Walton v Lehmann

[2005] NSWSC 251

CITATION:	Walton v Lehmann [2005] NSWSC 251
HEARING DATE(S):	28 and 29 October 2004 and 13 December 2004
JUDGMENT DATE :	30 March 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	4298 of 2003 Vincent Royce Walton v Mark Kenneth Lehmann (1). I order that the Plaintiff receive from the estate of the late Victor Carl Walton ("the Deceased") a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 30 April 2005, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. (2). I order that the balance of the relief sought in the further amended summons be stood over generally, with liberty to restore on seven days' notice. (3). I order that the costs of the Plaintiff on the party and party basis in respect to his claim under the Family Provision Act and the costs of the Defendant on the indemnity basis in respect to such claim be paid out of the estate of the Deceased. (4). The exhibits may be returned. 5813 of 2003 Renae Kristin Walton and Ors v Mark Kenneth Lehmann (1). I order that the Plaintiff Renae Kristin Walton receive from the estate of the late Victor Carl Walton ("the Deceased") a legacy in the sum of $60,000, such legacy not to bear interest if paid on or before 30 April 2005, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. (2). I order that the claims of the Plaintiffs Bradley Adam Walton and Matthew Scott Walton under the Family Provision Act 1982 be dismissed. (3). I order that the balance of the relief sought in the further amended summons be stood over generally, with liberty to restore on seven days' notice. (4). I order that the costs of the Plaintiff Renae Kristin Walton on the party and party basis in respect to her claim under the Family Provision Act and the costs of the Defendant on the indemnity basis in respect to such claim and in respect to the claims of the other Plaintiffs under the Family Provision Act be paid out of the estate of the Deceased, and that there be no other order relating to the costs in respect to the claims of the other Plaintiffs under the Family Provision Act. (5). I reserve to the Plaintiffs Bradley Adam Walton and Matthew Scott Walton and to the Defendant liberty to apply within fourteen days of the date hereof for a variation of the foregoing order in respect to the costs of the claims of those Plaintiffs. (6). The exhibits may be returned.

CATCHWORDS:	Succession. Family provision. Claims by four adult children. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his or her proper maintenance.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Vincent Royce Walton (Plaintiff 4298 of 2003) Renae Kristin Walton (Plaintiff 5813 of 2003) Bradley Adam Walton (Plaintiff 5813 of 2003) Matthew Scott Walton (Plaintiff 5813 of 2003) Mark Kenneth Lehmann (Defendant 4298 of 2003 and 5813 of 2003)
FILE NUMBER(S):	SC 4298 of 2003; 5813 of 2003
COUNSEL:	Mr. J. Drummond (Plaintiff 4298 of 2003) Mr. J. Wilcher (Plaintiffs 5813 of 2003) Mr. G. Sirtes (Defendant 4298 of 2003 and 5813 of 2003)
SOLICITORS:	Miller Noyce (Plaintiff 4298 of 2003) Patrick Timbs & Company (Plaintiffs 5813 of 2003) Cara Marasco & Company (Defendant 4298 of 2003 and 5813 of 2003)

LOWER COURT JURISDICTION:

- 29 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 30 March 2005

4298/03 VINCENT ROYCE WALTON –v- MARK KENNETH LEHMANN

5813/03 RENAE KRISTIN WALTON and Ors –v- MARK KENNETH LEHMANN

JUDGMENT

1 MASTER: These two proceedings were instituted respectively by summons 4298 of 2003 and by summons 5813 of 2003.

2 By the former summons, filed on 12 August 2003, Vincent Royce Walton claims an order for provision for his maintenance, education and advancement in life out of the estate of his late father Victor Carl Walton (to whom I shall refer as “the Deceased”).

3 By the latter summons, filed on 18 November 2003, Renae Kristin Walton, Bradley Adam Walton and Matthew Scott Walton each claims an order for provision for her or his maintenance, education and advancement in life out of the estate of the Deceased. Each of those Plaintiffs is a child of the Deceased.

4 The Deceased died between 14 and 17 February 2003, aged 56 years. He left a will dated 5 September 2000, probate whereof was on 5 September 2003 granted to Mark Kenneth Lehmann, the substituted executor named in such will (the institued executor named therein, Robyn Joan Walton, having predeceased the testator). Mark Kenneth Lehmann is the Defendant to each of the present proceedings. By that will and in the events which have happened, the Deceased left the entirety of his estate, after payment of debts, funeral and testamentary expenses, to Mark Kenneth Lehmann and Kurt John Lehmann as tenants in common in equal shares.

5 The inventory of property discloses the following assets owned by the Deceased:

Real property situate at and known as 201/168 Queenscliff Road, Queenscliff, having an estimated value of $600,000.

Moneys in banks or financial institutions, totalling $3,681.

Furniture, jewellery, and personal effects, having an estimated value of $10,000.

Refund from Australian Taxation Office, $274.

Shareholding in Vic Walton Motors Pty Limited, having an estimated value of $30,000.

BMW motor vehicle, having an estimated value of $36,455.

Cash held by solicitor, $505.

Entitlement under superannuation policy with Tower Superannuation Pty Limited, having an estimated value of $48,100.

6 The Deceased had been married three times. Of his first marriage, to Diane Alma were born three children, being the Plaintiffs in proceedings 5183 of 2003, Renae Kristin Walton (who was born on 13 July 1976 and who is presently aged 28 years), Bradley Adam Walton (who was born on 24 May 1970 and is presently aged 34 years) and Matthew Scott Walton (who was born on 13 February 1973 and who is presently aged 32 years). That marriage terminated in divorce in 1981.

7 On 17 January 1981 the Deceased married his second wife, Juliana Gertrude. Of that marriage was born only one child, Vincent Royce, the Plaintiff in 4298 of 2003 (who was born on 27 January 1981 and who is presently aged 24 years). Mrs Juliana Walton had previously been married and has a son, Michael Brown (who is presently aged in his late thirties).

8 The Deceased’s marriage to Mrs Juliana Walton broke down in March 1987, and they were subsequently divorced. The date of the Deceased’s marriage to his third wife Robyn Joan does not emerge with precision from the evidence, but would appear to have been in the late 1980s or early 1990s. Mrs Robyn Walton died on 11 May 2002. No children were born to the marriage of the Deceased and Mrs Robyn Walton. However, she had children from a previous marriage, including Mark Lehmann and Kurt Lehmann, the beneficiaries named in the will of the Deceased.

9 According to the affidavit of the Defendant sworn on 27 April 2004, the approximate value of the net distributable estate was at that time in the order of $246,521. That figure was calculated after making allowance for liabilities of the Deceased at the time of his death and for various costs and expenses associated with the administration of the estate and the conduct of the present proceedings.

10 Provision was also made in that calculation for the payment of various liabilities associated with a florist business conducted by the Deceased, known as the Robyn’s Nest, at the Allambie Heights Shopping Centre (those liabilities totalling in excess of $76,000).

11 I have already in the reasons for judgment delivered by me on 13 December 2004, regarding the application by the Plaintiffs for leave to file a further amended summons in each matter, adverted to the complaint of the Plaintiffs that the Defendant had improperly paid from the assets of the estate of the Deceased the foregoing amounts which were liabilities not of the Deceased himself but of a company, Vic Walton Motors Pty Limited, which was the vehicle through which the Deceased conducted the florist business. I shall later, when setting forth the procedural history of this matter, make further reference to that complaint of the Plaintiffs.

12 The residential home unit of the Deceased at Queenscliff was sold for $600,000. After the discharge of the mortgage thereon ($159,309) and the payment of various outstanding liabilities in regard thereto, as well as the payment of costs and expenses associated with the sale, the net proceeds of sale were in an amount of $415,321.

13 It will be appreciated, however, that in calculating the amount available for distribution the costs of the present proceedings must be taken into consideration. In the event that one or more of the Plaintiffs be successful in their claims for orders for provisions, such Plaintiffs will be entitled to an order that their costs be paid out of the estate. Irrespective of the outcome of the proceedings the Defendant will be entitled to have his costs paid out of the estate. The foregoing calculation by the Defendant has taken into account at least part of the costs of the present proceedings. It is estimated that the totality of the Defendant’s costs will be in an amount of almost $64,000. It is estimated that the costs of the Plaintiff, Vincent Royce Walton will total $56,000, whilst those of the Plaintiffs in proceedings 5813 of 2003 will total $59,202. Of the Defendant’s costs in the foregoing amount of $64,000, a component of $40,000 has already been taken into consideration in the calculation of the figure of $246,541 performed by the Defendant in his affidavit of 27 April 2004 as being the approximate value of the net distributable estate at that time.

14 In consequence, the totality of the costs which should then be deducted from the figure of $246,521 will be the costs of the Plaintiffs in the two proceedings (totalling $115,202) and the costs of the Defendant in an amount of $24,000 (the difference between his total costs of $64,000 and the amount of $40,000 which has already been taken into account in the calculation of $246,521). Those three components ($24,000 for the Defendant, $56,000 for Vincent and $59,202 for the other three Plaintiffs) total $139,202. When that amount is deducted from the figure of $246,521 there will remain only a little over $107,000 available for distribution in the estate of the Deceased. In consequence, therefore, it is prudent that the Court should proceed upon the basis that the amount ultimately available for distribution will be about $107,000. (In this regard, however, it should be recognised that, in the event that one or more of the Plaintiffs not be successful in his or her claim, it is not likely that the costs of that claim would be allowed out of the estate. In consequence, there would be a reduction in the foregoing total costs of $139,202, with an equivalent increase in the figure of $107,000.)

15 In his affidavit of 28 October 2004 the Defendant stated that the assets of the estate now consist of a total amount of $288,904. However, there are various sums presently outstanding, totalling $18,419. Those sums include more than $17,000 associated with the florist business of the Deceased. The Defendant stated in that affidavit that “The net amount of Estate is $270,484.96 excluding the Tower Superannuation of $48,100”. (I would here interpolate that after I had reserved my decision herein on 13 December 2004 the solicitors for the Defendant, under cover of a letter dated 31 January 2005 placed before the Court a letter dated 4 January 2005 from Tower Australia Limited stating that the trustee of the Tower Life Superannuation Fund had on 30 December 2004 decided to pay the Death Benefit arising from the death of the Deceased as to 25 percent to each of the four Plaintiffs in the present proceedings. In consequence, therefore, each Plaintiff will receive from that fund an amount of a little more than $12,000.)

16 I have already observed that each proceeding was instituted by a summons. Each matter was listed on callover before Master Macready on 30 June 2004, and was fixed for hearing in the Family Provision Running List on 28 October 2004, the estimated total length of the hearing of the two matters being two days. Each matter was listed for directions before Master Macready on 15 September 2004, those directions essentially concerning the desire on the part of the Plaintiffs to obtain additional information from the Defendant regarding various financial details relating to the estate of the Deceased.

17 The matters came on for hearing before me on Thursday, 28 October 2004. At the outset of the hearing I ordered that the two sets of proceedings be heard together and that the evidence in the one, so far as was relevant, be treated as evidence in the other.

18 The hearing occupied the totality of 28 October, and was then adjourned, part-heard, to Friday, 29 October 2004, the Defendant being under cross-examination at the time of that adjournment. During the course of cross examination questions were directed to the Defendant by Counsel for Vincent Royce Walton, with a view to establishing, as I understood it, that certain payments which had been made from the estate of the Deceased had been used to pay debts of the company Vic Walton Motors Pty Limited.

19 When the hearing resumed on Friday, 29 October, Counsel for the respective Plaintiffs each made an application for leave to file an amended summons. That amended summons contained an additional prayer for relief seeking a declaration that the Defendant wrongfully and in breach of trust paid out various moneys from the Deceased’s estate, those payments totalling in excess of $86,000. The further additional prayer for relief in the amended summons was an order that the Defendant pay to the estate of the Deceased the foregoing sum.

20 Although the Defendant opposed the applications to amend each of the summons, nevertheless, for the reasons set forth in the extempore oral judgment then delivered by me on 29 October 2004, I granted that leave, and I made certain consequential orders. The consequence of the granting of that leave to amend the summons was that the hearing of necessity had to be adjourned. The further hearing resumed on Monday, 13 December 2004. On that date Counsel for the respective Plaintiffs sought leave to file a further amended summons. The relief sought in that further amended summons related solely to the amounts referred to in prayer 3 thereof, being amounts the subject of a declaration sought by each Plaintiff that the Defendant had wrongfully and in breach of trust paid out of the estate of the Deceased various moneys there set forth. Counsel for the respective Plaintiffs also stated that each of the Plaintiffs was no longer pressing for the relief sought in prayers 3(iv) and 3(vi) in each of the amended summons and the further amended summons.

21 Counsel for the Defendant opposed leave being granted for the filing of the further amended summonses. In doing so, Counsel sought to revisit the leave which had been granted on 29 October 2004 for the filing by each Plaintiff of an amended summons.

22 For the reasons set forth by me in my extempore oral judgment then delivered on 13 December 2004, in each matter I granted to the Plaintiffs leave to file a further amended summons. I also ordered, pursuant to Part 31 rule 2 of the Supreme Court Rules, that the claims for relief in prayers 3 and 4 of the further amended summons be determined separately from and subsequent to the claims for relief under the Family Provision Act. In consequence, therefore, the hearing proceeded as a hearing in respect only to the claims of the Plaintiffs for orders for provision for their maintenance, education and advancement in life, pursuant to section 7 of the Family Provision Act.

23 In considering their claims it is appropriate that I should set forth details of the financial and material circumstances of each Plaintiff.

24 I shall, without intending to them any disrespect, refer to each of the Plaintiffs by his or her given name.

25 Vincent, who is presently aged 24, is unmarried and has no children. He resides with his mother, Mrs Juliana Gertrude Walton in rented accommodation at Hornsby.

26 Vincent left school after completing Year 10. He does not hold any tertiary qualifications, although it is his ultimate intention to complete his Higher School Certificate and to pursue a diploma or a degree course in marketing or in sales, with a view to embarking upon a career in those fields.

27 Since shortly after leaving school Vincent has been employed as a bingo steward at Hornsby RSL Club, where he now receives $585 a week. Vincent has little in the way of assets, other than a 2000 Subaru Imprezza motor vehicle (for which he paid $23,500), and his clothing and personal effects. He has no savings. Vincent has the following liabilities:

St. George Bank, personal loan - $28,717

ANZ Bank, personal loan - $16,879

Personal loans owing to his half-brother, Michael Brown, totalling $5,000

ANZ Visa card indebtedness - $7,088

St. George Visa card indebtedness - $5,756

Woolworths Ezy Mastercard - $942

ANZ Mastercard - $1,100

28 Vincent’s total liabilities are in an amount of $65,483.

29 Until relatively recently Vincent and his mother, together with Vincent’s half-brother Michael Brown, resided in rented accommodation. However Mr. Brown has subsequently moved into his own residence, and Vincent and his mother reside alone in a home unit situate at and known as 1/17 Sherbrook Street, Hornsby, for which the rental is $240 a week. Vincent pays the totality of that weekly rental and he also has paid the rental bond of $960 (paid through his St. George Visa account), as well additional expenses associated with the removal to that accommodation. Vincent’s mother is a pensioner, and according to him she cannot afford to contribute to the rent of the premises. According to Vincent his average weekly outgoings and expenses total $859.

30 Although no evidence was given Mrs. Juliana Walton, it clearly emerged from Vincent’s evidence that his mother has a gambling addiction. The entirety of any moneys received by her is immediately dissipated in poker machines, usually at the Hornby RSL Club, to which establishment it has been her practise to resort daily since Vincent was a child.

31 Mrs. Juliana Walton, in addition to her problems related to gambling, suffers from depression, for which she takes anti-depressant medication. She also has a physical medical condition of kidney stones which require treatment by way of hospitalisation, and for which she also takes medication. On account of the symptoms caused by that condition she is precluded from any work which requires strenuous activity.

32 In his affidavit of 28 July 2004 Vincent expressed a desire to purchase a town house or a villa adjoining his place of employment, the Hornsby RSL Club. He annexed copies of advertisements from the local newspaper indicating the price of such a two-bedroom residence in that location ranges between $400,000 and $419,000. If unable to afford such a townhouse, then he would like to purchase a two-bedroom home unit in the Hornsby area, for which advertisements indicate the price would be about $369,000.

33 After the Deceased left the family home on 1 March 1987 (at which time Vincent was aged 6) the Deceased continued to have regular contact with Vincent and his mother until 1995 (when Vincent was aged 14). Until then Vincent had a very close relationship with the Deceased, with whom he said that he always got on with very well. Until 1994 it was the practice of the Deceased to visit Vincent and his mother every day at their residence at Hornsby.

34 From 1997 until early 2002 Vincent maintained telephonic contact with his father or saw him on his visits to the family home. In November 2002 the Deceased initiated telephonic contact with Vincent and thereafter visited him at his workplace, arranging that Vincent should take the Deceased to a solicitor. That was done on 19 November 2002 when the Deceased visited Mr Bryan Hamer of Hamer & Hamer, Solicitors, of Balgowlah, concerning the purchase of the residential unit in Queenscliff Road, Queenscliff. On that occasion the Deceased gave instructions to Mr Hamer to draw up a will naming Vincent as his sole beneficiary. Mr Hamer, who during the course of that visit, advised the Deceased concerning the possibility that such a will could be contested by the other children of the Deceased , nevertheless carried out those instructions.

35 As well as the pursuit of tertiary qualifications which would enable him to advance in his career, and the acquisition of a residence (presumably, for his mother as well as for himself), it is Vincent’s desire to be able to discharge his various liabilities totalling $65,483.

36 Renae, who is presently aged 28, is the youngest of the three children of the first marriage of the Deceased, to Mrs Dianne Walton (who is still alive).

37 The Deceased and his first wife were divorced on 18 May 1980, when Renae was less than three years of age. Until that time she resided with the Deceased, her mother and her brothers, firstly, at Northmead, and subsequently at Woy Woy. Throughout that period the Deceased was employed as a used car salesman at Marrickville Motors. After his divorce from his first wife the Deceased had weekend visitations with Renae and her brothers. On most of those occasions the Deceased would collect the three children from their home at Woy Woy (and subsequently at Umina) and take them to his residence at Stephen Street, Hornsby, where he was living with his second wife, Mrs Juliana Walton. On those occasions the three children would stay at the Hornsby residence for the weekend. Those weekend visitations ceased after about one year in circumstances where, according to Renae and her brothers, their mother obtained an order from the Court preventing the Deceased from taking the children on weekend visitations as well as restraining the Deceased from bringing Mrs Juliana Walton’s children with him when he visited Renae and her brothers. The reason for those Court orders was, according to Renae, an incident involving Mrs Juliana Walton’s son by her first marriage, Michael Brown. From that time, when she was aged about 5, until she was aged about 18, Renae had no contact with the Deceased. He sent her no gifts, or cards and he did not telephone her.

38 In 1994, shortly after she attained the age of 18, Renae became desirous of contacting her father. Her mother gave Renae the Deceased’s address and subsequently Renae contacted him by telephone. As a result she spent a weekend with the Deceased and his third wife, Mrs Robyn Walton at their residence in Alexander Street, Manly. Renae was accompanied on that visit by her then fiancé, Jason Holohan. The Deceased sent Renae a set of wine glasses as an engagement present. Although that weekend visit was the last occasion when Renae saw her father, they remained in telephonic contact, every month or two. Renae’s last contact with the Deceased was in October 1996, when they had a heated discussion by telephone.

39 Renae attended school at Umina, completing year 10 and attaining the School Certificate. Since leaving school she has been employed in customer service positions in various stores. Those positions have included working as a cashier, working on the selling floor and in stock control. She has also worked as a bar attendant in a nightclub at Gosford.

40 Renae was most recently employed as a casual receptionist in a business at Rockdale which deals with insurance claims involving electrical goods. In consequence of the birth of her son ten months ago she is currently receiving Centrelink payments totalling $718 a fortnight. It did not emerge with entire clarity from the evidence whether Renae has, in fact, given up her employment or whether she is merely on maternity leave or whether, if she has given up her employment on account of the birth of her son, she proposes ultimately to return to the workforce.

41 Renae has two children, a daughter Isabella Joy Skarpona (who was born on 13 April 1999 and is presently aged 6 years), and, by her present fiancé, Mark Pitt, a son Ashton Ronald Pitt (who was born on 17 May 2004, and is not yet one year of age). Renae and Mr. Pitt were intending to marry in early 2005, their long engagement being made necessary to enable them to acquire sufficient funds to pay for a wedding.

42 Renae’s fiancé, Mr. Pitt, is in poor health, suffering from a neurological problem, which has required a cervo-cranial decompression. Mr. Pitt is employed by the Rail Infrastructure Corporation and has been unable to work since January 2003. Since that time he has been receiving workers compensation payments, which are in a present amount of $883 a fortnight. Thus the total combined income of Renae ($718 a fortnight) and her fiancé ($883 a fortnight) is $1,601 a fortnight. It is difficult to calculate the present combined outgoings of Renae and Mr. Pitt, the details set forth in her two affidavits (of 10 October 2004 and 30 August 2004 respectively) being somewhat inconsistent. However, at the date of the earlier affidavit it was Renae’s evidence that her outgoings accounted for more than she earned.

43 The combined assets of Renae and Mr. Pitt consist of:

Household goods, having an estimated value of about $10,000

Ford motor vehicle, having an estimated value of $4,000.

44 They do not have any savings; indeed their Westpac Bank account is in debit. Renae formerly owned some jewellery, which, however, was stolen in a break and enter robbery.

45 The combined liabilities of Renae and her fiancée are as follow;

Westpac credit card indebtedness, $2,300

Personal loan indebtedness of Mark Pitt, $7,000

NRMA indebtedness of Renae, $1,950

Preschool fees owed by Renae to the Earlwood Preschool, $1,000

Personal loan owed by Renae to Dick Huntington $4,000

Rental arrears owed by Renae and Mr. Pitt jointly, $2,200

School fees owed in respect of Renae’s daughter, Isabella, $1,000 a year.

46 According to Renae, the birth of their new son Ashton will result in additional financial expenses, including the recent purchase of a new cot and change table, as well as such other ongoing expenses as baby formula, nappies and baby wipes.

47 As a result of Mr. Pitt’s poor health, he and Renae have recently relocated to Boambee East, near Coffs Harbour, such removal being said to have been on the recommendation of doctors. Renae has stated in her affidavit evidence that should she receive an order for provision from the estate of the Deceased, she would pay out or reduce the joint debts of Mr. Pitt and herself, and would then hope to be in a position where they could purchase a residence in Coffs Harbour for themselves and the two children.

48 Bradley Adam Walton was born on 24 May 1970 (and is presently aged 34). He was the eldest child of the first marriage of the Deceased. Bradley was aged about 11 when the Deceased and his first wife separated.

49 After the incident to which I have already referred, when Bradley was aged about 12, he had no contact with the Deceased, never seeing or speaking with his father again. He received no gifts, cards or telephone calls from the Deceased for birthdays or for Christmas.

50 Bradley attended primary school and subsequently high school at Umina, until 1988, when he completed his Higher School Certificate. In January 1989, Bradley commenced work as a plasterer. Although he did not complete a formal trade certificate course in plastering, he ultimately obtained a plasterer’s trade licence in about 1998. He is presently self-employed as a plasterer.

51 Bradley married in 1996, and has two children (aged respectively 6 years and 2 years).

52 In consequence of a back injury which he sustained whilst working as an employed plasterer, Bradley receives certain workers compensation payments for treatment to his back.

53 Bradley’s wife is employed as a call-centre manager at Australian Pensioner’s Insurance, earning $580 net a week. From his business as a self-employed plasterer Bradley earns $1,140 gross a week. Details of the various outgoings of Bradley and his wife are set forth in his affidavit evidence, those outgoings totalling $1,714 a week. (It should however be noted that many of those outgoings relate exclusively to Bradley’s business, and include $350 a week income tax.)

54 The assets of Bradley and his wife consist of:

House property situate at and known as 15 Lakala Avenue, Erina, to which an estimated value of about $450,000 is ascribed.

2001 Holden Rodeo dual cab utility motor vehicle, to which an estimated value of $15,000 is ascribed

1998 Ford Falcon sedan motor car, to which an estimated value of $7,000 is ascribed
Furniture and appliances, having an estimated value of about $10,000

Jewellery, having an estimated value of $5,000

Bradley’s superannuation entitlement, in an amount of about $5,000

200 shares in Promina and 200 shares in Axa, to which an estimated total value of $1,200 is ascribed.

55 Apart from a mortgage debt on their house property (presently in an amount of $300,000), the only liability of Bradley and his wife is in respect of a GE Creditline Card, in an amount of $2,600. Bradley has minimal savings. The mortgage loan on the house property was recently increased to enable alterations and extensions to the home to be effected. It is being repaid at the rate of $450 a week.

56 In his affidavit of 8 October 2003 Bradley states that if he were able to obtain an order for provision from the estate of the Deceased, he would use any such funds to reduce the mortgage on his house property, which is presently in an amount of $300,000, and to remove a tree from his front yard which, according to Bradley, is causing damage to his garage. He also stated that at some time in the near future a more commodious residence would be required in order to accommodate his growing family.

57 Matthew Scott Walton is the second child of the first marriage of the Deceased. He was born on 13 February 1973, and is presently aged 32 years.

58 He was aged about 9 years when his parents separated and about 10 years when the incident to which I have already referred took place. From that time onwards Matthew saw the Deceased on only one occasion, when he was aged about 10. He had no contact with the Deceased thereafter.

59 From the time when he was aged about 10 Matthew received no gifts, cards or telephone calls from the Deceased, for birthdays or for Christmas.

60 Matthew attended Umina High School, leaving in 1988 without completing his School Certificate. He subsequently attended Newcastle TAFE College, completing an apprenticeship in painting in 1992. Since 1995 Matthew has been self-employed as a painter, his business being styled, Matt Walton Painting.

61 Matthew married in 1997. He and his wife have two children, one now aged almost 4 years and one aged nine months, the birth of their younger child on 3 July 2004 resulting in additional financial expenditure for the household.

62 Matthew’s wife was, until the birth of their son in July 2004, employed as a call-centre operator with Australian Pensioner’s Insurance, where she worked part-time, earning about $19,000 gross a year. From his business Matthew earns about $1,150 net a week. In his affidavit evidence Matthew sets forth details of his weekly outgoings. However, it would appear that many of the items of those outgoings relate exclusively to Matthew’s business.

63 Matthew and his wife occupy a residence at 20 Stella Road, Umina which they purchased in 1997 for $120,000. That is a three bedroom fibro dwelling, having a double garage. Matthew estimates that its present value is $390,000.

64 In addition, their assets consist of:

2001 Mitsubishi Express van, having an insured value of $18,600
1994 Mitsubishi Magna station wagon, having an insured value of $11,660

Savings in the name of Matthew’s wife, “used for tax liability”, in the St. George Bank, the balance in that account varying between $1,000 and $5,000.

65 In addition, Matthew and his wife own furniture and electrical appliances, having an estimated value of $10,000, and his wife owns jewellery, having an estimated value of $3,000. Matthew has a small superannuation entitlement (in an amount unquantified).

66 The liabilities of Matthew and his wife consist of a mortgage debt in respect to their residence, currently in an amount of $180,000, and a line of credit with the St. George Bank in an amount of $25,000.

67 Since 27 July 2004 Matthew and his wife have received a Centrelink family allowance of $181 a week.

68 At present Matthew’s wife is not working or receiving any maternity leave payments.

69 Neither the Defendant nor his brother Kurt John Lehmann has chosen to place before the Court any information concerning their respective financial and material circumstances (although there was some cross-examination of the Defendant concerning his present employment and recent employment history). In consequence, the Court is entitled to assume that the beneficiaries, who are the chosen objects of the testamentary beneficence of the Deceased, do not raise their financial and material circumstances as a ground upon which any order for provision to which the Plaintiffs (or any of them) might ultimately establish an entitlement should be reduced, let alone extinguished, as a result of those circumstances of the beneficiaries.

70 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the Plaintiffs.

71 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties, together with a chronology from Counsel for the Plaintiffs in proceedings 5813 of 2003. Those documents will be retained in the Court file.

72 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 of the Plaintiffs has the standing to bring the present proceedings.

73 It does not appear to be suggested (and there is certainly no evidence which would support such a suggestion) that either of the beneficiaries, being the Defendant and his brother Kurt, is an eligible person in relation to the Deceased. Each of the beneficiaries is a stepchild of the Deceased, their mother, Mrs. Robyn Walton, being the third wife of the Deceased. However, there is no evidence that either of the beneficiaries was a member of the same household as the Deceased, or that either of the beneficiaries was dependent upon the Deceased.

74 Nevertheless, it must be appreciated that the Defendant and his brother are the chosen objects of the testamentary beneficence of the Deceased. They do not have to prove anything. It is for each of the Plaintiffs to establish his or her case upon its own merits. If the Plaintiffs cannot do so, then their claims must fail. I have already recorded that neither of the beneficiaries has chosen to place before the Court any details of his financial and material circumstances and that, in consequence, those circumstances cannot have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which any of the Plaintiffs might otherwise have established.

75 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 the Court must first establish whether each Plaintiff has been left without adequate provision for his or her maintenance.

76 It will be appreciated that in consequence of the decision of Tower Australia Limited at the end of 2004 to pay the death benefit arising from the death of the Deceased as to 25 percent to each of the four Plaintiffs, the financial assets of each Plaintiff will be increased by an amount of a little more than $12,000.

77 Vincent is in poor financial circumstances. His liabilities, which totalled about $45,000 in October 2003 had increased to about $65,000 by July 2004. Nevertheless, the cause of this deterioration in his financial situation has not been adequately explained. It has been submitted on behalf of the Defendant that Vincent is obviously a poor financial manager, and that he would squander any benefit which he might receive from the estate of the Deceased. Those suggestions, even if established (and I do not accept that they have been established), cannot affect the entitlement of Vincent to an order for provision out of the estate of his father (although, if established, they might be relevant to the form of the order for such provision).

78 I am, however, in agreement with the submission of the Defendant that much of the evidence which Vincent placed before the Court concerning his financial and material circumstances consisted merely of his own assertions, and was not supported by any documentary material. I would in this regard refer to the alleged indebtedness of Vincent to his half-brother Michael Brown for a loan of $5,000 which was said to have been made to him by Mr. Brown, who has been unemployed since 2000. Similarly, whilst I accept that Vincent’s mother has a gambling addiction, it seems somewhat improbable that she is unable to make any contribution whatsoever towards the rent of the premises which she and Vincent are occupying, towards purchase of food (although Vincent conceded in his oral evidence that until 1999 his mother actually paid for Vincent’s own food) or towards their unusually high telephone bills, totalling $3,640 a year. In this latter regard, once again, no documentation has been presented which would support Vincent’s assertion of the size of the telephone bills or of the fact that they are paid solely by him.

79 Nevertheless, the Defendant concedes that Vincent should have received a legacy from the estate of the Deceased, albeit not a large legacy.

80 The question confronting the Court is how this omission of the part of the Deceased should be remedied.

81 A significant part of Vincent’s outgoings and a significant cause of the shortfall between his income and his expenditure relate to the repayment by him of the personal loan from the St. George Bank (incurred for the purchase of his motor vehicle) in an amount of $175 a week; the repayment of the personal loan from the ANZ Bank, in an amount of $75 a week; the repayment of the St. George Visa Card indebtedness, in an amount of $27 a week; and the repayment of the ANZ Mastercard, in an amount of $6 a week.

82 If Vincent were to receive from the estate of the Deceased an amount sufficient to discharge the entirety of his liabilities, his weekly outgoings would be reduced by $283, with the consequence that there would be no shortfall between his net weekly income of $585 and his weekly outgoings (which are presently in an amount of $859).

83 Although there was little contact between Vincent and his father from 1995, when Vincent was aged 14, until 2002, when the Deceased arranged for Vincent to accompany him to visit Mr. Bryan Hamer, Solicitor, nevertheless, that lack of contact was due no less to the Deceased than it was to Vincent. One might have expected a father to initiate contact with his son (aged from 14 to 21), rather than the other way about. The Court should not overlook the stated intention of the Deceased to make Vincent his sole beneficiary or the fact that he gave to Mr. Hamer instructions to prepare a will to that effect and that such a will was then drawn up, although such a will was never executed by the Deceased. It is apparent that the Deceased throughout most of Vincent’s life after the separation between the Deceased and Vincent’s mother chose to disregard his responsibilities towards his youngest child.

84 Vincent is now aged only 24. He has aspirations to further his education, with a view to improving his career prospects. He requires a start in life. I consider that he has established an entitlement to receive from the estate of his father a legacy which will be sufficient to enable him to discharge his debts, and to have a relatively small fund to enable him to establish himself in life, especially by obtaining further education qualifications. To that end, I consider it is appropriate that he should receive from the estate of the Deceased a legacy in the sum of $100,000.

85 That Renae is in a position of need is acknowledged by the executor, who agrees that a just testator would have made a modest provision for her from his estate.

86 I have already referred to the somewhat unsatisfactory nature of the evidence concerning Renae’s employment. Although there is evidence from Renae herself concerning the health problems of her fiancé Mr. Pitt, nevertheless there is no very precise evidence which establishes the extent to which, if at all, Mr. Pitt is precluded from taking care of the children and thus enabling Renae to return to part-time or full-time employment.

87 Although Renae expresses a desire to receive from the estate a benefit which would enable her to purchase a residence for herself, her fiancé and her children, nevertheless there is no evidence placed before the Court of any particular residence which she has in mind or of the cost of that, or some other, desired residence. Neither is there before the Court any evidence as to the capacity of Renae and Mr. Pitt to service any housing loan which they might obtain with respect to the acquisition of such a residence. For it will be appreciated that an able bodied child should not look to the estate of a parent for the acquisition of an unencumbered residence.

88 Despite the submission on behalf of the defendant that the Court should make no order for provision in favour of Renae (that submission being based largely upon the lack of contact between Renae and her father: the comments which I have made concerning the lack of contact between Vincent and the Deceased are equally applicable to the lack contact between Renae and the Deceased), nevertheless, I am satisfied that in her present circumstances, with two small children and a fiancé who is unlikely to re-enter the workforce, it is appropriate that Renae should receive from the estate of the Deceased a legacy which will be sufficient to enable herself and her family to improve their admittedly frugal lifestyle, and to provide a fund to meet unexpected contingencies. In my view the appropriate amount for such a legacy would be $60,000.

89 Bradley and his wife together own a house property having an estimated value of $450,000, upon which there is presently a mortgage debt of $300,000. They own two motor vehicles, having an estimated total value of $22,000, as well as the furniture and contents of their house ($10,000), jewellery ($5,000), shares ($1,500) and a superannuation entitlement ($12,000), thus bringing the total value of their assets to $500,500. Their only liabilities consist of the foregoing mortgage debt of $300,000 and a GE Creditline Card indebtedness of $2,600, being in a total amount $302,600.

90 The combined incomes of Bradley ($1,140 gross a week) and his wife ($580 net a week) total $1,720, whilst their weekly outgoings total $1,110.

91 I am not satisfied that Bradley has established relevant need, to the extent that he has been left without adequate provision for his proper maintenance. It follows that I am not persuaded that he is entitled to an order for provision out of the estate of the Deceased, and thus his claim also will be dismissed.

92 Matthew and his wife own a house property having an estimated value of $390,000, upon which there is presently a mortgage debt of about $180,000. They own two motor vehicles, having a total value of about $30,000, as well as the furniture and contents of their house, having an estimated value of about $10,000. Jewellery ($3,000), savings of $5,000 and a superannuation entitlement of $12,000 bring the total value of their assets to the vicinity of $450,000; whilst their liabilities consist of the mortgage debt of $180,000 and a line of credit with the St. George Bank of $25,000, being in a total amount of $205,000.

93 The combined income of Matthew ($1,150 net a week) and of his wife ($181 net a week) total $1,331, whilst their estimated weekly outgoings total $1,042.

94 I am not satisfied that Matthew has established relevant need, to the extent that he has been left without adequate provision for his proper maintenance. In these circumstances, therefore, I am not persuaded that he is entitled to an order for provision out of the estate of the Deceased, and his claim will be dismissed.

95 I have not heard any submissions in respect to the costs of the unsuccessful claims of Bradley and Matthew. My present view is that, whilst they are not entitled to receive any costs out of the estate, neither should they pay any costs to the estate. However, I propose to reserve to those Plaintiffs and to the Defendant liberty to apply for a variation of a costs order along the foregoing lines in relation to the claims of Bradley and Matthew.

96 I have already referred to the complaint of the Plaintiffs (to which a considerable quantity of evidence and submissions were directed) that the Defendant, without express authority under the will of the Deceased, chose to assume control of the company Vic Walton Motors Pty Limited and to conduct the florist business of that company, with the consequence that the Defendant then made payments from the assets of the Deceased in order to discharge the liabilities of that company. The complaint of the Plaintiffs concerning those payments is relevant in the context of the claim of each Plaintiff for an order for provision under the Family Provision Act only to the extent that, if the actual assets of the estate are not sufficient to meet any orders for provision made in favour of the Plaintiffs, those successful Plaintiffs may pursue proceedings in the nature of an administration suit.

97 In my interlocutory judgments herein of 24 October 2004 and 13 December 2004 I emphasised that I would not, during the course of the present hearing in respect to the claims made under the Family Provision Act, embark upon an administration suit concerning the estate. The claims for relief in that latter regard (contained in prayers 3 and 4 in the further amended summons) will, by my order of 13 December 2004 be determined separately from and subsequent to the claims for relief under the Family Provision Act.

98 I have already expressed my conclusion that each of Vincent and Renae has established an entitlement to an order for provision, by way of legacies of $100,000 and $60,000 respectively. The totality of those proposed legacies is greater than the amount of $107,000 which I have earlier herein stated to be the amount which the Court should prudently accept as the amount presently available for distribution in the estate. Nevertheless, in the light of the costs order which I contemplate should be made in proceedings 5813 of 2003 – including that there be no order against the estate in respect to the costs of Bradley and Matthew – it is likely that the figure of $107,000 will significantly increase.

99 Without my embarking upon a consideration in the nature of an administration suit, it appears to me that a number of the payments made by the Defendant from the estate were clearly payments on behalf of the company. If the estate is thus depleted to the extent that the foregoing legacies are not met from assets presently held by the Defendant, then, of course, Vincent and Renae, in their capacity as beneficiaries in the estate (in consequence of the provisions of section 14(1) of the Family Provision Act), will be entitled to relief of the nature sought in prayers 3 and 4 of the further amended summons. To the extent that the Defendant has in a manner not authorised by the will made payments from the estate of the Deceased which have the effect of reducing the amount available in the estate for payment of the legacies to Vincent and Renae, then the Defendant will be personally liable to pay the legacies.

100 I make the following orders;

4298 of 2003 Vincent Royce Walton v Mark Kenneth Lehmann

(1). I order that the Plaintiff receive from the estate of the late Victor Carl Walton (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 30 April 2005, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

(2). I order that the balance of the relief sought in the further amended summons be stood over generally, with liberty to restore on seven days’ notice.

(3). I order that the costs of the Plaintiff on the party and party basis in respect to his claim under the Family Provision Act and the costs of the Defendant on the indemnity basis in respect to such claim be paid out of the estate of the Deceased.

(4). The exhibits may be returned.

5813 of 2003 Renae Kristin Walton and Ors v Mark Kenneth Lehmann

(1). I order that the Plaintiff Renae Kristin Walton receive from the estate of the late Victor Carl Walton (“the Deceased”) a legacy in the sum of $60,000, such legacy not to bear interest if paid on or before 30 April 2005, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.
(2). I order that the claims of the Plaintiffs Bradley Adam Walton and Matthew Scott Walton under the Family Provision Act 1982 be dismissed.
(3). I order that the balance of the relief sought in the further amended summons be stood over generally, with liberty to restore on seven days’ notice.
(4). I order that the costs of the Plaintiff Renae Kristin Walton on the party and party basis in respect to her claim under the Family Provision Act and the costs of the Defendant on the indemnity basis in respect to such claim and in respect to the claims of the other Plaintiffs under the Family Provision Act be paid out of the estate of the Deceased, and that there be no other order relating to the costs in respect to the claims of the other Plaintiffs under the Family Provision Act .
(5). I reserve to the Plaintiffs Bradley Adam Walton and Matthew Scott Walton and to the Defendant liberty to apply within fourteen days of the date hereof for a variation of the foregoing order in respect to the costs of the claims of those Plaintiffs.
(6). The exhibits may be returned.

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