Tripis v Delis
[2000] NSWSC 130
•25 February 2000
CITATION: TRIPIS V DELIS [2000] NSWSC 130 FILE NUMBER(S): SC 1846/99 HEARING DATE(S): 22/02/2000 AND 23/02/2000 JUDGMENT DATE: 25 February 2000 PARTIES :
STAVROS TRIPIS v PETER DELIS (ESTATE OF THE LATE MAGDALINA TRIPIS)JUDGMENT OF: Master Macready at 1
COUNSEL : Mr M. Campbell and Miss N. Gilchrist for plaintiff
Mrs M. Lilienthal for defendantsSOLICITORS: M.F. Twemlow & Co., for plaintiff
Levy Peatman for defendants
CATCHWORDS: Family Provision. Claim under the Family Provision Act by elderly son. Attempt to advance cost of care of his child as a need for maintenance and advancement in life. Held this was not a proper claim. CASES CITED: Re Gaskett (deceased) 1947 VLR 211
Massie v Laundry ( 7.02.86)
Faucett v Ware (3.06.86)
Phillips v Quinton (31.03.88)
Basto v Basto (8.09.89)
De Winter v Johnson (CA 3.08.95)
Singer v Berghouse (1994) 181 CLR 201DECISION: Paragraph 68
- 1 -THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONMASTER MACREADY
FRIDAY 25 FEBRUARY 2000
1846/99 - STAVROS TRIPIS v PETER DELIS (ESTATE OF THE LATE MAGDALINA TRIPIS)
JUDGMENT
1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Magdalina Tripis who died on 3 June 1997. The deceased was survived by a son, the plaintiff, a daughter and that daughter's two children, who are the defendants in the matter.2 The deceased made her last will on 25 March 1996. Under that will she appointed the defendants executors. She gave legacies of $10,000 to the plaintiff and his brother Terry. Terry in fact predeceased the deceased. The residue of the estate went to the defendants in equal shares.
3 It is worth noting the terms of clause 8 of the deceased's will as this will be relevant to matters to be considered, which clause is in the following terms:
(a) I have lived with my daughter Sevasti Delis since July 1995 and she has cared for me since that time.
(b) Prior to July 1995 I spent other periods of time living with and being cared for by my said daughter.
(c) My grandchildren Peter and Magdalena have also looked after me and have assisted their mother in looking after me.
(d) I have not seen my son Stavros since June 1995 and prior to that I had not seen him since 1993.
(e) I see my son Terry more regularly than I see my son Stavros but nevertheless he does not assist in my care.
(f) I rarely see any of my grandchildren with the exception of Peter and Magdalena and none of them apart from Peter and Magdalena have ever done anything to assist me or to help in my care.
(g) My husband and I owned a property in Rhodes, Greece. That property was to have been my daughter's dowry. In the event the property was sold to pay the costs of my husband and I re-locating to Australia and was never able to be provided to my daughter and her husband for her dowry.
4 The estate comprises a property at 135 Everleigh Street, Redfern, which the parties are agreed is valued in the range of $260,000 to $280,000. There was also $12,044 in rent obtained from the property of which $6,000 has been distributed. The estate has borrowed $10,000 and paid the plaintiff's legacy. Taking this loan into account and other miscellaneous debts, expenses of the estate and selling costs of the property and conducting the hearing, $50,075 will have to be paid out. The net distributable estate will be in the range of $221,968 to $241,968.
5 If the plaintiff succeeds, the costs he has incurred will have to be taken into account and these have been estimated on a solicitor and client basis, estimated at $35,000 to $40,000. Although the house has been transferred to the defendants I am informed it is in their capacities as executors and thus questions of notional estate do not arise in respect of the property. This is important because the application by the plaintiff is out of time. It would have been necessary for him to establish special circumstances under S 28(5) if there were a claim for notional estate.
6 I will deal with some of the history of the application.
7 The plaintiff was born on 5 September 1928 and his sister born in 1932. From about 1938 when he was ten, the plaintiff started working for his father and no doubt the family, without wages. In 1943 his father was caught up in the war and was away for some time and the plaintiff and his brother Terry supported the testatrix and their sister. Eventually in 1954 the plaintiff married and he has had four children. One of those children is Magdalina, born 17 October 1955. She suffers from mental impairment and details of this will be referred to later.
8 In 1960 the plaintiff migrated to Australia and moved into rented accommodation in Arthur Street, North Sydney. He started employment at General Motors Holden as a factory hand and worked there for about twenty years. The plaintiff's parents migrated to Australia in 1962 and lived at that address without making any payment to the plaintiff, for some six months.
9 In January 1963 the plaintiff purchased a home at 14 Sheahan Street, Warwick Farm and once again his mother and father came and lived with the plaintiff for a year.
10 They purchased their own property at 135 Everleigh Street, Redfern in January 1963 and in due course they moved there.
11 By 1972 the plaintiff's daughter Magdalina who was then about 17 years old was admitted to Rydalmere Psychiatric Hospital and was there for some 12 years. In due course she then moved to group accommodation and is now at Ability Options at 11 Calida Crescent, Hassall Grove in group accommodation.12 The plaintiff's father and the husband of the deceased died in January 1985. The deceased continued to live there until she went to live with her daughter in April 1996. She was then quite old. In 1995 the plaintiff had some open heart surgery and in May 1996 the child of the deceased, Terry, died. By the end of 1996 the deceased moved to Saint Basil's Nursing Home at Lakemba and she died on 3 June 1997. Probate was granted in due course and the summons was filed on 29 March 1999.
13 As has been mentioned, the application is out of time and it is necessary for the Court to deal with the matter under S 16 of the Family Provisions Act. To allow an application to be made, notwithstanding that it is out of time, there are a number of cases referring to the principles to be applied in these matters.
14 In Re Gaskett (deceased) (1947) VLR 211 the following was said:
It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."
15 His Honour Young J has in several cases dealt with the principles governing application to extend time under this Act. In Massie v Laundry (unreported) 7 February 1986) he indicated that the factors which one looks at include the following:
(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?
17 In De Winter v Johnston, a decision of the Court of Appeal on 3 August 1995, his Honour Powell J referred to this matter and in particular to the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:
16 He also accepts apparently a view which was expressed by his Honour Needham J in Faucett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J when considering the matter at the substantive hearing lent to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989).
"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."
19 I now turn to consider the above mentioned factors:
18 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case.
(a) is the reason for making a late claim sufficient?
20 The deceased died on 3 June 1997 and time expired on 3 December 1998. The summons was filed on 29 March 1999. There is correspondence put in evidence which was written by the plaintiff's solicitors. It is apparent that in December 1997 the plaintiff arranged for his daughter and him to consult a solicitor and gave instructions to commence proceedings under the Act.21 In a letter written on 11 December 1997 the solicitors advised the defendants' solicitors that they had instructions to make a claim on behalf of the plaintiff, Magdalina and someone else, who is not of concern to this litigation. Thereafter, according to the plaintiff, he had been asked by the solicitors to prepare a statement in chronological order of all matters to support the claim, but found it difficult to do so.
22 Nothing much seems to have happened until October 1998, (still in time) when there was a letter from the solicitors to the office of the Protective Commissioner, seeking details of Magdalina's situation. It is obvious that by this time they had found out she was now under the care and control of the Protective Commissioner. In response, the Protective Commissioner in late October said they would like details to consider the claim, to see whether a claim should be brought on Magdalina's behalf. They told the solicitors not to take any action on her behalf without conferring with them. In response to that letter further information was immediately provided by the solicitors.
23 The next letter appears to be a letter of 20 January 1991 which then raises on behalf of the Protective Commissioner whether there were sufficient factors under S 9(1) of the Act to support Magdalina's claim. Thereafter a day later the solicitors wrote and said they would proceed on the father's application but it was a matter for the Protective Commission as to whether he wished to bring proceedings on behalf of Magdalina. Quite surprisingly there is no evidence given by the plaintiff’s solicitor as to the delay. 24 It was probably not until questions were asked about these factors warranting that the solicitors realised that the granddaughter Magdalina had no claim. The solicitors then had to decide whether to pursue the plaintiff's claim. Given the absence of evidence from the solicitor, it is obvious that the solicitors did not have instructions to make a claim by late 1998. I also infer that by late January 1999 they realised there was no claim available to Magdalina. They no doubt then received instructions to proceed in the claim without further delay. The explanation is not really complete or very adequate, but the delay is not great.
(b) Will the beneficiaries under the will be prejudiced if time were exceeded?
25 It is clear from the correspondence that the defendants were on notice of the proposed claim before the time expired. They have not disposed of the estate and they had the benefit of having received income from the asset during the period of time before the claim was made. Accordingly there seems to me to be no prejudice.
(c) Has there been any unconscionable conduct on the part of the other side to enter the equation?
26 There is none as disclosed in the evidence.27 Particularly given the last two matters I have referred to, I would be prepared to consider extending the time if the claim has prospects of success, so I will now turn to that matter.
28 In applications to the Family Provision Act the High Court recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must make. At P 209 it said the following: Said the following:
"the first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, among other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
29 I now turn to consider the plaintiff's position. He is 72 years of age, married with children, one of whom Magdalina is in a special institution. The others are not dependant on him.30 He and his wife own their own home and the contents at 14 Sheahan Street, Warwick Farm which is unencumbered. The value is said by the plaintiff to be $140,000 although the improvements are insured for $155,000 and the contents insured for $33,000. It is not necessary to determine the value of those items accurately for the purposes of this case.
31 They have savings of some $15,019. The plaintiff has received his legacy of $10,000 which has been given to him by the solicitors.32 As far as his health is concerned, he has had heart surgery and further investigations for prostrate cancer which have apparently, as far as the evidence is concerned, revealed nothing.
33 I turn to the relationship between the plaintiff and the deceased. It was submitted that the relationship between the plaintiff and the deceased was distant and strained and for that reason the deceased only left the plaintiff a small legacy.
34 There are also the matters referred to by the deceased in her will at 8(d) which I quoted above. The plaintiff denied these matters. There was also evidence of the plaintiff at the funeral going up to the deceased's coffin and cursing her. The plaintiff denied this. I was not impressed by the plaintiff's evidence. He had understated his income and savings in his evidence and was somewhat histrionic in the way he gave his evidence. I preferred the evidence of the defendants on this aspect.
35 From the evidence it seemed it was the deceased's daughter and the defendants who cared for the deceased in her later years and not the plaintiff.
36 The incident at the funeral and the argument (not in the presence of the deceased) at the hospital shortly before she died, probably came about because the plaintiff found out what he was to receive in her will. They are not important in assessing the history before that time. It seems to be likely that there was little contact and no assistance to the deceased in respect of the period when she was in her last years. This does not of course complete the whole picture, because there is also the contributions which the plaintiff has made to the family and the deceased as a young boy.
37 The plaintiff left school and worked for the family enterprise without wages in accordance with Greek tradition. When his father was taken away during the war between 1943 and 1946 he gave his salary to the deceased and thereafter, when his father returned, his mother still retained his salary and kept it for the family.
38 When the plaintiff moved to Australia he did the appropriate thing for a son in that situation and provided his parents with accommodation and also made available his home to them for a year. This indicates clearly in the earlier years that he was a good family member and provided for his parents when they needed help, no doubt in accordance with the appropriate traditions of his race.
39 It is now appropriate to consider the others having a claim on the deceased's bounty.
40 One is Peter Delis, the executor of the estate. He is 43 years of age, married and has two children, aged 14 and 16. He is a self-employed electrical contractor. His home is owned by him and his wife and is valued at about $650,000 with a mortgage of about $185,000. He is presently in the course of doing improvements on the house and has borrowed for that purpose. He expects it will increase the value of his home to $900,000. He has a Mitsubishi van, worth about $8,000 and his wife has a new car worth $40,000.
41 There is some superannuation, the details of which are not in evidence before me. His taxable income in 1998/1999 was $9,853 and in the previous year $11,467. This does not quite appear to be the whole story about his income, as it would not support the family, although his wife has income from her work at St Vincents Hospital of $600 to $700 per fortnight. He does not suggest in evidence that he cannot make ends meet. I would expect given his stated income and the assets he has accumulated, that he is in reasonably comfortable circumstances. As far as his relationship with the deceased is concerned, he assisted his mother in the care of the deceased in her later years and kept in contact with her. There is nothing to indicate he is other than a good grandson. He spent some $2,500 on repairs for the house at Redfern.
42 The next person is the other beneficiary and defendant, Magdalena Kandos. She is 43 years of age, is married with a 12 year old child. She is a restaurant proprietor. I thought she was quite deceptive in giving details of her assets to the Court. She not only omitted her share of the business and a property in her statement of assets and liabilities but included only her half interest in jointly owned properties while including the full amount of her and her husband's joint debts without mention of those facts. Her asset position appears to be as follows:
43 She has a half share in the Cherrybrook house worth $225,000; a half share in property at Maitland worth $220,000; her interest in the estate estimated at $110,000, a half share in shop 13 at Dural worth $162,500; a half share in shop 10 at Dural estimated at $120,000; a quarter share in the business estimated at between $50,000 to $100,000; furniture and personal effects estimated at $25,000. This is a total of between $912,500 to $962,500.
44 Half of the debts of her and her husband is $222,000. This puts her net assets position in a range of between $690,500 to $740,500. There were also additional assets in the form of shares worth some $30,000 which were not disclosed in evidence. She has use of a 1996 BMW 3181 motor vehicle. As far as income is concerned, including the gross rental income as per her oral evidence her income is $5,461 per month and her rental and living expenses are $3,309 per month. No doubt she has other commitments for repayment of loans, but clearly she is in very comfortable circumstances.
45 As far as her relationship with the deceased, like her brother, she helped her mother with the care of the deceased in her later years, especially since her father died in 1985. She has made no financial contribution to the estate.
46 The Court can only make an order in the event that the plaintiff has been left without adequate and proper provision for the plaintiff’s maintenance, education and advancement in life. It can not rewrite the will to make what a party considers to be a fair and just provision that the testator should have made.
47 Accordingly I turn to what is said by the plaintiff in respect of how he has been left without adequate and proper provision for his proper maintenance and advancement in life. In this regard I am reminded in respect of two of his claims by what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had to following to say:
"Sheller JA (Cripps JA agreeing) said:'I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum ius to do no more than act on speculation and, contrary to the prohibition contained in S 9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant.'"
48 The claims to which I am referring are (a) a claim for a new car worth about $25,000 thousand dollars and (b) a claim for an average wage of $30,000 per annum.49 As far as (a) the claim for a new car, he has a 1977 Commodore worth $1,500. He gave no evidence that he needed a new car nor any evidence of the cost of an appropriate car. Notwithstanding this total lack of evidence in the affidavit read before me there was no attempt to lead any evidence orally of these matters. It just appeared in submissions at the end of the case.
50 Given he is 72 years old and appears frail, the likelihood of him being able to handle a car must be in doubt and, given the lack of evidence, I am not satisfied that this is a genuine need.
51 Concerning (b) the claim for an average wage, this is expressed on present value to be $30,000 per annum at 5 percent for five years, totalling $126,320.91.
52 There is here again a frightening lack of evidence in this respect. There was no evidence as to firstly what is the average wage; secondly no evidence of the plaintiff's living expenses. All he said was that he received an income the correct amount of which appeared to be $308 per week being the joint pension for him and his wife.
53 Thirdly there has been no suggestion in the affidavit evidence that he is not managing on the present income although, given their present savings, there is probably room for concern.
54 Fourthly the basis as to why $30,000 is necessary is not clear. It was simply claimed in submissions. There was no reference to life tables to try to justify the five year period referred to, although the probability is that his life expectancy would be greater were it not for his medical condition.
55 Having said all that, it is a case where the only competing claims are from persons who are clearly very comfortably off, those being grandchildren rather than children of the deceased. I certainly am of the view that some amount is appropriate as the plaintiff should not have to live on the pension alone. To use the words of Bryson J in Gordon v Parks (1982) 17 NSWLR 1, it is a case where the plaintiff perhaps is entitled to receive a little of the cheese and jam rather than just the bread and butter of life.
56 The other claims put forward are in a different category and relate to the plaintiff's daughter Magdalena. She presently is 44 years of age. She stopped going to school at the age of eight years and was placed in psychiatric care in her late teens. She has a moderate intellectual disability and significant defects in her personal life, lacking community and living skills. She has great trouble with communication from time to time, she displays maladaptive behaviour. She needs extensive supervision. Her affairs are managed by the Protective Commissioner.
57 She is has funds of $40,742 with that office and receives an allowance of $125 per week for miscellaneous items. She does in fact receive a disability pension which is collected by the Protective Commissioner which is no doubt why the funds have built up over the years.
58 She lives in a supervised group home and spends two weeks of every month living with the plaintiff and her mother. She certainly looks forward to spending these two weeks with the plaintiff and her mother. There was evidence given by a former carer to the effect that her psychiatrist had a view that this was advantageous for her. Given the evidence of her reaction it is fairly self evident.
59 The other point is that if these two weeks at the parents' place cannot be provided in the future, she can still live full time in her group situation. There is no suggestion that she will not be entitled to supervised full time care in the future.
60 Clearly the plaintiff wishes to continue the arrangement for his daughter to come and spend two weeks each month with him and his wife and it is appropriate that she do so. Some minor work is needed at the plaintiff's home to improve the bathroom and provide hand railings. This is necessary because Magdalena is now a person who takes a size 18 to 20 dress size. She has difficulty walking because of her weight which has increased because of medical complications in recent years. The improvements consist of railings and equipment for the temperature control of water in the bathroom in the order of $950 to $1050. However, the plaintiff gave evidence also that he wants to renovate the bathroom at a cost of $10,000. This is probably a genuine desire on his part because Magdalena has in recent years fallen in the bathroom and broken her leg trying to get out of the bath.
61 I think it is appropriate that I accept this modest claim. The plaintiff will have some benefit from it. It will increase his daughter's safety at home and he says this will be of assistance to his daughter to whom he quite properly feels he owes a moral obligation.
62 There are two other areas advanced on behalf of Magdalena. The first is an amount for personal care items, such as sheets, at about $1,177.15. As far as they are concerned it is obvious she has sufficient funds herself to meet those needs and therefore this is not an appropriate claim.
63 The other claim is the claim for personal care of Magdalena for five years, totalling $141,030. This is based on the cost of the care if it were provided by a carer in the two week period when the plaintiff and his wife care for her. It is based on the value in the market place of such care. The basis on which this claim is propounded is not spelt out in the evidence. Once again it was put during submissions. It is not clear whether it was thought to be during the lifetime of the plaintiff and his wife or after their death in the event they die before Magdalena.
64 In the absence of any relevant evidence it would be inappropriate to accede to the claim but there is a more fundamental objection that this is a claim by Magdalena and not by the plaintiff. This became apparent if one considers the situation of the plaintiff predeceasing Magdalena.
65 The evidence which has been read before me essentially does not establish factors warranting under S 9(1) in respect of Magdalena and that is no doubt the reason why her own case did not proceed.
66 I consider that it is not appropriate to try to recover something specifically for Magdalena's benefit by virtue of a claim by the father.
67 As I do propose to recognise some claim it follows that there are prospects for success and therefore the time should be extended. 68 Accordingly I make the following orders:
(1) I extend the time for the making of the claim up to the date of filing of the summons herein;(2) in lieu of a legacy for the plaintiff of $10,000, I give him a legacy of $75,000;
(3) plaintiff's costs on a party and party basis and the defendants’ on an indemnity basis be paid or retained out of the estate of the deceased;
(4) I order the exhibits be returned.
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