Wells v de Gabriel

[2003] NSWSC 348

CITATION:	Wells v de Gabriel [2003] NSWSC 348
HEARING DATE(S):	Thursday, 24 April 2003
JUDGMENT DATE:	24 April 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1) I order that the plaintiff receive out of the estate of the late Francesco Surace, ("the deceased") a legacy in the sum of $80,000, such legacy not to bear interest if paid on or before 8 May 2003, and if not so paid, to bear interest at Supreme Court rates; (2) I order that costs of the plaintiff 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; (4) I order that personal service of notices under Part 77 rule 63 of the Supreme Court Rules be dispensed with and that service by post of such notices be deemed adequate service thereof.
LEGISLATION CITED:	Family Provision Act 1982
PARTIES :	Diane Wells (Plaintiff) Jean de Gabriel (Defendant)
FILE NUMBER(S):	SC 1442/02
COUNSEL:	L. Ellison (Plaintiff) E. Petersen (Defendant)
SOLICITORS:	Patrick Timbs & Co, Solicitors (Plaintiff) Mark Turnbull & Co (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 24 April 2003

1442/02 DIANE WELLS -v- JEAN DE GABRIEL – ESTATE OF FRANCESCO SURACE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 11 February 2002, the plaintiff, Diane Wells, claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Francesco Surace (to whom I shall refer as “the deceased”).

3 The deceased died, aged 79, on 6 September 2000. He left a will dated 6 August 1997, probate whereof was, on 28 January 2001, granted to Jean de Gabriel, the executor named in such will (who is the defendant to the present proceedings).

4 The assets in the estate of the deceased at the time of his death, were set forth in the inventory of property. The substantial asset was a house property situate at and known as 29 Boronia Road, Lake Munmorah, to which, in the inventory of property, an estimated value of $11,000 was attributed.

5 In addition, the deceased had moneys in bank accounts, totalling about $2,500, and a term deposit which, together with accrued interest, was in an amount of almost $52,000.

6 The deceased, by his will, gave a legacy of $52,000 to the defendant. He forgave a debt of $20,000 lent by him to one Carmela Dotta, and he gave the residue of his estate equally among a niece, Irene Bennett, and a niece and a nephew (thus described), whom I gather to be a nephew by marriage, being Annunciata Surace and Francesco Sinopoli. The niece, Mrs Bennett, resides in Australia, whilst the niece and nephew, Annunciata Surace and Francesco Sinopoli, reside in Calabria in Italy.

7 The plaintiff is the stepdaughter of the deceased. The plaintiff’s mother, Mrs Nellie Wells, entered into a relationship with the deceased when the plaintiff, who was born on 8 August 1947, was aged only about three. Subsequently, the plaintiff’s mother, in about 1966, married the deceased.

8 The plaintiff resided with her mother and the deceased throughout the entirety of her formative years. She had a close relationship with the deceased, who was the only father whom the plaintiff knew; the deceased was in loco parentis to the plaintiff.

9 When the plaintiff married on 7 November 1964, her mother and the deceased arranged the wedding and the deceased gave her away at the ceremony. For a period of about two yeas after her marriage, the plaintiff and her husband resided in a property owned by the deceased.

10 When the plaintiff’s first child, her son Robert, was born on 1 June 1971, the deceased attended his baptism and was his godfather. When the plaintiff’s second child, Belinda, was born on 19 November 1973, the deceased attended her baptism also.

11 The plaintiff maintained a close and affectionate relationship with the deceased after her marriage and after she and her husband moved away from the deceased’s home. In 1983 the employment of the plaintiff’s husband in the electricity and power industry resulted in it being necessary for him, together with his wife and children, to travel throughout New South Wales and also interstate to Queensland. The plaintiff maintained regular contact with the deceased by telephone until the late 1990s and usually visited the deceased each year.

12 The deceased made a number of wills before that which was admitted to probate. In wills made on 17 October 1991, 16 February 1995 and 10 May 1995 the deceased named the plaintiff as substitutionary executor.

13 In a number of those wills the plaintiff’s children, Robert Shannon Wells and Belinda Ann Wells (described respectively as “my step grandson” and “my step granddaughter”), received significant benefits. The plaintiff herself was not named as a beneficiary in those wills.

14 For some reason, after 1997, the deceased chose not to communicate with or have contact with the plaintiff. Attempts by the plaintiff to communicate by mail with the deceased and by telephone, were unsuccessful. The deceased had, in about 1997, entered into a de facto relationship with the defendant. That may have explained, perhaps in part, the failure of the deceased to maintain contact with the plaintiff and his ignoring of the communications from the plaintiff.

15 The plaintiff has set forth details of her financial and material circumstances. She and her husband jointly own a residence at Wandal near Rockhampton in the State of Queensland, to which a value of $102,000 is attributed. That residence is subject to a mortgage upon which an amount of $40,000 is outstanding.

16 They also own a motor vehicle, now 25 years old, to which they attribute a value of $6,000. They have a superannuation fund of $5,000 and a retirement fund of $5,000, as well as household effects, to which a value of $3,500 is attributed. Apart from the mortgage, the only significant liability of the plaintiff and her husband is indebtedness on their Commonwealth Bank Mastercard in an amount of $3,000.

17 The plaintiff’s husband has experienced a problem with chronic contracture of his hands known as Dupuytren’s Contracture. At about the time when that physical situation manifested itself, the plaintiff’s husband in 2000 accepted voluntary redundancy, receiving an amount of $12,000. He is presently in receipt of a disability support pension, which varies in amount between $41 and $60 a week.

18 The plaintiff herself is in casual employment as a cleaner, at times working two cleaning jobs. In the 2000-2001 financial year, she earned a net amount of $25,000. She estimates that the total weekly earnings of herself and her husband are a little under $800, whilst their total weekly outgoings are about $755.

19 The plaintiff states that her household furniture and white goods are old and that she is desirous of replacing them. She provided information on prices of various furniture and electrical goods, which total an amount of $16,000.

20 The defendant has sold the house property of the deceased at Lake Munmorah. At the present time, the assets of the estate are held on a controlled money account in an amount totalling almost $253,000 and in the trust account of the solicitors for the defendant in an amount of $12,651. There are, therefore, assets in the estate totalling $265,651.

21 It will be appreciated, however, that in calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration. The defendant will, in any event, be entitled to an order that her costs be paid out of the estate of the deceased; it is estimated that those costs will total about $42,400.

22 The plaintiff, if successful in the present claim, will also be entitled to an order that her costs be paid out of the estate; it is estimated that those costs will total about $35,350. In consequence, therefore, the total costs of the proceedings will be in an amount of about $77,700. That will leave a distributable estate of a little under $188,000.

23 The plaintiff submits that she is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she was a member of the same household as the deceased and that she was totally or partly dependent upon the deceased.

24 From the time when she was aged three until she moved out of home when she was aged 19, after her marriage, the plaintiff was a member of the same household as the deceased. Throughout at least the period until she married, the plaintiff was partly dependent upon the deceased. He was, throughout that period, in loco parentis to the plaintiff and was the only father whom she had throughout that period.

25 The defendant does not dispute that the plaintiff is an eligible person within paragraph (d). I am satisfied that she is an eligible person within that paragraph of the definition. As such, she has the standing to bring the present proceedings.

26 However, since the plaintiff is an eligible person only within paragraph (d), she must establish, pursuant to the provisions of section 9 of the Family Provision Act, that there are factors which warrant the making of the present application.

27 I have had the benefit of receiving from Counsel for the respective parties a chronology and a written outline of submissions. Those documents will be retained in the Court file. Whilst the defendant concedes the status of the plaintiff as an eligible person, the defendant does not, however, concede that there are factors which warrant the making of the present application.

28 It is submitted on behalf of the plaintiff that the factors which warrant the making of the application are:

· that the deceased was the plaintiff’s step father;

· that he was in loco parentis to the plaintiff for the entirety of her formative years;

· the plaintiff knows no other father; the deceased gave away the plaintiff at her wedding;

· the plaintiff’s mother contributed to the purchase of the real estate of the deceased at Lake Munmorah;

· the plaintiff and her husband helped to prepare the land at Lake Munmorah for the construction of the house property upon that land;

· the plaintiff herself did not benefit from the estate of her mother (which, as I understand it, passed in its entirety to the deceased).

29 I am satisfied that the plaintiff has established that there are factors which warrant the making of the present application.

30 The plaintiff submits that she has been left without adequate provision for her proper maintenance and advancement in life. She received no benefit under the will of the deceased.

31 It is submitted on her part that it is appropriate that she should receive some benefit from the estate and that adequate provision for her proper maintenance would appropriately require that she receive a benefit which would enable her to discharge the mortgage on the residence of herself and her husband and to have a fund which would enable her to improve her modest and frugal lifestyle.

32 The claim of the plaintiff must, however, be approached in the light of the competing claims upon the testamentary bounty of the deceased. The chief of those competing claims is that of the defendant. She was, for the last three years of his life, the de facto spouse of the deceased. She was his primary carer when he suffered from ill health and was unable to care for himself.

33 The defendant does not claim a greater provision from the estate of the deceased than the legacy of $52,000 given to her by the will. Nevertheless, the defendant submits that that legacy should be preserved intact and that it should not be detrimentally affected by reason of any provision which might be made in favour of the plaintiff.

34 The other three beneficiaries, being the niece, Mrs Bennett, and the niece and nephew by marriage in Italy, have all been served with notices of claim in the proceedings. They have not placed before the Court any information concerning their financial and material circumstances. There is evidence from Mr Greg Alfonzetti, a solicitor who has been retained by the solicitors for the defendant in the present proceedings to communicate in the Italian language, both in correspondence and orally, with the beneficiaries in Italy, and with the lawyer who represents them. The attitude of the beneficiaries in Italy is that they desire to retain the interest given to them under the will of the deceased. Further, that they do not wish to place before the Court any evidence in the proceedings.

35 It will be appreciated that none of the residuary beneficiaries is an eligible person in relation to the deceased. The defendant, as the de facto spouse of the deceased, is an eligible person within paragraph (a) of the definition of that phrase.

36 I consider that any benefit to which the plaintiff might otherwise establish an entitlement should not have the effect of reducing the legacy given by the will to the defendant; that legacy will be retained intact. Any benefit for the plaintiff will come out of residue.

37 If one approaches the value of the estate as being in an amount, after provision is made for the costs of the present proceedings, of about $188,000, and if the legacy of 52,000 to the defendant is preserved intact, there would remain in residue an amount of about 136,000. Under the terms of the will each of the three residuary beneficiaries would therefore receive about $45,300.

38 The plaintiff’s needs are for the discharge of her mortgage ($40,000), the acquisition of up to date furniture and appliances ($16,000) and the purchase of a new motor vehicle (about $25,000). I am satisfied that it is appropriate that the plaintiff should receive a benefit from the estate of the deceased and that that benefit should come out of residue.

39 I consider that it is appropriate that the plaintiff should receive from the estate of the deceased, a legacy in the sum of $80,000, and I propose so to order.

40 I make the following orders:

(1). I order that the plaintiff receive out of the estate of the late Francesco Surace, (“the deceased”) a legacy in the sum of $80,000, such legacy not to bear interest if paid on or before 8 May 2003, and if not so paid, to bear interest at Supreme Court rates.

(2). I order that costs of the plaintiff 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.

(4). I order that personal service of notices under Part 77 rule 63 of the Supreme Court Rules be dispensed with and that service by post of such notices be deemed adequate service thereof.

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Last Modified: 12/05/2003