Vanderputt v Vanderputt

[1999] NSWSC 1256

CITATION:	Vanderputt v Vanderputt [1999] NSWSC 1256
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4655/97
HEARING DATE(S):	18, 19 and 22 November 1999
JUDGMENT DATE:	17 December 1999
PARTIES :	Judith Astrid Vanderputt (P1) Cynthia Margarite Vanderputt (P2) Roudolph Finlay C. Vanderputt (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr M.S. Willmott (P) Mr R. F. C. Vanderputt (defendant in person)
SOLICITORS:	Eric Butler Solicitors (P)
CATCHWORDS:	Family Provision; Claim by two adult daughters; Entirety of estate left to defendant; Relationships between testator and her children; Financial and material circumstances of plaintiffs; Present needs of plaintiffs; Defendant conducted hearing in person; No evidence of defendant's financial circumstances; Little evidence of his material circumstances; Competing claim of defendant; Statements made by testator in her will.
ACTS CITED:	Family Provision Act 1982
DECISION:	1. I order that the plaintiff Judith Astrid Vanderputt receive out of the estate of the late Ruth Merlyn Vanderputt ("the deceased") a legacy in the sum of $85,000, and that the plaintiff Cynthia Vanderputt receive out of the estate of the deceased a legacy in the sum of $45,000, each such legacy not to bear interest if paid on or before 17 March 2000, and if not so paid to bear interest at Supreme Court rates; 2. I order that the costs of the plaintiffs on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased; 3. The exhibits may be returned.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 17 December 1999

4655/97 JUDITH ASTRID VANDERPUTT AND CYNTHIA VANDERPUTT -v- ROUDOLPH FINLAY C. VANDERPUTT JUDGMENT 1    MASTER These are proceedings under the Family Provision Act 1982. 2 By summons filed on 6 November 1997 the plaintiffs Judith Astrid Vanderputt and Cynthia Vanderputt each claim an order for provision for her maintenance, education and advancement in life out of the estate or the notional estate of their mother, the late Ruth Merlyn Vanderputt (to whom I shall refer as “the deceased”). 3 The deceased died on 11 August 1997, aged 86 years. She left a will dated 18 May 1997, probate whereof was on 19 September 1997 granted to her son, Roudolph Finlay C. Vanderputt, the executor named in such will (who is the defendant in the present proceedings). By that will the deceased left the entirety of her estate to the defendant. 4 The defendant (who was born on 18 January 1930 and is presently aged 69) is the eldest of the eight children of the deceased, all but one of whom survived the deceased (her only other son having died in 1987). Only the two youngest children, Judith and Cynthia, are making a claim against the estate of their mother. 5 The significant asset in the estate is a house property situate at and known as 1 Brooker Avenue, Oatlands (also referred to and apparently previously known as 15 Bettington Road, Oatlands), to which a value of $175,000 was ascribed in the Inventory of Property. The other assets disclosed in the Inventory of Property are furniture ($1,000) and moneys held by the Protective Commissioner ($20,539). 6 A considerable degree of animus was manifested between the plaintiffs and the defendant, at least on the part of the plaintiffs towards their brother. A very substantial part of the plaintiffs’ evidence appeared to be directed to the way in which, so it was asserted by them, the defendant had treated the deceased, with whom he lived substantially for most his adult life. 7 Much of the evidence of the plaintiffs was directed to establishing that the will which was admitted to probate was somehow brought about as a result of undue influence (or, possibly, coercion) exercised by the defendant upon his mother. The second plaintiff even went so far as to assert that the defendant had forged all wills that purported to have been executed by the deceased. However, no attempt has been made by either the plaintiffs or any of the other children of the deceased to challenge the validity of the will which was admitted to probate. Indeed, Counsel for the plaintiffs expressly stated that a conscious decision had been made by the plaintiffs not to contest its validity. Accordingly, I consider the entirety of the evidence concerning the foregoing allegations relating to the preparation and execution of the will to be totally irrelevant to the present proceedings. 8 Similarly, I do not consider to be of relevance or significance the assertions which the plaintiffs made relating to alleged ill-treatment of the deceased by the defendant. It must be recognised that, whatever might be the perception of the plaintiffs concerning the relationship between their brother and their mother, he was the sole object of the testamentary beneficence of the deceased. 9 I have already referred to the fact that one of the assets of the estate disclosed in the Inventory of Property was moneys held by the Protective Commissioner. The involvement of the Protective Commissioner in the affairs of the deceased was in consequence of a Management Order under the Protected Estates Act 1983 which was made by the Guardianship Board on 9 June 1994. That order was in the following terms:

The BOARD being satisfied that Mrs Ruth Van Der Putt is not capable of managing her affairs ORDERS THAT: ---
1. The estate of Mrs Van Der Putt be subject to management under the Protected Estates Act , 1983.
2. The management of Mrs Van Der Putt’s estate be committed to the Protective Commissioner.

10 There was admitted into evidence (as annexure B to the affidavit of Joan Helen Hanna sworn 7 April 1999) that Management Order and the Reasons for Decision of the Guardianship Board for the making of the order. 11 Despite the considerable quantity of evidence concerning the personal relationships between the deceased and her children and concerning the matters referred to in the Reasons for Decision of the Guardianship Board, it seems to me, however, that these proceedings are to be decided essentially on the issues of the financial and material circumstances of the respective parties. 12 The first plaintiff, Judith, was born on 29 November 1949, and is presently aged fifty. She is the youngest child of the deceased. She left school when she was aged sixteen, without being able to read or write. According to her she remains illiterate, although apparently she attends remedial classes at work. For a period, when aged in her late teens, Judith lived in a de facto relationship, and gave birth to a daughter, but she has never married. The deceased obtained sole custody of Judith’s daughter when the child was aged three. Judith worked, apparently part-time, whilst her daughter was a child. Since 1985 she has been in full-time employment, firstly in a factory, and latterly, since 1990 as a cleaner with the State Rail Authority, at Asquith. In that position her net wage is $700 a fortnight. 13 Judith suffers from anorexia and blood pressure, for which she receives medical treatment. 14 Judith lives in extremely modest circumstances and maintains a very frugal lifestyle. Since 1998 she has been residing in rented accommodation at Umina, which she describes as being small and uncomfortable. She actually shares a room with another lady in a house where she also has to share kitchen and bathroom facilities. In order to be at work at Asquith by 7:00am it is necessary for Judith to arise at 4:30am, and travel on foot, by bus, by train and again on foot, to reach her place of employ. She normally does not return home until about 6:30 or 6:45pm. 15 Apart from her wages Judith has no other income. She has no assets other than her clothing. For her accommodation she pays $85 a week. Other details of her expenses are set forth in her affidavit of 28 September 1999. 16 It is the desire of Judith that she should be enabled to purchase a small home unit or villa on the Central Coast, close to transport, where she could live independently and on her own. Inquiries by her solicitor, Mr Butler, disclosed that such accommodation would from cost from $123,000 (one bedroom unit) to $170,000 or more (two or three bedroom units). 17 In addition, Judith requires, as a matter of urgency, to purchase necessary and basic items of household equipment, such as a bed, table and chairs, lounge, refrigerator, washing machine. The evidence discloses that an amount of $5,000 would be required for those purchases. 18 The second plaintiff, Cynthia, was born on 27 March 1944, and is presently aged fifty-five. She is the second youngest child of the deceased. 19 Cynthia also left school aged sixteen, without being able to read or write, and asserts that she remains illiterate. 20 After leaving school Cynthia supported herself in employment, in factories, kitchens and the like. Cynthia left home in March 1986 and moved into her present residence at 13 Araluen Avenue, St Marys. She said that the deceased organised the purchase of that house for her by using the moneys which Cynthia had saved from her earnings, together with a loan (secured by mortgage) from the Commonwealth Bank. Cynthia has remained in residence in that house property to the present time. 21 Cynthia has been in ill-health since 1980. She suffers from diabetes, heart disease, disease of the nervous system, stress, depression and asthma. She takes various medications for those conditions. She has also recently been diagnosed as suffering from a cataract on her right eye. 22 Cynthia’s sole income consists of a disability pension in a net amount of $8,640 a year. She has been an invalid pensioner since about 1987. 23 In July 1999 Cynthia received the sum of $10,000 by way of a superannuation payment. (The evidence did not disclose the precise source of that payment.) She used that payment to discharge the indebtedness under her mortgage ($8,000) and to pay for repairs ($2,000) to her house property, which is in a very dilapidated condition. 24 Apart from her house (to which was ascribed a value of $40,000, representing, essentially, its land value) Cynthia’s only assets consist of some aged furniture and her personal effects, and an account with the State Bank ($2,665). She has no liabilities. Details of her current annual expenses are set forth in her affidavit of 28 September 1999. 25 Evidence was placed before the Court concerning the considerable degree of dereliction of Cynthia’s house property. Although there was evidence concerning the cost of demolition and rebuilding upon her property at 13 Araluen Avenue, St Marys (the total cost of such works being estimated at $100,000), Cynthia in her oral evidence said that she was happy in her house, that she was not interested in selling and that she just wanted to stay where she was. 26 I should here observe that Cynthia, who in her oral evidence manifested extreme detestation (not to say hatred) for her brother the defendant, did not attract the sympathy of the Court. She was unwilling to answer questions properly asked of her in cross-examination, and her response to a number of those questions was of the nature “None of your business” or “None of your business what I do”. Her evidence was given in an extremely vehement fashion. The vehemence was directed, however, against her brother the defendant, and not towards advancing her own claim. She charged the defendant with pestering, attacking and threatening her, and asserted that he was the cause of her ill health. 27 The claims of each plaintiff must be approached in the context of any competing claims upon the testamentary bounty of the deceased. None of the other children of the deceased, apart from the two plaintiffs, has made any claim against the estate of the deceased. The defendant did not comply with the requirements of Part 77 rule 59 of the Supreme Court Rules, in that he did not make an affidavit setting forth the various matters referred to in subrule (1) thereof. Neither did he comply with the requirements of Part 77 rule 63(1), in that he did not serve a notice of claim on each of the other children of the deceased. Nevertheless, three of those other children (Joan Helen Hanna, Audrey Winsbury and Therese Corner) swore affidavits which were filed on behalf of the plaintiffs. Thus the only relevant competing claim is that of the defendant, who is the chosen object of the testamentary beneficence of the deceased, to the exclusion of all other persons. 28 It is not necessary for the defendant to prove anything. However, if he is to be heard to resist the claim of the plaintiffs upon the ground that his financial and material circumstances are such that any order for provision an entitlement to which either or both of the plaintiffs might otherwise have established should be reduced, or even extinguished, any such submission must be made upon the basis of evidence. The defendant (who, as I have already observed, appeared for himself at the hearing; although represented by a solicitor at the earlier stages of the proceedings, he has represented himself at least since July 1999) did not place before the Court any evidence concerning his financial circumstances. In particular, he did not place before the Court any evidence concerning his assets and liabilities, income and expenditure. Neither did he at the hearing of the substantive claims of the plaintiffs offer any evidence relating to his health or medical condition. (I note, however, that such evidence was placed before the Court in support of an application for an adjournment which was successfully made by the defendant on 28 September 1999: see my judgment of that date.) 29 It emerged from the evidence, however, that the defendant owns a house property at 68 Main Road, Turnbridge in Tasmania. According to the defendant he paid $30,000 for that property, which he acquired in December 1993. Further, the structure on that property is, according to the defendant, of an extremely basic nature, and is suitable only for use as a storage place for various possessions of the defendant. In this latter regard, however, it emerged that the defendant had resided in that residential property, from 1993 to 1995, and had, indeed, been joined there by the deceased for a period of about five months, from March to August 1995. 30 In those circumstances, it is difficult to accept the evidence of the defendant that the property in Tasmania is not suitable for human habitation. That assertion by the defendant is also inconsistent with the valuation obtained by the plaintiffs (annexure C to the affidavit of Eric Richard Leslie Butler sworn 27 September 1999), being a valuation of R. L. Jones, a certified practising valuer, of Launceston, who valued the property at $40,000. It should, however, be noted that that valuation was undertaken without an internal inspection, since the valuer had been unable to gain access to the property. 31 According to his evidence the defendant has not been in employment since 1973 or 1974. Although he appears to have pursued some form of tertiary studies since that time, essentially, according his evidence, the defendant devoted almost the entirety of his life in the period from when he ceased employment until the death of the deceased in being the principal carer for his mother. I have already recorded that, apart from the period whilst he was residing in Tasmania in 1993 - 1995, the defendant was residing substantially with the deceased in the Oatlands property. 32 That house property has now been transmitted into the name of the defendant. Since the death of the deceased he has been residing there alone. He described that property as having been his home for nearly thirty years. According to a valuation obtained by the plaintiffs, the house property has a present value of $275,000, whilst a market appraisal suggests a value of between $320,000 - $330,000. 33 Although there was no specific or precise evidence proffered by the defendant concerning his income or the source thereof, the form of some of the questions asked by him in cross-examination of various deponents of affidavits filed on behalf of the plaintiffs suggested that the defendant was in receipt of some form of a pension. There was, however, no evidence concerning the nature or amount of any such pension received by the defendant. 34 Apart from the evidence to which I have just referred, and the evidence concerning the property in Tasmania, the defendant has not seen fit to place before the Court any evidence concerning his financial and material circumstances. In consequence, the Court is entitled to proceed upon the basis that those circumstances are not such as would have the effect of reducing, or even extinguishing, any order for provision an entitlement to which either or both of the plaintiffs might otherwise have established. 35 The Court must still, however, recognise that the defendant is the sole object of the testamentary beneficence of the deceased. That is a relevant fact which is not open to challenge in the present proceedings. 36 The gift of the entirety of her estate to the defendant was made by the deceased in clause 3 of her will, as follows:

After payment of all my just debts funeral and testamentary expenses including duties both Federal and State on the whole of my real and personal estate I MAKE the following GIFTS, BEQUESTS and DEVISES all of my real and personal estate of whatsoever time and wheresoever situate unto my son the said ROUDOLPH FINLAY C. VANDERPUTT ABSOLUTELY, because of the natural love and affection shown to me by my son who has resided with me giving me care and comfort and devotion in my years of greatest need. Because similar Wills on 15th March 1991 13 August 1993 18 January 1994 are still missing and I still reject that 22nd June 1993 Will my daughters Joan and Therese had organised with the Board and Public Trustee to suit themselves let there be no doubt that I leave to my darling boy Finlay whom I trust solely the heavy job to decide and do what is best and that is my final wish. God bless him.

37 Not only does the foregoing clause constitute the dispository provisions of the will of the deceased. It also constitutes a statement made by the deceased, which, consequent upon the provisions of section 32(2) of the Family Provision Act, is admissible as evidence of the facts stated therein. 38 The defendant in the course of his cross-examination of the plaintiffs, and also in his submissions, suggested that he would be prepared for one or other of the plaintiffs to reside with him in the house property at Oatlands, which he said he wanted to be a “haven” for all his sisters. However, the personal relations obtaining between each of the plaintiffs with the defendant are such as to make such a proposal totally unrealistic. Both the foregoing proposal and evidence describing the house itself suggested that it was a commodious residence more than adequate for the accommodation of a single person. 39 Each of the plaintiffs, as a child of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each plaintiff is an eligible person in relation to the deceased. As such, each plaintiff has the standing to bring the present proceedings. It will be appreciated that the defendant also, as a child of the deceased, is an eligible person in relation to the deceased, under the same paragraph of that definition. 40    I am satisfied that each of the plaintiffs has been left without adequate provision for her proper maintenance and advancement in life out of the estate of her late mother. I am satisfied that Judith has established an entitlement to receive out of the estate a legacy in an amount sufficient to enable her to acquire a modest residence of the nature which she desires in the Central Coast area, together with an amount of $5,000 in order to purchase necessary and basic items of furniture and household equipment. 41    The inquiries of Judith’s solicitor, Mr Butler, disclosed that she would be able to obtain a housing loan of about $40,000 or $50,000. A modest home unit or villa in the location desired by Cynthia would cost no less than $120,000. Since she would be able to obtain a mortgage of about $40,000 or $50,000, it seems to me appropriate that for the purposes of accommodation she should receive from the estate of her mother an amount of $80,000. To that sum should be added an additional $5,000 for the purchase of necessary and basic items of furniture and household equipment of the nature to which I have already referred. Accordingly, I propose to order that Judith receive from the estate of the deceased a legacy in the sum of $85,000. 42    I am satisfied that Cynthia has established an entitlement to receive from the estate of the deceased a legacy in an amount sufficient to enable her to effect essential repairs and restoration work to her residence (costing about $40,000), together with an amount of $5,000, for the acquisition of urgently needed furniture and furnishings. Accordingly, I propose to order that she receive from the estate of the deceased a legacy in the sum of $45,000. 43    In the light of the valuation of the Oatlands house property any sale thereof which may be the practical consequence of my orders herein will not of necessity result in the defendant being left without means to acquire other accommodation. 44    Each of the plaintiffs has succeeded in obtaining an order for provision for her maintenance out of the estate of the deceased. The plaintiffs will in consequence be entitled to an order that their costs be paid out of the estate. Their solicitor has estimated that those costs will total $40,000. The defendant also, as executor, will be entitled to an order that he receive his costs out of the estate, although the practical benefit any such order may be doubtful. 45    Since the practical consequence of the foregoing orders for provision for the plaintiffs, and for costs, is that, the defendant (unless he has assets of which the Court is not aware) must sell the Oatlands house property, I consider that it is proper that the foregoing legacies not bear interest for a period of at least three months from the date of my orders. 46    Accordingly, I make the following orders:

1. I order that the plaintiff Judith Astrid Vanderputt receive out of the estate of the late Ruth Merlyn Vanderputt (“the deceased”) a legacy in the sum of $85,000, and that the plaintiff Cynthia Vanderputt receive out of the estate of the deceased a legacy in the sum of $45,000, each such legacy not to bear interest if paid on or before 17 March 2000, and if not so paid to bear interest at Supreme Court rates.

2. I order that the costs of the plaintiffs on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased.

3. The exhibits may be returned.

**********

Last Modified: 06/30/2000