Tolputt v Banfield
[2024] VCC 1082
•12 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY LIST
Case No. CI-22-03472
| PETER MATTHEW TOLPUTT | Plaintiff |
| v | |
| JENNIFER BANFIELD (who is sued as the Executor of the estate of RONALD CHARLES WILLIAM TOLPUTT | Defendant |
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JUDGE: | Her Honour Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 – 14 September 2024 | |
DATE OF JUDGMENT: | 12 July 2024 | |
CASE MAY BE CITED AS: | Tolputt v Banfield | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1082 | |
REASONS FOR JUDGMENT
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Subject:Wills and Estates
Catchwords: Testator family maintenance – where two adult children with significant need - where house left to one of the adult children with need – where residue divided equally between remaining siblings with no allowance for other adult child with significant need – where manipulative, abusive and violent, but loved
Legislation Cited: Administration and Probate Act 1958; Wills Act 1995
Cases Cited:Singer v Berghouse (No 2) (1994) 181 CLR 201; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476; Grey v Harrison [1997] 2 VR 359;
Judgment: An order for provision be made
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Mr A Verspaandoonk | Farrar Gesini Dunn |
HER HONOUR:
1Ron Tolputt[1] died on 13 February 2022. At the time he had five living children: Jennifer, Patricia, Peter, Ruth, Joanne and Cynthia. Peter, who is the plaintiff in this proceeding, says that his father failed to make adequate provision for him in his will. Peter has made an application for a family provision order under Part IV of the Administration and Probate Act 1958 (“the Act”).
[1]Most of the witnesses preferred to be referred to by their first name during the course of the trial. I have adopted this approach in these reasons.
2Ron and his wife Mary had seven children together – Jennifer, Ronald Jnr, Joanne, Peter, Patricia, Ruth and Cynthia. Mary was a member of the stolen generation. She was a loving and generous mother to all her children. It was apparent from the evidence that her care and generosity was extended to many others as well. Ron could be a hard man, but was also loving and fair. The children were raised in a context which, at times, included severe hardship and deprivation. The impact of financial insecurity was felt particularly strongly by the eldest children, who were each required to leave primary school to perform manual picking work on farms. However, it was plain from the evidence given at trial of Patricia, Jennifer, Joanne, Peter, Ruth and Cynthia, that Ron and Mary held a deep and abiding love for each of their children.
3Mary died tragically in a car accident on 24 October 2009. Ruth was the driver of the car and was also injured in this accident. At the time of her death, Ron and his wife had lived in Western Australia for over two decades. For the whole of that time, their son Peter says he lived either with them or nearby. At some stage, their daughter Joanne moved into their home. Peter says it was not until after Mary died. Joanne says it was in about 2002.
4About a year after Mary’s death, Ron and Joanne moved to Geelong to be closer to his other daughters. Peter stayed behind in Western Australia. Peter was to see his father only once more before he died.
5Shortly after Ron moved to Geelong, he executed a new will. Ron’s new will left any real property he owned at the time of death to Joanne. The residuary of the estate was then to be divided in equal shares between:
“… my children Jennifer, RONALD CHARLES TOLPUTT (Ronald), PETER MATTHEW TOLPUTT (Peter), PATRICIA ANN CARTER (Patricia), RUTH THERESA MERSON (Ruth) and CYNTHIA JOAN ALSOP (Cynthia) who survive me … .”[2]
[2]DCB 4.
6Had he not owned any real property at the time of his death, his net estate would have been left to:
“… my children Joanne, Jennifer, Ronald, Peter, Patricia, Ruth and Cynthia who survive me and if more than one as tenants in common in equal shares.”[3]
[3]Ibid
7At the time of his death on 13 February 2022, Ron was living in a house, owned by him, in the suburb of Corio, in Geelong. His daughter Joanne lived with him and was his full-time carer. Ronald Jnr had predeceased Ron. Accordingly, under the express terms of the will, the Corio house was left to Joanne. His five other surviving children were to share the residue of his estate equally.[4]
[4]An issue arises as to whether s45(1) of the Wills Act 1997 operates to place the four children of Ronald Jnr in his place as residual beneficiary; or whether only the five other surviving children are residual beneficiaries. This is discussed further below.
The two-stage process
8The determination of an application for a family provision order is a two-stage process.[5]
[5] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 209-210 (per Mason CJ, Deane and McHugh JJ)
9First, the Court must be satisfied that the threshold jurisdictional requirements for the making of a family provision order under s91(2) of the Act are met. In the present case,[6] this requires the Court to be satisfied that:
(a) Peter is an “eligible person”;[7]
(b) at the time of death, Ronald had a moral duty to provide for Peter’s proper maintenance and support;[8] and
(c) the distribution of Ronald’s estate in Ronald’s will fails to make adequate provision for Peter’s proper maintenance and support.[9]
[6]Neither claimant relies upon paragraphs (h) to (k) of the definition of “eligible person”, so s91(2)(b) does not apply.
[7] Section 91(2)(a) of the Act. The term “eligible person” is defined in s90 of the Act.
[8] Section 91(2)(c) of the Act.
[9] Section 91(2)(d) of the Act.
10Second, the Court must determine whether to exercise its power to grant a family provision order and, if so, the amount of any such provision.
11Both the first and second stages require consideration of the extent to which the provision made is “adequate” for the “proper” maintenance and support of the claimant. The use in the Act of these two interrelated terms imports a requirement that the Court balance the needs of the claimant; their capacity to provide for themselves through other means; the nature and extent of the moral duty owed to them by the deceased; the size of the estate, and the circumstances of other potential objects of the deceased’s benefaction. As explained by Lord Romer in Bosch v Perpetual Trustee Co Ltd,[10] an amount may be adequate for the maintenance of a claimant, but not adequate for the proper maintenance of the particular claimant in question, having regard to the immense fortune of their deceased father. Conversely, an amount which is insufficient for the adequate maintenance of a claimant may nevertheless be all that is proper, having regard to the limited means of the deceased and the existence of others to whom a moral duty to provide is owed. In performing this balancing exercise, the Court must be astute to the fact that it can do no more than is necessary for the claimant’s proper maintenance and support.[11]
[10] [1938] AC 463 at 476 (per Lord Romer).
[11] Section 91(5)(a) of the Act.
12These considerations are of particular relevance where, as here, the Court is faced with a very small estate and at least two adult children (Joanne and Peter) in significant need.
The Court’s role as arbiter of “moral duty”
13An application for testator family maintenance, perhaps uniquely in the law, requires the Court to grapple expressly with the scope of a deceased’s “moral duty” to make provision for another. As will be seen above, moral duty is expressly referred to in s91(2) at both the first and second stages of the enquiry. It informs the question of whether a deceased has failed to make adequate provision for the proper maintenance and support of the claimant. Further, sub-s91A(2)(k) provides that in making a family provision order, the Court may have regard to the character and conduct of the eligible person or any other person.
14Some 29 years ago, the majority of the High Court raised doubt as to whether the words “moral duty” provided useful assistance to the question of whether, and to what extent, a family provision order should be made.[12] However, in Victoria, moral duty has long been accepted as the “touchstone” of a claim for testator family maintenance,[13] a view which now has express statutory imprimatur in s91 of the Act.
[12] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 209 (per Mason CJ, Deane and McHugh JJ)
[13] Grey v Harrison [1997] 2 VR 359
15As explained by Callaway JA:
“…it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s. 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. … .”[14]
[14] Grey v Harrison [1997] 2 VR 359 at 366
16Determining whether a parent has breached their moral duty to an adult child is a difficult and fraught task, having regard to all of the complexities of the internal dynamics of a family, the multigenerational impacts of trauma and the enduring – but tangled – nature of love between a parent and their children. In making such a determination, the Court must act judicially and is limited by the purpose of the assessment. Thus, the role of the Court is not to assess the comparative morality of the various players in the broad, according to its own idiosyncratic and abstract conceptions of morality. Rather, it is to determine whether, having regard to the legislative test, there has been a breach of moral duty sufficient to justify the abrogation of freedom of testation and the grant of an order for family provision. This is of particular relevance to this case, given the scandalous allegations which were made against Peter in the course of the trial, the most grave of which I will not repeat here and was not ultimately relied upon. To quote again from Callaway JA:
“… it is one thing to say that the court should consider what is proper having regard, among other things, not only to the conduct of a proposed object of provision or further provision but also to the testator’s other obligations. It is another thing to say that a person whose dire need would have engaged the sympathy of a wise and just testator may be punished for immoral conduct, such as mendacity, of which the court does not approve. Ultimately the question is always what constitutes adequate provision for the plaintiff’s proper maintenance and support. … .”
17To put it in the more direct language used by the testator in that case, the fact that a testator does not want “his estate pissed up against the wall” by an alcoholic son who is a thief and habitual liar,[15] may not obviate the moral duty to provide for that son. Character and conduct are certainly relevant factors. But character and conduct are of greatest relevance when it directly impacts upon the relationship between testator and claimant and, therefore, the duty to provide.
[15] Grey v Harrison at 362
Who were the residuary beneficiaries of the estate?
18Clauses 3-6 of Ron’s will provided as follows:
“3. REAL PROPERTY
If at the time of my death I:
(a)have an estate or interest in any real property (my Real Property) then, but not otherwise, clauses 4 and 5 will apply;
(b)do not have an estate or interest in any real property then, but not otherwise, clause 6 will apply.
4. GIFTS
I give my estate and interest in my Real Property to Joanne provided that if Joanne predeceases me then my Real Property will form part of the residue of my estate and be distributed in accordance with clause 5.
5. DISPOSITION OF RESIDUE
I give the residue of my estate to my Trustee on trust:
(a)to sell, call in and convert into money the whole or any part of my estate;
(b)out of the proceeds of sale and conversion and out of any ready money I have at the time of my death, to pay:
(i)my funeral and testamentary expenses and my debts;
(ii)any succession and estate duties and taxes, capital gains tax owing or incurred at the time of my death and other like duties and taxes payable in respect of my estate or as a result of my death; and
(iii)the costs of and incidental to the execution of the trusts of this Will; and
(c)subject to the payments referred to above to hold the residue3 of my estate for such as my children Jennifer, RONALD CHARLES TOLPUTT (Ronald) , PETER MATTHEW TOLPUTT (Peter) , PATRICIA ANN CARTER (Patricia ), RUTH THERESA MERSON (Ruth) and CYNTHIA JOAN ALSOP (Cynthia ) who survive me and if more than one as tenants in common in equal shares.”[16]
[16]DCB 4
6. DISTRIBUTION OF ESTATE
I give the whole of my estate to my Trustee on trust:
(a) to sell , call in and convert into money the whole or any part of my estate;
(b)out of the proceeds of sale and conversion and out of any ready money I have at the time of my death, to pay:
(i) my funeral and testamentary expenses and my debts;
(ii) any succession and estate duties and taxes, capital gains tax owing or incurred at the time of my death and other like duties and taxes payable in respect of my estate or as a result of my death; and
(iii) the costs of and incidental to the execution of the trusts of this Will; and
(c)subject to the payments referred to above to hold the whole of my estate for such of my children Joanne , Jennifer , Ronald, Peter, Patricia, Ruth and Cynthia who survive me and if more than one as tenants in common in equal shares.”
19At the time of his death, Ron was the sole proprietor of the Corio property. Accordingly, clause 3 had the effect that clause 4 and 5 (giving the Corio property to Joanne, with the residue to be divided between his other surviving children) applied; and clause 6 (dividing the whole estate between his surviving children) did not apply.
20Ronald Jnr predeceased Ron. As he did not survive Ron, the express words of clause 5(c) would exclude his estate from provision. However, s45 of the Wills Act 1995 provides:
“Dispositions not to fail because issue have died before the testator
(1) If a person makes a disposition to any of his or her issue, where—
(a) the disposition is not a disposition to which section 43 applies; and
(b) one or more of the issue do not survive the testator for thirty days; and
(c) the interest in the property is not determinable at or before the death of the issue—
the issue of the deceased issue who survive the testator for 30 days take the deceased issue's share of the disposition in place of the deceased issue in the same manner as if the testator had died intestate and as if the testator had died leaving only issue surviving.
(2) Subsection (1) applies to dispositions to issue either as individuals or as members of a class.
(3) Subsection (1) does not apply if a contrary intention appears in the will, but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purposes of this section.
(4) If an original beneficiary under a will—
(a) is issue of the testator; and
(b) did not survive the testator by 30 days; and
(c) did not fulfil a contingency required by the will—
subsection (1) does not operate to entitle issue of that beneficiary to a disposition under the will.”
21Counsel for the defendant contended that s45(1) applied to the disposition of the residuary estate under clause 5(c), with the effect that Ronald Jnr’s issue took Ronald’s share of the residuary estate. Accordingly, he contended that the residual estate was to be divided in six parts, with five of the six parts divided equally between the five surviving siblings other than Joanne, and the sixth part divided equally between the four children of Ronald Jnr.
22Section 45(3) provides that “Subsection (1) does not apply if a contrary intention appears in the will, but a general requirement or condition that a beneficiary survives the testator…does not indicate a contrary intention for the purposes of this section”. Whether as a matter of construction, Ron’s will indicates a contrary intention or does no more than include a “general requirement or condition that a beneficiary survives the testator” is an issue of some legal complexity – see for example Public Trustee of Queensland v Jacob [2006] QSC 372; Bassett v Hall (1994) 1 VR 432; and Kavanagh (as Executrix for the Estate of Reardon) v Reardon (children of the late Reardon) [2012] VSC 174 and the cases referred to in those cases. For example, clause 5(c) of Ron’s will includes the phrase “and if more than one as tenants in common in equal shares” a phrase which is very similar to the phrase held to evidence a contrary intention in Public Trustee of Queensland v Jacob. The interplay between clauses 3, 4, 5 and 6 of Ron’s will and the express allowance in the differing structure of clause 5(c) and 6, in particular, for the circumstance where Joanne predeceased Ron may also indicate a contrary intention.
23The plaintiff was self-represented and gave no indication that he understood this issue. There was no effective contradictor. In the circumstances, I have concluded that it is better that I do not base my reasons for decision on a finding, one way or the other, as to whether the residuary estate is to be divided in six parts or five. In any event, the very unfortunate reality is that the legal costs of this dispute have consumed the residue which might otherwise have been available for distribution.
Special circumstances of trial
24Peter was self-represented throughout the trial. He was a proud Aboriginal man. He was on a disability support pension and living in Geraldton, Western Australia, in accommodation rented from a cousin. He also had access to a government provided unit, but as it was one of about 40 units, he said he found it too crowded. He said that living there was also inconsistent with his need to be out “in the bush”. Although verbally articulate, he had very limited ability to read and write and no computer skills. As I will explain further below, he also had great difficulty controlling his emotions and was prone to aggressive and inappropriate outbursts during the course of the trial.
25He appeared at the trial via a Zoom connection provided at the Meekatharra Community Resource Centre, with the daily support of Ms Jo Bonnily, the Manager of the Meekatharra Community Resource Centre. Ms Bonnily provided an extraordinary level of care, support and assistance to Peter throughout the course of the trial. Her support secured Peter’s ability to access justice in this proceeding. It is difficult to see how this would have been possible without her assistance. The Court extends its gratitude to her and commends her on her dedication and commitment to supporting members of her community.
Parties’ submissions
26Plaintiff said that he wanted what he considered to be fair – which was the estate split equally between parties. He could not accept that his parents would want to leave the entire house to Joanne. He sought provision of $180,000, which he said was enough to buy a house, a vehicle and a gold detector and have a bit left over to live on comfortably. He said “I’m not asking for half, I’m not asking for all of it. I’m asking for a portion of it so that I can survive, so that I can live without struggling like I have done for the last 60 years”.[17] He denied that his mother had any intention to leave the property to Joanne. Although he accepted that his father had this intention, he contended that it was due to undue influence or pressure exerted by his daughters. He also raised a number of issues which he said went to the character and conduct of his siblings, other than Ruth.
[17] T11: L 21-24
27The defendant submitted that it was the steadfast intention of both Ron and Mary that Joanne should have the house and that the Court should respect and uphold this intention. The only way to do so was to dismiss the plaintiff’s claim. The defendant submitted that Ron had a particularly strong moral obligation to his daughter Joanne, given the care she had provided for him and Mary for many, many years. He said that Joanne had moved back in with her father to care for him, and had devoted herself selflessly to his care for many years, giving up the opportunity for paid employment in the process. It was Joanne’s care which meant that he did not have to go into a nursing home, which was his strong wish. He had only one substantial asset, which was the house in which he and Joanne had lived for 10 years. Further, Joanne was utterly dependent on him for accommodation. He had an overwhelming moral duty to her – she needed to continue living in the house and had nowhere else to go. There was at best $90,600 in cash in the estate, dividing that equally between the other siblings made sense. In any event, the defendant submitted, this amount would now be entirely consumed by the legal fees of the estate.
28The defendant also relied heavily upon Peter’s character and conduct, including:
(a) his theft of $5,000 from Jennifer when he was 18;
(b) allegations of violence and threats of violence towards Joanne and others;
(c) exploitative behaviour, such as taking money for a deposit for a house and then spending it; taking gold nuggets; and lying about the price at which he sold didgeridoos made by family members; and
(d) wasting money that was provided to him.
29It was further said that Peter’s behaviour had led to Ron’s desire to limit contact with Peter after he moved to Corio.
General observations about evidence
30Each of the living siblings gave evidence and were cross-examined. The events described traversed many, many years. At times, the focus of the evidence was on matters which were not highly legally relevant, although no doubt the events described had a high level of emotive significance to the family members.
31None of the witnesses demonstrated particularly reliable recall – understandably given the many years which were covered. There was very little documentary evidence of anything in dispute, although evidence of places of residence, for example, might have been able to be obtained. Dates, in particular, were a source of confusion, particularly under cross-examination. There was also an element of recitation to the delivery of the evidence-in-chief of Joanne and Jennifer, particularly. The level of detail they were able to provide in this evidence stood in marked contrast to their recall and the level of detail and specificity they were able to provide in answer to questions for which they could not prepare. Both Joanne and Jennifer had a clear interest in the successful defence of this proceeding. Joanne, in keeping the Corio house. Jennifer because she maintained a deep held rage at Peter for stealing $5000 from her when he was eighteen years old. It was plain that both had put a lot of effort into recalling matters which they believed furthered the defence of the proceeding. I mean no criticism by this, but it does reduce the reliability of their more detailed evidence-in-chief when compared to their unscripted answers.
32I was particularly impressed with the evidence of Ruth, who had no interest in the outcome but was plainly struggling to be fair as between all her siblings and give evidence to the best of her recollection. She also frankly admitted to problems with her memory since the car accident. Where she gave evidence of specific, positive events, I accept it.
33Peter’s cross-examination was frequently interrupted by his emotional and aggressive outbursts. This made his cross-examination very difficult to complete. Counsel for the defendant is to be commended for his patient and professional manner throughout. At times, Peter’s evidence was compelling. When calm, he made frank admissions of the contributions made by Joanne to his father’s well-being. He was steadfast in his support for Ruth. He spoke compellingly of the difficulty of his personal situation. At other times, however, his own evidence and demeanour contradicted his denials, particularly in relation to his volatile and violent nature. At times, he also came across as manipulative. He was also at pains to make scandalous allegations about other family members, apparently as a form of revenge for what was said about him.
Are the threshold requirements for making a family provision order met?
Consideration
34Section 91(2) of the Act provides (relevantly) that the Court must not make a family provision order unless satisfied that:
(a) Peter is an eligible person;
(b) that at the time of death, Ron had a moral duty to provide for Peter’s proper maintenance and support; and
(c) that the distribution of the Ron’s estate fails to make adequate provision for Peter’s proper maintenance and support
35There is no question that Peter, as one of Ron’s adult children, was an eligible person.
36Peter was also a person to whom Ron owed a moral duty. Although there was evidence of some conflict between Ron and Peter in the last years of his life, it was clear that Ron loved all his children, including Peter, and that over the years Peter relied significantly upon Ron and Mary for both emotional, physical and financial support. There is nothing in the evidence which would wholly negate the existence of a moral duty owed by Ron to his son Peter.
37The critical question for determination on the threshold question of whether the requirements in s91(2) are met is thus whether the Court is satisfied that the distribution of assets under the will failed to make adequate provision for Peter’s proper maintenance and support. This question must be considered at the date of death.[18]
[18] Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508 (Dixon CJ) and at 526 (Kitto J)
38The submissions made on behalf of the defendant concerning the strength of the moral duty that was owed to Joanne by Ron were compelling. However, the estate as at the date of death did not consist solely of the house bequeathed to Joanne. There was also a little over $90,000 in cash assets held in the estate. Under the terms of Ron’s will this was required to be distributed equally between the residuary beneficiaries. According to Jenny, the executor of the will, this would have allowed an amount of $15,000 each. If the submissions of the defendant were correct and the residuary was to be divided six ways, this sum would have been even smaller.
39The evidence establishes that, as at the date of death, two of the adult children of Ron were in particularly parlous circumstances – Joanne and Peter. That is not to say the other children were necessarily well off, but each were living in a home of their own (albeit subject to mortgages) in relatively stable circumstances and with supportive partners and families. As I will discuss further below, by contrast, Peter was living pension payment to pension payment in a remote part of Western Australia, without familial support; running out of money for food by the end of the fortnight; lacking stable accommodation suitable to his needs; and suffering significant medical conditions.
40This was not a case in which a testator wished to divide their estate equally between all children without favouring any one child over another. The estate was not to be divided equally. Rather, a very large portion was given to Joanne, in acknowledgment of her particular and special needs and her contributions to her parents’ care. I am not satisfied that Ron’s decision to do so, as at the date of death, amounted to a breach of moral duty. However, the distribution of the residue did not contain an equivalent, or any, acknowledgment of Peter’s parlous circumstances. Providing Peter only an equal share in the relatively small amount of cash left in the estate once Joanne was provided with the house was not adequate provision for his maintenance and support. To divide the residue equally without acknowledgment of Peter’s special circumstances was also not adequate provision for his proper maintenance and support.
41I am satisfied that the threshold requirements of s91(2) are met, and the Court has the jurisdiction to make a family provision order.
What (if any) family provision order should be made?
42As it is satisfied that the requirements of s91(2) are met, the Court has the power to make an order for provision for Peter’s proper maintenance and support. Section 91(1) is permissive, the Court may make a family provision order, it is not compelled to do so merely because it is satisfied that there has been a breach of moral duty. Unlike the threshold requirements of s91(2), in the second stage the Court considers the question of if, and what, provision should be made having regard to the facts in existence at the time of making the order[19].
[19] Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 509 (Dixon J) and at 528 (Kitto J)
43In determining the amount of provision to be made by a family provision order, the Court must take into account:
(a) the degree to which, at the time of death, Ronald had a moral duty to provide for Peter;[20]
(b) the degree to which the distribution of Ronald’s estate fails to make adequate provision for Peter’s proper maintenance and support;[21] and
(c) the degree to which Peter is not capable, by reasonable means, of providing adequately for his own proper maintenance and support.[22]
[20] Section 91(4)(a) of the Act.
[21] Section 91(4)(b) of the Act.
[22] Section 91(4)(c) of the Act. This factor is not a mandatory consideration if Peter is determined to be a child with a disability as defined in s90 of the Act.
44Section 91A of the Act provides further for the matters to be considered in making a family provision order. Section 91A(1) requires the Court, in making a family provision order, to have regard to the deceased’s will; any evidence of Ronald’s reasons for making the dispositions in his will and any other evidence of his intentions in relation to providing for eligible persons.[23] Section 91A(2) of the Act lists a number of other matters to which the Court may have regard in making a family provision order, including:
[23] Section 91A(1) of the Act.
(a) any family or other relationship between Ronald and Peter, including the nature and length of the relationship;
(b) any obligations or responsibilities of Ronald to Peter or any other eligible person or beneficiary of the estate;
(c) the size and nature of the estate;
(d) the financial resources (including earning capacity) and financial needs of Peter, and any other eligible person or beneficiary of the estate, at the time of the hearing, and for the foreseeable future;
(e) any physical, mental or intellectual disability of Peter, any other eligible person or beneficiary of the estate;
(f) Peter’s age;
(g) any contribution by Peter to building up the estate or Ronald’s welfare or the welfare of his family;
(h) any benefits previously given by Ronald to Peter, any other eligible person, or any beneficiary;
(i) whether Peter was being wholly or partly maintained by Ronald before his death and the extent to which, and basis on which, Ronald had done so;
(j) the liability of any other person to maintain Peter;
(k) the character and conduct of Peter or any other person;
(l) the effects a family provision order would have on the amounts received from Ronald’s estate by other beneficiaries; and
(m) any other matter the Court considers relevant.
45In these reasons, I will consider those of the factors listed in s91A which are relevant, before turning to consider the degree to which, at the time of death, Ronald had a moral duty to provide for Peter;[24] the degree to which the distribution of Ronald’s estate fails to make adequate provision for Peter’s proper maintenance and support;[25] and the degree to which Peter is not capable, by reasonable means, of providing adequately for his own proper maintenance and support.[26]
[24] Section 91(4)(a) of the Act.
[25] Section 91(4)(b) of the Act.
[26]Section 91(4)(c) of the Act. This factor is not a mandatory consideration if Peter is determined to be a child with a disability as defined in s90 of the Act.
Will and other evidence of intentions and reasons of Ronald
46By his will, Ronald clearly expressed an intention that Joanne have his house. His will was prepared with the assistance of lawyers. There is no evidence that he expressed any contrary intention, subsequent to executing this will.
47To the contrary, a video recording of Ronald was tendered, in which Ronald reads from a document while lying in what appears to be a hospital bed. He states:
To Joanne Carter I leave my house and my belongings to do with as she sees fit. I have done this this way as Joanne has been both my mother [sic] and my helper carer friend and companion. Joanne has put her own life on hold for many years. Taking care of both her mother who died years ago and myself for ten years now and it was her mother wishes as well as mine that Joanne carter is left our house which has been her home for at 52 [indistinct] Coleraine Crescent Corio on my death.
48Further Joanne, Jennifer, Ruth and Cynthia all gave evidence that they had been told by Ron that he wanted the house to go to Joanne.
49I accept that Ron was deeply impacted by the death of Mary. I also accept that in the years that followed, Ron became highly dependent upon Joanne for company and care. Cynthia said that Ron had never cooked and cleaned for himself. As he became increasingly frail with age, it is clear that his dependency upon Joanne increased. However, it would be a very big leap to go from the natural gratitude and dependency of an elderly man towards a daughter who had dutifully cared for him at his most infirm and vulnerable, to a finding that there was undue pressure or influence placed upon him. I am not satisfied that any undue pressure or influence was placed upon Ron to prepare this will or to make the video recording.
50Indeed, the independence of Ron’s will is demonstrated by his refusal to transfer the house to Joanne prior to his death, even though he was warned by Jennifer that Peter would likely challenge the will and that the only way to guarantee the house would go to Joanne was to transfer it before he died.
51The intentions of Ronald clearly tell against the making of any family provision order.
Intentions of Mary
52As Ron’s estate was increased by Mary’s assets, it is also relevant to consider Mary’s intentions.
53Mary’s last will was made in 1993. It essentially provided for the estate to go to Ron and, if he predeceased her, to be divided equally between her children.
54As I have already noted, Ron shortly before his death said that it was Mary’s intention that the house go to Joanne. Both Joanne and Jennifer were adamant that Mary had expressed the intention that Joanne have the house. Cynthia and Patricia also gave evidence that Mary had said to her that the house was to go to Joanne. Ruth didn’t disagree that her mother said that she would leave house to Joanne, but said Mary had also said she would leave the house to a few different people. In view of my earlier findings in relation to Ruth’s credibility and reliability, I accept this evidence.
55Joanne said her mother had gone to the extent of trying to transfer house into her name but had been told she would lose her pension. This was not supported by evidence from the other siblings. It would be surprising that Mary would have been considering actually transferring the house out of her name, rather than changing her will. If Mary had gone to the extent of seeking advice on transferring the house, but been advised not to, one would have thought the logical next step would be to change her will. I note, also, that Ronald specifically refused to transfer the house to Joanne when it was suggested to him shortly before his death. I do not accept this evidence is reliable.
56Having regard to all the evidence, I am satisfied that from time to time, Mary expressed the intention that the house they were living in at the time should go to Joanne. I am also satisfied that she loved all her children and would have wished them to be provided for. Ruth’s husband put it best in evidence “Oh, they definitely loved you all; good, bad, and the ugly.”[27] However, in my view the best evidence of Mary’s firm testamentary intentions are her will. If she had reached a firm intention that the house should go to Joanne, some years before her death, then such a significant decision would have been reflected in a change to her will.
[27] T146, L20-21
Personal circumstances of Peter Tolputt
57Peter is on a disability pension. He is living in Geraldton in a place rented from his cousin. He also has a government unit available to him, but his evidence was that he felt unable to live there as it was too crowded and prevented him getting into the bush. This evidence appeared genuinely given and was compelling. Although, in the absence of medical evidence, it may be that his desire to live in Geraldton can only described as an accommodation preference, it was clearly a deeply held and emotionally significant preference, which was important to his wellbeing.
58His uncontradicted evidence was that by the end of the fortnight he was running out of money for food. He said he had just over $1000 assets to his name. He accepted he was a skilled gold prospector, but was unable to use these skills without a metal detector and car.
59Peter was born with a hole in his heart. There was evidence before the Court, both in terms of his oral evidence and in medical reports and clinical notes that he had emphysema, rheumatic heart disease and possible ischemic heart disease, COPD, asthma, hepatitis C, panic attacks, aneurism and arthritis. He gave evidence he had difficulty walking long distances and suffered from dizzy spells, panic attacks and trouble breathing. He met the criteria for a disability support pension. Although the medical evidence was general and imperfect, in view of Peter’s self-represented and impecunious status and the small size of the estate, it would be unreasonable to expect a detailed medical report. I am satisfied that Peter suffers significant medical disabilities which impact on the quality of his life and capacity to work and care for himself.
60When asked what he needed, he responded:[28]
I need my own home. I need my own home so that I know that in my last days, when my interest in this thing, that I've got somewhere to lay my head where I - I know that I'm right. That I know that I'm safe. I - I need to have a vehicle so that - not only try and get in and out of the bush but I've got it there in case I have to go to a hospital or have got an emergency. I've got nothing now. All I've got is, what, an old lounge chair, double bed, a fridge, a little old television, a washing machine.
[28] T37, L17-26
Peter’s contributions to, and benefit from, the deceased and his family
61I accept that Peter made the following contributions to the estate:
(a) he helped build a fence in Dart Street;
(b) he lived with his parents in Kalgoorlie and at times cared for his mother and dressed a wound related to diabetes on her stomach;
(c) he worked together with Mary and Ron gold prospecting and shared the proceeds;
(d) the proceeds of this gold prospecting were used to buy materials to renovate the Frank St property;
(e) he converted the garage at the Frank St property into a bungalow and also helped build a fence;
(f) he repaired the sewerage system, and assisted Ron to repair the roof of the back shed in the Hammersely St property; and
(g) he helped put a fence in Corio.
62I am not satisfied that Joanne’s evidence that he was specifically provided $10,000 for a house deposit is sufficiently reliable to be accepted, particularly given it was based on hearsay only. However, I am satisfied that he was provided significant sums of cash from time to time by his parents. He admitted as such. I am also satisfied that rather than saving that money to buy a house or for a fund to protect against contingencies, he spent any money he was provided on his immediate needs and wants.
63I am also not satisfied, specifically, that he sold didgeridoos made by Joanne and Mary for a much higher price than he told them that he obtained. This was based on Joanne’s evidence of hearsay from an unnamed person only. However, I think it likely, given his demonstrated personality, that he took financial advantage of his family members from time to time, when it suited him.
64Overall, I accept that Peter made contributions in labour and the proceeds of gold prospecting to his parents’ estate. I accept he also provided some care to his mother, although I think it likely Joanne was a far more effective carer. However, in return he received significant accommodation, support and companionship from his parents – and forgiveness for the bad aspects of his behaviour.
Character and conduct of Peter
65I have no doubt that Peter can be a deeply unpleasant, violent and self-centred man. He was clearly prone to impulsive and utterly irrational acts of rage. That was demonstrated by his behaviour in Court. It is likely that this characteristic is long-standing. This is demonstrated the fact that he stole $5,000 from his sister Jennifer when he was 18 years old, a theft which was personally devastating for Jennifer and no doubt of a matter of significant shame to Mary and Ron and a breach of their family values.
66In relation to acts of violence, I am satisfied that when he visited Ron in Corio, he deliberately struck Joanne so forcefully that one of her false teeth was knocked out. In cross-examination he denied using a closed fist and asserted that Joanne hit him first and he acted in self-defence. However, he could not resist claiming to have knocked out three, rather than only one, tooth (notwithstanding his assertion that he did no more than push Joanne away with an open hand). Joanne’s account of this event was far more believable and likely to be true.
67I also accept that in the course of the same incident he lowered his trousers and displayed his penis, demanding that Joanne “suck his cock”. Again, his denial that he had ever done anything like this was to some extent contradicted by his own behaviour in the courtroom when he lost his temper – which included, at one point, lowering his trousers and asking Counsel for the defendant whether he could see moths flying out of there. Again, Joanne’s account of this incident was compelling and more likely to be true.
68On the other hand, when calm, he was capable of rational, empathetic responses. I also have no doubt that he loved, and was loved by, his parents. Despite everything, he was loved by them and they wished to provide for him. It was also clear that he relied upon them to provide him support and stability and that they willingly provided that to him during Mary’s lifetime and while living in Western Australia.
Personal circumstances of Joanne
69I accept that Joanne was born with twisted legs and required physiotherapy to learn to walk, and continues to get pain from her hips down. She also suffers from diabetes which leads to problem in her feet. She has two adult daughters and a good relationship with her siblings, with the possible exception of Ruth. I accept that neither her sisters nor daughters have a great deal of spare resources and that it would not be reasonable to expect any of them to accommodate her long-term. However, she could call on their assistance if in urgent need.
70I accept that at times she has given up paid employment to care for Mary and Ron and that ultimately, after Mary’s death, she stopped working in order to care for Ron. I accept that after that time she was dependent upon Ron for accommodation and for his 50% contributions to living expenses.
71I do have concerns as to whether she will be able to make ends meet at the Corio house. She was not left any cash provision in the estate and was previously able to meet the expense of living there with the assistance of Ron’s contributions to living expenses. It was apparent from her evidence that meeting expenses like rates payments was a struggle, although she hoped to be able to do so.
Joanne’s contributions to, and benefit from, the deceased
72There is no dispute that Joanne lived with, and cared for, Ron from the time he moved to Corio in 2010 until his death in 2022. Peter in his evidence accepted that because of her care, Ron did not end up in an aged care home.
73I accept that for a period of approximately 12 years, Joanne lived with her father and did all the cleaning and cooking. I also accept that the intensity of his care requirements dramatically increased in the two years before his death. He was unable to walk far and suffered from both urinary and faecal incontinence as well as repeated bouts of vomiting.
74It is to Peter’s credit that he volunteered in his evidence in chief that if Joanne had not cared for her father as she did, Ron would have ended up in a nursing home. The evidence of Joanne’s commitment to the welfare of Ron over many, many years is compelling. This is incontrovertible.
75I do not accept that Joanne’s very detailed evidence of lengthy stays with Mary and Ron in Western Australia is sufficiently reliable to be accepted. It was apparent that Mary and Ron very much maintained an open house arrangement where family members could come and go. I was left with the distinct impression that there was always someone or other of their adult children staying and frequently this also extended to family members such as grandchildren. It was apparent that Joanne’s memory as to dates was not strong – for example she gave evidence of living with her mother and father in “2022…to 2023”[29], which was plainly incorrect. Even on her own evidence it was apparent that she moved in and out quite frequently. So, for example, in 1991 she said she moved into Frank St Kalgoorlie with her parents, but the same year she moved out into a nearby property. Aside from Jennifer’s evidence, there was no specific corroborating evidence for the particular periods that Joanne referred to. Ruth specifically denied it, although at a time when she was not living with her parents. I doubt that Joanne and Jennifer’s evidence was given based on direct recollection, given both Jennifer and Joanne’s problems with recall, however no supportive documents were tendered.
[29] T234, L13-15
76However, I do accept that from time to time and for significant periods, Joanne stayed with both Mary and Ron, in Western Australia and, while there, provided them both significant domestic assistance and care.
77In all the circumstances, I accept that Ron had a primary moral duty to maintain a roof over Joanne’s head. The question is whether that duty must be satisfied by provision of an unencumbered, free-standing house (with no allowance for any nest egg). A difficulty is that there was limited evidence of the value of the Corio property and no evidence of the cost of obtaining alternative accommodation for Joanne. However, the paucity of evidence must be considered in the context of a legal proceeding which, as it was, ate up all the residue of the estate with legal fees and a plaintiff who was illiterate and struggling to put food on table on other. To expect expert valuation evidence from either party in that context would be unrealistic.
Character and conduct of Joanne
78In my view, there is no probative evidence that Joanne’s character and conduct towards her parents was anything other than devoted, caring and altruistic.
Evidence relating to other beneficiaries
79As is often the case in these matters, there was a lot of evidence in relation to matters which no doubt had emotional significance to the witnesses, but was of little probative value to the issues to be determined by the Court. For example, I see no probative value in arguments about who visited Peter in prison or in the various scurrilous allegations made by Peter about other family members (although, for the record, I state that I do not accept these allegations are true).
80I am satisfied that Mary and Ron were very generous and from time to time gave significant gifts and support to all of their children. The Court is never going to be able to satisfactorily untangle the family dynamics and shared contributions and benefits. In this context, I do not think there is value in engaging in questions about whether a sibling got a gold nugget, or jewellery or a car on any particular occasion.
81I would not describe any of the siblings’ situations as comfortably well-off. However, I am satisfied that each of the siblings, other than Joanne and Peter live in their own homes (albeit subject to mortgages).
82I am not satisfied there are any relevant issues in relation to character and conduct of the other siblings and, in any event, it seem clear that whatever the outcome of this dispute none of them will inherit.
83I am not satisfied that the manner in which Ron died was due to any lack of care by Joanne or her sisters. To the contrary, I find that the care provided to Ron before his death was impeccable.
Size and nature of estate and impact on other beneficiaries
84I am not satisfied that the assets of the estate have been significantly diminished through the loss or destruction of Ron’s personal assets, as alleged by Peter .
85I am satisfied that, if an order for provision is made, the Corio house will have to be sold unless someone other than Joanne provides the resources necessary to meet the order.
Conclusion
86This is a very difficult case. Ron’s intention that Joanne should have the house weighs very heavily in the balance. There is also a lack of direct evidence that Joanne will be able to purchase an alternative house if an order for provision is made. However, given the lack of cash resources in the estate and the self-represented status of Peter, it is not reasonable to expect expert valuations or evidence of that kind. The evidence that was available suggested that the property was worth in excess of $450,000. It is reasonable to assume that a moderate order for provision, with time to pay, will see Joanne able to maintain a roof over her head, although perhaps not in the Corio house.
87I accept that Peter is manipulative, abusive and violent. But he was also the beloved son of Ron and Mary. He was a son that they both continued to support through disability and difficult times, despite his deep character flaws. He is also a son living in quite dire financial circumstances, circumstances which contrast quite dramatically with his other siblings, even Joanne. I find that Ron owed a significant moral duty to provide for Peter in the circumstances. I find that Peter lacks capacity to provide adequately for his own proper maintenance and support. If no order for provision is made, he will now receive nothing from Ron’s estate. This is not adequate or proper provision.
88Balancing all the matters I have considered, I will order provision be made for Peter in the sum of $45,000. This is not sufficient to provide him a house – the estate is not large enough to provide this and meet the primary moral duty to Joanne. It will, however, provide him sufficient to purchase a car and gold detector and provide him a small nest egg to soften his immediate financial hardship and protect against contingencies. I will require this amount to be paid within six months, to allow time for appropriate arrangement to be made for the sale of the Corio property, if necessary. The residue of the estate, if the property is sold, should go to Joanne.
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