is necessary to satisfy the obligation of the deceased to make adequate provision for the proper maintenance and support of the applicant.
The evidence
The matters of fact set out below omit the high level of detail contained in the several hundred pages of affidavit evidence. The facts which I will set out concern the salient features of the jurisdictional enquiry and are matters of fact which were not the subject of dispute in any material respect.
The financial positions of the applicant and her two sisters
At the time of her father's death, the applicant did not own a house. She lived in government housing on Flinders Island paying about $60 per week rent. She received a government carer's allowance supplemented with a small income derived from performing various odd jobs in the area. Her total weekly income was about $230. She was not, at that time, incapacitated from working. She had been the recipient of a government new start allowance before she was introduced to a person in need of care. The carer's allowance exceeded the new start allowance and so the applicant took on the role of being a carer. The applicant had little in superannuation, the value of her investments at the time being, about $5,000. The applicant was unmarried and not partnered and so had no financial support from elsewhere. She had no children and so there was no person financially dependent upon her. She had a small amount of savings, probably less than $1,000.
Mr Thorne's second and third daughters were a little, but not much, better off.
At the time of her father's death, the second daughter did not own a house and lived in government housing paying about $175 per week for rent. She was employed as a disability support worker having worked for her then employer for about 2 and a half years. Her after tax income was about $565 per week. She was not married and not living with a partner and so had no outside financial support. She had one child aged about 20 who was no longer dependent upon her financially. She had savings of about $1,000. The value of her superannuation investments was about $25,000.
At the time of her father's death, the youngest daughter did not own a house and lived in government housing paying rent of about $120 per week. She worked as an orchard hand receiving an after tax income of about $500 per week. She was not married nor living with a partner and so had no outside financial support. She had her three children living with her then aged 12, 15 and 17. The value of her superannuation investments was about $12,000. She had savings of about $100.
Only the second of Mr Thorne's three daughters had any qualifications, training or experience potentially equipping her for career advancement. She had undertaken an 18 month carer's course. She also had experience operating a business known as The Flower Barrow in the Devonport Mall.
Since Mr Thorne's death the youngest two daughters have come to live in improved circumstances. The wages of the second daughter have increased significantly and in 2009 she was able to purchase a home for $212,000 taking out a loan, now standing at $168,000, secured by mortgage. The youngest daughter has re-partnered and moved into the home of her new partner.
It was submitted on behalf of the applicant that improved conditions for the other two daughters were foreseeable at the date of Mr Thorne's death, but that improved circumstances were not foreseeable for the applicant, as for a long time she had been without employment and had a number of health problems.
Events occurring after the date of death, but by the time of the hearing of an application can inform as to what was foreseeable by a wise and just testator at the time of death. However, there were also foreseeable possibilities that the positions of the second and third daughters might not improve and with possibilities, such as unemployment or ill health, it was foreseeable that the situation of the second and third daughters might deteriorate.
The size and nature of the deceased's estate
At the time of his death, Mr Thorne's estate consisted of his home at Port Sorell and a shack at Latrobe. He had savings of about $20,000 to $30,000. There is no evidence of the value of the real estate at the date of death. There is a statement of assets and liabilities provided by one of the executors named in the will. That statement was made in 2007. It said that the value of the Port Sorell home, at the time the statement was made, was $205,000, with the home subject to a mortgage of about $4,000. The value of the Latrobe shack was $172,500. The net value of the estate, according to the statement, was $368,169.91. It being common knowledge that real estate values generally increase over time, I conclude that at the date of Mr Thorne's death in 2003 his estate had a net value somewhere in the mid-$300,000's. The result being that a distribution under intestacy rules shortly after death would have resulted in Mr Thorne's three daughters receiving about $120,000 each.
There is no evidence that the applicant made any material contribution to the accumulation of her father's assets. Mr Thorne's youngest daughter is the only one of the three daughters who may have, by her efforts, increased the value of the estate. She, her former husband and her children spent most weekends at Mr Thorne's Latrobe shack. Originally the property contained two small sheds and the youngest daughter and her former husband converted the sheds into a single two bedroom shack.
Mr Thorne had not paid any substantial sums of money or provided benefits to any of his daughters during their adult lives so as to diminish the value of the estate. He had made a contribution to the purchase of a refrigerator by his eldest daughter many years before his death. He had guaranteed a loan taken out by the second daughter to fund the purchase by her of The Flower Barrow business at Devonport, but the loan had been repaid before Mr Thorne's death without the guarantee having been called upon. The youngest daughter had married at age 20 and Mr Thorne paid for the celebration dinner which followed. He had also lent to that daughter $800 at the time of her marriage. The loan had been repaid prior to Mr Thorne's death.
The family relationships
Mr Thorne and his wife lived in north-west Tasmania with their three children until the couple separated in about 1977. Mr Thorne had full-time employment and supplemented his income by taking on additional part-time work. The children would undertake chores on the family property.
Mr Thorne's eldest daughter was his favourite child and the one he had always been closest to. Mr Thorne consumed alcohol to excess and during his marriage was sometimes violent towards his wife and children. Prior to Mr Thorne and his wife finally separating there had been several other separations.
When Mr Thorne and his wife finally separated his eldest daughter, then aged about 19, continued to live with Mr Thorne whilst the other two daughters, then aged about 17 and 15, went to live with their mother. When the eldest daughter was aged about 21 she left home to live on Flinders Island where she remained until shortly after Mr Thorne's death. During this time she maintained regular telephone contact with her father and would send him letters and cards. She returned from Flinders Island to visit her father two or three times per year. Mr Thorne travelled to Flinders Island on one occasion to visit his daughter. He stayed for three or four days. Mr Thorne's eldest daughter organised a 70th birthday party for him but did not invite her two sisters to the party.
The second daughter describes her childhood as being unhappy. Her evidence was that her father did not provide emotional support and that during childhood she was frightened of him. Following the birth of her son in 1982 contact between Mr Thorne and the second daughter resumed. He would come to her home where he would be provided with meals and some domestic tasks, such as ironing, were done for him. The relationship with the second daughter, however, deteriorated in about 1990 and after that there was little contact between the two.
The third daughter, like the second daughter, described her childhood as being unhappy. From the time of her marriage, when she was aged 20, she maintained regular contact with her father. Mr Thorne allowed his youngest daughter regular use of his Latrobe shack. He would visit his youngest daughter and her family from time-to-time when they were at the shack. In addition, the youngest daughter would see her father between 10 and 20 times per year. The youngest daughter and her three children visited Mr Thorne about two weeks before his death. In about 2000 the marriage of the youngest daughter broke down and she moved to a women's shelter with her three children. Mr Thorne knew of this but did nothing to help and did not provide any emotional support. Mr Thorne had not visited his youngest daughter when she was hospitalised at age 32 for a hysterectomy and again shortly afterwards for a lumpectomy.
The state of health of the applicant and her sisters
I include under this heading details of the state of health of Mr Thorne's daughters after his death as health problems, even if unexpected, are an ordinary incident of life and so are reasonably foreseeable eventualities to be taken into account by a just and wise testator.
The applicant had suffered scoliosis of the spine since childhood. Her right leg was shorter than her left. By the time of the death of Mr Thorne the applicant was suffering from back and hip problems. She had low blood pressure which caused dizzy spells. She had undergone a hysterectomy in 2000. Her health has deteriorated since Mr Thorne's death and she is now a disability pensioner.
Mr Thorne's other two daughters do not complain of poor health at the date of his death. However, since then the second daughter has suffered from thyroid problems and depression. In 2011 she underwent a mastectomy as a result of breast cancer. To date she has been unable to afford reconstructive plastic surgery. The youngest daughter now suffers from arthritis, high blood pressure and thyroid problems. She has a fibrocystic disease which has resulted in three surgical procedures being undertaken in recent years. In addition, since Mr Thorne's death, she has undergone bladder surgery.
The contentions of the applicant
Counsel for the applicant submitted that a one-third distribution under intestacy rules did not make adequate provision for the proper maintenance and support of the applicant when the following factors are taken into account:
·The applicant was dependent upon social security payments at the time of Mr Thorne's death whereas her two sisters were in employment and had incomes higher than that of the applicant.
·The applicant had existing serious health problems at the time of Mr Thorne's death affecting her ability to work whereas her two sisters did not.
·It was foreseeable that the applicant, because of her longstanding unemployment and health problems, was less likely than her sisters to advance in life.
·The applicant had received less financial support from Mr Thorne during her adulthood than her two sisters. Mr Thorne had guaranteed a loan for his second daughter and had paid for the wedding dinner for his third daughter.
·The applicant, having undergone a hysterectomy, could have no children who might perhaps support her in later life. The other two daughters had children.
·The applicant was the only daughter who, throughout her adult life, had kept in regular contact with Mr Thorne.
·Mr Thorne intended that the whole of his estate should go to the applicant.
·The applicant has lived in Mr Thorne's former home at Port Sorell since his death paying instalments on the small mortgage. The applicant also paid outgoings such as rates and insurance and attended to maintenance items around the house.
The jurisdictional question – Was the applicant left without adequate provision for her proper maintenance and support?
As set out earlier in these reasons, the Court must find that the applicant has been left without adequate provision for her proper maintenance and support before the statutory jurisdiction to intervene can arise. Regard is to be had to all of the circumstances of the case, not going beyond the object and purpose of the statute.
At the date of Mr Thorne's death the applicant's financial circumstances and health were poor and it was foreseeable that her financial circumstances were unlikely to improve without assistance from the estate and it was foreseeable that her health might deteriorate with advancing years. Her prospects of having improved circumstances later in life were less than the prospects of her two sisters. She had been the only daughter who kept in regular contact with her father during the last few years of his life. The amount she would take on an intestacy might possibly have been enough to enable her to purchase modest accommodation in regional Tasmania, but would not leave enough in addition to provide the applicant with the means to afford to herself modest luxuries such as an occasional holiday, nor would it provide the applicant with any significant financial buffer against the vicissitudes of life.
Mr Thorne had intended that the whole of his estate should go to the applicant for the reason that he believed that she was the only one of the three daughters who cared about him. This, however, would not be the sole or the primary consideration of a just and wise testator. Such a testator would have been sympathetic to the modest financial circumstances of all the three daughters and would have been aware that a roughly similar distribution to each of them from his estate would offer to them a chance of improving their positions in life.
I do not attach any weight to the fact that the applicant has become used to living in the former home of her father. This is a matter which has only eventuated after Mr Thorne's death and a matter which I do not think was reasonably foreseeable. Although the will left the entire estate to the applicant, all that was foreseeable was that upon a grant of probate ownership of the house would be transferred to the applicant and that she might thereafter live in the house. It was not foreseeable that the applicant would live in Mr Thorne's former home for many years after his death without an entitlement to do so arising in the administration and distribution of his estate.
Notwithstanding the matters put forward in support of the application, having regard to the following circumstances, the applicant has not discharged her onus of showing that she was left without adequate provision for her proper maintenance and support.
·The estate was not large.
·None of the daughters had done anything to materially increase the size of the estate and none had received gifts which materially diminished the size of the estate.
·At the time of the death of the deceased all three of his daughters were aged in their forties, were single, lived in government housing and were of modest means.
·All three daughters suffer from health problems.
·Although it was foreseeable that the two youngest daughters might enjoy improved circumstances in later life it was also foreseeable that they might not. Each of Mr Thorne's daughters had reached middle age by the time of his death and none had made significant advancements in life.
·None of the daughters had made any significant sacrifices for the benefit of their father.
·Although the applicant was the only daughter who throughout her life had maintained close contact with her father, there is no evidence of Mr Thorne having himself made efforts to improve his relationship with his two other daughters.
The extra care and affection given by the applicant to Mr Thorne did not involve personal sacrifice. The requirements for the proper maintenance and support of the three daughters at the time of Mr Thorne's death were not so disparate as to impose on Mr Thorne a higher duty to provide for the applicant than any duty he had to make provision for his other two daughters. Although the applicant might have been rewarded for her care and affection, with adequate provision still being made for the other two daughters, it cannot be said that Mr Thorne had an obligation to do so and I am not persuaded that the entitlement of the applicant to a one-third share of the estate was, in the circumstances, inadequate for her proper maintenance and support.
It follows from the failure of the applicant to satisfy the jurisdictional requirement that no authority arises under the Act to interfere with the distributions which will result from the intestacy.
It is understandable that the applicant will be disappointed by the result, particularly in light of the fact that it was the deceased's intention to leave everything to her. However, any perceived injustice in the result cannot be ameliorated even by minor intervention. The Court has no authority under the Act to write or re-write a will based upon the intentions of the deceased.
Order
The application is dismissed.
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