Tyson v Walden

[2010] NSWSC 873

CITATION:	Tyson v Walden [2010] NSWSC 873
HEARING DATE(S):	4 August 2010
JUDGMENT DATE :	4 August 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	4 August 2010
DECISION:	Provision made out of the estate.
CATCHWORDS:	EQUITY – SUCCESSION – Family provision – eligible person – whether testator failed to make adequate provision for the Plaintiff having regard to the Plaintiff’s circumstances.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) – s 9(3)
CATEGORY:	Principal judgment
PARTIES:	Denise Robyn Tyson (Plaintiff) Mary Yvonne Walden (Defendant)
FILE NUMBER(S):	SC 2009/288359
COUNSEL:	In person (Plaintiff) P.S.L. Dooley (Defendant)
SOLICITORS:	In person (Plaintiff) F.W. Ewart & Ewart (Defendant)

2009/288359 Tyson v Walden

JUDGMENT – Ex tempore

4 August, 2010

1 The Plaintiff brings a claim under the Family Provision Act 1982 (NSW) for provision under the estate of her mother who died in August 2008, aged 93 years, leaving a will dated 11 August 1999. The will made no provision at all for the Plaintiff. The whole of the estate is left to the Defendant, who is the deceased's daughter. The Defendant is the sole executrix of the will.

2 The deceased was married in 1941. She had three children: the Plaintiff, born in 1942, a daughter, Heather, born in 1944, and the Defendant, born in 1947. The deceased's husband died in January 2002.

3 The estate is relatively small. It consists principally of three parcels of land, namely, a residential property at Toongabbie valued at about $340,000, a vacant parcel of land at Winston Hills valued at about 430,000 and another vacant parcel of land at Berkeley Vale valued at about $225,000. There are other items of jewellery, furniture and cash. The estate has liabilities of about $300,000 so that the present net value of the estate is about $695,000. The Defendant's legal costs are estimated at about $60,000. The Plaintiff now appears for herself, her solicitors having filed a Notice of Ceasing to Act. She says she has paid them some $16,000 in costs.

4 Notice of these proceedings has been given to the deceased's third daughter, Heather, but she has made no claim against the estate.

5 The circumstances of the Plaintiff are as follows. She is now 68 years old, she has four adult children who are not dependent on her, she is divorced and living alone. The Plaintiff's health is not good. She had a severe stroke in November 2008 and spent a month in hospital. She is on continuing medication. As a result of the stroke she suffers from some short-term memory loss, as is clear from the way in which she gave her evidence.

6 As part of the Plaintiff's divorce settlement in 1992, she received the matrimonial home at Wahroonga. She sold that property for $740,000 in 2008 and out of the proceeds she purchased a home unit at Elanora Heights for $630,000. That property is unencumbered. She says that because of problems in the home unit building, that unit is now worth about $590,000. In addition, the Plaintiff has about $41,000 in cash on a short term deposit on which she receives interest. She has no other substantial assets. She receives a pension of $670 per fortnight. Her fortnightly living expenses are about $900. The shortfall between expenses and income is eating into her capital.

7 The Defendant has not adduced any evidence of her financial circumstances. She does not put forward any affirmative case of need for provision out of the deceased's estate. In this regard it is pertinent to note that in 2002, after the deceased had made her will, she transferred to the Defendant for no consideration a parcel of land in Seven Hills valued at $225,000 at least.

8 The Defendant does not put forward a case that the Plaintiff's conduct towards the deceased during her lifetime disentitled the Plaintiff from any testamentary consideration at all by the deceased, although the Defendant emphasises that she and her husband were principally responsible for looking after the deceased in her old age. The deceased herself fully acknowledged the debt that she owed to the Defendant and her husband, referring to her gratitude to them for what they had done to her, not only in a document which is in evidence, but also in her will, giving the obligation which she owed to the Defendant and her husband as the reason for making provision for them alone out of her estate to the exclusion of her other children.

9 The Defendant's case is simply that the Plaintiff has not demonstrated that she has been left without any adequate provision for her proper maintenance, so that the deceased's will should not be disturbed.

10 The first question for the Court is whether the Plaintiff, who has received nothing out of the deceased's will, has been left without adequate provision for her proper maintenance. To answer that question the Court has regard to the Plaintiff's financial position, the size and the nature of the deceased's estate, the relationship between the deceased and the Plaintiff and the deceased's relationship to others having a legitimate claim on her testamentary value.

11 Of particular importance in the present case is the Plaintiff's evidence relating to one of the parcels of land forming part of the deceased's estate, namely, the property which is vacant land at Winston Hills now valued at $430,000. This property was first acquired in 1965.

12 The Plaintiff says that her family was very poor and that she had to go to work as soon as she could. She has given clear and persuasive evidence, which I accept, that she would give all of her weekly wages to the deceased who would then give her a small allowance. After some years, the Plaintiff says, the Winston Hills land was purchased from the money saved from the Plaintiff's wages, a deposit of £250 being paid and the balance of the purchase price, namely, £1,750, being borrowed on mortgage. The Plaintiff says that the mortgage payments were repaid at the rate of £3 per week and that that money must have come from the money which she weekly gave her mother.

13 The Plaintiff married in 1965 but she separated from her husband in 1970. The Plaintiff says that she then transferred the Winston Hills property to her parents for no consideration, even though the memorandum of transfer shows a purchase price of $3,700 having been received by the Plaintiff. The Plaintiff says that this transaction was effected for no consideration so that her husband would get no benefit from the Winston Hills property in the course of the divorce settlement. The Plaintiff says, quite frankly, that the transfer of the land to her parents for no consideration was a device to cheat her husband and that the land was always regarded by her, and by her parents, as beneficially hers. The Plaintiff says that the land was never re-transferred to her by her parents because her divorce proceedings were long and bitter and the land remained vacant in any event and was not required for sale or development.

14 This evidence is contradicted by the Defendant. She says that she was present at discussions between the Plaintiff and the deceased in 1965 when the deceased agreed to contribute half, or perhaps the whole, of the purchase price of the Winston Hills land in order to assist the Plaintiff and her husband to buy a home at Wahroonga.

15 The Defendant has not been cross examined. Nevertheless, I prefer the evidence of the Plaintiff. First, although her short-term memory loss rendered much of her evidence as to her present circumstances confused and vague, the Plaintiff's evidence was clear and vivid as to how the acquisition of the Winston Hills land had occurred and how the purchase price for that property had been provided.

16 Second, the evidence of the Defendant, to the contrary, is very vague as to the alleged discussions – understandably so, as the Defendant was about seventeen years old at the time.

17 Third, the fact that the land was registered in the name of the Plaintiff alone corroborates the Plaintiff's evidence.

18 Fourth, the supposed contribution by the deceased to the purchase price of the Winston Hills land occurred in 1965, according to the Defendant, yet the transfer to the Plaintiff's parents was executed only in 1970. The discrepancy is not explained by the Defendant's evidence but the date of the transfer is consistent with the Plaintiff's version of events.

19 In short, I am satisfied that the Winston Hills land, which is presently part of the deceased's estate, was purchased principally with money provided by the Plaintiff. It may be that the deceased provided some money at some time towards the acquisition or mortgage repayments, but I am satisfied that the bulk of the purchase price, and the contributions to the mortgage instalments, came from the Plaintiff, as was recognised by the fact that the land was registered in her name alone.

20 By s 9(3)(a) of the Family Provision Act, the Court, in determining whether an applicant has been left without adequate provision, may have regard to the financial contribution made by the applicant to the deceased's estate. In my opinion, the deceased had a moral obligation to the Plaintiff in exercising her testamentary discretion to recognise that the Winston Hills land had been acquired essentially with the Plaintiff's money.

21 It is true, as the Defendant says, that the Plaintiff is not in financial difficulties – at least not immediately so. She has a secure home, but she has very little else as a buffer against the vicissitudes of life, particularly in light of her medical condition. Further, she has no financial resources for any of the pleasures of life such as visiting those of her children who live overseas.

22 Bearing in mind the Plaintiff's financial circumstances and her medical condition, the fact that it was her contributions which led to the acquisition of the Winston Hills land as an asset of the deceased's estate, and the fact that the Defendant has put forward no case of need for provision out of the estate for herself, I consider that the Plaintiff has been left without adequate provision. I turn now to what is the appropriate provision to make for the Plaintiff.

23 Provision out of the estate of a deceased person under the Act is not, of course, limited in all cases to providing the applicant merely with the minimal requirements for survival. All of the circumstances are to be taken into account. In this case the appropriate provision should reflect the contribution made by the Plaintiff to the value of the deceased's estate.

24 Accordingly, I conclude that the Plaintiff should receive provision from the estate of the deceased in the form of a bequest of the Winston Hills land. I will hear the parties as to costs.

25 I order that the Plaintiff's costs of the proceedings, which are agreed at $16,000, be paid out of the estate.

– oOo –