Williamson v Williamson
[2011] NSWSC 228
•30 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Williamson v Williamson [2011] NSWSC 228 Hearing dates: 21 March 2011 Decision date: 30 March 2011 Before: Hallen AsJ Decision: 1. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff is to receive out of the estate of the deceased, a lump sum of $280,000. The burden of the provision should be borne by the Defendant.
2. The lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment.
3. The lump sum and any interest accrued thereon should constitute a charge on the Medowie property until it is paid.
4. Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
5. Reserve further consideration.
6. Defer question of costs for further argument if parties unable to agree.
Catchwords: Family provision order sought by daughter of deceased under Succession Act 2006 Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Succession Act, 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005Cases Cited: Andrew v Andrew [2011] NSWSC 115
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bull Re; Bentley v Brennan [2006] VSC 113
Cameron v Cameron [2009] SASC 27
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62
Faulkner v McLeod [2011] NSWSC 92
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Litchfield v Smith & Tingate [2010] VSC 466
McCosker v McCosker [1957] HCA 52
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Puckridge (dec'd), In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161
Savic and Ors v Kim [2010] NSWSC 1401
Singer v Berghouse (No 2) [1994] HCA 40
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11
Walker v Walker (NSWSC, 17 May 1996, unreported)Category: Principal judgment Parties: Tracey Jane Williamson (Plaintiff)
Gordon Thomas Williamson (Defendant)Representation: Counsel:
Ms L Goodchild (Plaintiff)
Mr A Maroya (Defendant)
Solicitors:
Harris Wheeler Lawyers (Plaintiff)
Stuart J Beal (Defendant)
File Number(s): 2010/106674
Judgment
The Application
HIS HONOUR : Tracey Jane Williamson ("the Plaintiff"), who is the daughter of Bruce Edwin Williamson ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
The Plaintiff commenced the proceedings by Summons filed on 30 April 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).
The Defendant named in the Summons is Gordon Thomson Williamson, the executor appointed in the Will of the deceased, to whom Probate was granted. The Defendant is the son of the deceased and the brother of the Plaintiff.
There is said to be no question, in the present case, of any order for provision being sought, or made, out of notional estate of the deceased, despite the fact that the estate of the deceased appears to have been wholly distributed to the Defendant (within the period prescribed for the making of the application). The Defendant states that he will satisfy any family provision order that the court makes out of property of the deceased that was distributed to him.
Background Facts
The following facts are uncontroversial.
The deceased died on 1 May 2009.
The deceased married Gwendoline Olive Russ in September 1960. They separated in 1985 and their marriage was dissolved in 1988. Mrs Russ married her present husband in 1992. Mrs Russ is the mother of the Plaintiff and the Defendant.
The deceased left a Will made on 24 February 1988, Probate of which was granted, on 22 July 2009, by the Supreme Court of New South Wales.
The deceased's Will provided, by Clause 2, for the whole of the deceased's estate to pass to the Defendant, absolutely. In the event that the Defendant did not survive the deceased, the whole estate was to pass to the Plaintiff (Clause 4).
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $503,948. No liabilities were disclosed. The estate was said to consist of real property at Medowie ($250,000), money in the bank or on deposit ($225,313), shares in public companies ($12,856), and proceeds of a life policy ($15,778). There were moneys ($716) held in a joint bank account conducted in the names of the deceased and the Defendant.
Following the completion of the application for Probate, the Defendant became aware that the value attributed to the shares in the Inventory of Property was incorrect. The value of those shares was corrected in an affidavit, sworn 21 June 2010, by the Defendant's solicitor, Stuart Beal, who stated that the then value of those shares was $93,517.
In an affidavit sworn on 21 March 2011, by the Defendant, he discloses that all of the shares referred to were distributed to, and that they are still held by, him; that the Medowie property was also transmitted to, and is still held by, him; that the moneys in bank were, and other property was, initially, collected and paid into the account of his solicitor ($250,368), from which estate expenses ($465) and costs of probate and associated expenses ($11,439) together with some counsel's fees ($3,643) were paid, with the balance (about $235,000) transferred, on 16 October 2009, into a bank account in the name of the Defendant, and his partner, Kay Thorn.
At the hearing, the parties agreed that the current value of the Medowie property was $385,000, and that the value of the shares was estimated to be $90,805. It was said that the Defendant and his de facto partner, Ms Thorn, had cash in bank, which was the balance of the moneys transferred to the Defendant, out of the estate, of about $18,000, together with moneys held in a solicitor's trust account of about $24,000.
In the course of cross-examination of the Defendant, it was revealed that a debenture with a value of $50,188 was transmitted to the Defendant on 17 September 2009, and another, with a value of $9,660, was transmitted on 15 October 2009. It was also revealed that the Defendant had received dividends on shares, of no less than $2,910, as well as rent from the Medowie property of $8,062.
It has been pointed out, on many occasions, most recently by me in Faulkner v McLeod [2011] NSWSC 92, at [79]:
"79 It must not be forgotten that the Defendant is the administrator of the deceased's estate and was duty bound to provide to the court, and to the Plaintiff, precise details of the nature and value of the deceased's estate at the date of death and at the hearing: Fiorentini v O'Neill [1998] NSWCA 79...."
On the second day of the hearing, the parties agreed that the gross value of the estate, at the date of hearing, if it had been undistributed, should be estimated to be $782,777. It was also agreed, that the Defendant should be taken as having received, as a partial distribution of his entitlement under the Will of the deceased, $235,000, plus the debentures with a value of about $61,000, as well as the rent and dividends of about $10,000.
Apart from stating that he had spent no less than $25,000 on the Medowie property, and about $30,000 on the jointly owned property, in which he and Ms Thorn lived, the Defendant did not provide details of how the balance of amounts received by him had been spent.
In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs should be paid out of the estate.
The Plaintiff's costs and disbursements of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $41,000 (inclusive of GST and upon the basis of a two day hearing). The costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are said to be $39,080.
The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be in the order of $29,000. This estimate is in addition to the amounts already paid to the Defendant's solicitors referred to above.
Again, on the second day of the hearing, the parties accepted that, for the purposes of the hearing, I should determine the Plaintiff's application upon the basis that the actual net distributable estate, after the payment of such costs as may be ordered to be paid out of the estate, using the costs estimates set out above, will be about $715,000. From this amount will be deducted the amounts referred to above, which are to be treated as an interim distribution made to the Defendant. This means that, effectively, the Medowie property ($385,000), the shares ($90,850), and the amount of $24,000 held in the trust account of the Defendant's solicitor, will be available to satisfy the provision, if any, made for the Plaintiff, as well as the costs of the proceedings, if any, as are ordered to be paid out of the estate. (I leave aside the amount of $18,000 left in the bank account of the Defendant and Ms Thorn.)
The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant and Mrs Russ, the former wife of the deceased. The Defendant read an affidavit sworn by Mrs Russ at the hearing. Mrs Russ has not made, and indicated that she did not wish to make, any claim in the proceedings.
Only the Plaintiff has commenced proceedings under the Act.
The Statutory Scheme - The Act
I shall discuss the statutory scheme that is relevant to the facts of the present case.
The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:
"Purposive construction of the Act
There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.
There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."
Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a testator's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.
The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.
Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".
Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).
Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.
Each of the words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin at [114], Callinan and Heydon JJ said:
"[T]he use of the word "proper"...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209; Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62 at [78]. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. It has been said that whether the jurisdictional question is satisfied "is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion": Peter Robert Durham v Bruce Albert Durham & Ors at [81].
Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).
Tobias JA said:
"42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3) at [81]-[85], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been established, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act, at least in part, is new. It provides:
"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person , and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court :
(a) any family or other relationship between the applicant and the deceased person , including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant , to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person 's estate,
(c) the nature and extent of the deceased person 's estate (including any property that is, or could be, designated as notional estate of the deceased person ) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant , of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person 's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant , any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person 's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person 's family, whether made before or after the deceased person 's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant ,
(i) any provision made for the applicant by the deceased person , either during the deceased person 's lifetime or made from the deceased person 's estate,
(j) any evidence of the testamentary intentions of the deceased person , including evidence of statements made by the deceased person ,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person 's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant ,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person ,
(n) the conduct of any other person before and after the date of the death of the deceased person ,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person 's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.
Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons, as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210):
"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."
And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231):
"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."
Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:
(i) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court; or
(ii) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.
Section 65(1) of the Act requires the family provision order to specify:
(i) the person or persons for whom provision is to be made; and
(ii) the amount and nature of the provision; and
(iii) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and
(iv) any conditions, restrictions or limitations imposed by the court.
The order for provision out of the estate of a deceased person may be made in a variety of ways, including by way of a lump sum, periodic sum, or "in any other manner which the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).
Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).
Additional Legal Principles
In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim such as this one.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.
In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".
The nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
Some additional general principles should be remembered in relation to a claim by an adult child:
(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set a child up in a position where he, or she, can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation ( McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801).
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia .
(d) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented:
"57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.
58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation."
(e) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.
Credibility of Witnesses
I am satisfied that there were not many facts seriously in dispute between the parties. I have earlier commented upon the Defendant's failure to disclose fully, and accurately, the nature and value of the deceased's estate. I am satisfied, however, that this failure was caused by a lack of care, rather than because of any intention to mislead either the Plaintiff or the Court. The Plaintiff did not submit to the contrary.
The cross-examination of each party leads me to the conclusion that each party endeavoured to give her, and his, oral evidence, truthfully.
On the one issue that was the subject of dispute, at least between Mrs Russ and the Plaintiff, that is, the issue whether the deceased had abused the Plaintiff as she alleged, the parties adopted the approach that it was not necessary for me to decide that issue. The approach of the Defendant, candidly expressed by his counsel, was that the Defendant did not know one way, or the other, whether the Plaintiff had been abused as alleged, but her belief that she had been was a sufficient, and satisfactory, explanation for her conduct towards the deceased and their estrangement. (I shall return to this topic later in this Judgment.)
Relevant Facts
I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.
(a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship
The Plaintiff is the daughter of the deceased. She admitted, in her first affidavit, that she "had an estranged relationship with [the deceased] for approximately 23 years". She asserts that she "did not have a happy childhood and was subjected to physical, sexual and verbal abuse from [the deceased] from the age of 5". She provides examples of the type of abuse which she suffered at the hands of the deceased.
The Plaintiff, it would seem, wrote a poem, in Year 11 of High School, which, she says, depicted her relationship with the deceased. If what is written was true, it reveals a sad, indeed tragic, view of that relationship.
The Plaintiff lived with her parents until the age of 19 years, when she joined the Australian Army. Whilst in the Army, for 13 years, she did not see, or speak with, the deceased, although she kept in touch with her mother.
In 2007, she made contact, again, with the deceased, by telephone and by using a software application called Skype. They had telephone contact, for several months, thereafter, and during this period, he sent the Plaintiff a bottle of home made whisky and a compact disc. The telephone contact ended when the deceased telephoned the Plaintiff, when he sounded like he was intoxicated, and he abused her. They had no contact thereafter.
The Plaintiff explains that the deceased "has been the cause of much anxiety and mental illness during my life, and for my own preservation, I chose to avoid contact with" him. She was not cross-examined on this explanation for failing to remain in contact with him.
In order to support her explanation, the Plaintiff relied upon an affidavit of Dr Hedy Farmer, a Consultant Psychiatrist, who has treated the Plaintiff since 1999. Dr Farmer refers to being told of the sexual abuse of the Plaintiff by the deceased. She also refers to an incident, in 1994, when the Plaintiff, whilst working as an ambulance officer, was involved in a siege incident, as a result of which she developed Acute Post Traumatic Stress Disorder. A worker's compensation claim was settled. (I shall refer to Dr Farmer's reports later in more detail.)
The Plaintiff also relied upon a "Patient Referral and Report" of the Incest Survivor's Association, dated 4 May 1992, which refers to her suffering from Post Trauma Stress in regard to child sexual abuse", with "[H]er childhood experiences ... intruding into her present and will not allow her to push them aside any longer".
Mrs Russ indicated that she was "not aware of any physical, sexual or verbal abuse directed by [the deceased] at [the Plaintiff]". She also says that she had a close relationship with the Plaintiff, but that the Plaintiff did not raise any of the issues complained of with her. She states that the Plaintiff first made an allegation of sexual abuse to her in 1989.
As the Defendant acknowledged, the alleged sexual, and other, abuse of the Plaintiff by the deceased, whether it, in fact, occurred, has had a profound effect upon her. The medical evidence, which was not the subject of challenge, made that very clear. I am satisfied that in this case, what is important is the belief that the conduct occurred and that this provides the basis for the Plaintiff's conduct towards the deceased. (As requested by the parties, I make no finding about whether the abuse did or did not occur.)
I have earlier noted that, despite the period of estrangement and the allegation made against him by the Plaintiff, she remained a substitute beneficiary named in his Will. This demonstrates, despite the estrangement, that the deceased did regard the Plaintiff as a potential object of his testamentary beneficence.
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law.
It is not in dispute that from the time that she left home, the Plaintiff was in steady employment until about 2001 and, intermittently, from then until 2006.
However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is usually recognised in the case of a child.
The Plaintiff acknowledged that when she was in financial need, it was Mrs Russ, her mother, to whom she turned, and who regularly, and on a number of occasions, assisted her financially by making loans to her. In 2004, Mrs Russ wrote to her informing her that she would not provide further assistance.
The deceased did not assume any obligation or responsibility, towards the Defendant, as an adult. Between 1990 and 2007, the Defendant resided in the United Kingdom and appears to have been self-sufficient.
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have dealt with this earlier in this judgment. On any view, the deceased's estate is not a large one.
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
The Plaintiff is not employed. She receives a disability pension of almost $473 per fortnight.
The Plaintiff estimated her fortnightly expenditure at about $528. This includes gym membership ($28) and telephone expenses ($90). There is also a reference to the amount of $27 per fortnight paid to "Shiels Jewellers". This amount is said to be the repayment of the cost of "commitment rings" purchased by her and Ms Perring. (Ms Perring discloses that she also pays an equal amount.)
The assets that the Plaintiff has are shares ($1,493) and household contents (undisclosed value). She has no superannuation, savings or a car. She has liabilities being credit card, and other, debts ($9,101), and, presumably, the legal costs of these proceedings, or if successful, any difference between those costs calculated on the indemnity and the ordinary, basis.
Mrs Russ asserts that she loaned the Plaintiff $60,000 in about 1991, of which only $40,000 was repaid to her. The Plaintiff asserts that the $40,000 was paid to Mrs Russ "for safekeeping". (The amount, whether or $60,000, $40,000 or $20,000 is not said to be repayable by either the Plaintiff, or by Mrs Russ, to the other.)
The Plaintiff says that her "needs" are based upon the following:
(a) She would like to study geology at university. She had previously started the course (in 1984) but did not complete it. The course she has considered is a 3-year full time course, the costs of which she estimates to be about $31,000 (course fees). An additional amount of $105,000 for costs and expenses of studying calculated at $35,000 per year for 3 years) is also sought;
(b) She requires a fund to enable her to pay off her debts ($9,101) and the difference between costs calculated on the indemnity basis and costs calculated on the ordinary basis, of this claim which is about $2,000);
(c) a capital sum to pay for a home (in Tasmania) (between $220,000 and $240,000) and a car ($10,000 to $15,000);
(d) a buffer for contingencies of life (calculated at $5,000 per year for 39 years) or $195,000;
(e) It was submitted, in writing, prior to the hearing that the Plaintiff should receive a lump sum of about $675,000. Of course, as was pointed out by the Defendant, and accepted by the Plaintiff in oral submissions, that sum is greater than the net value of the estate available (there being no claim for designation of distributed property as notional estate).
The Defendant is the father of three children, one of whom currently lives with him and Ms Thorn. His other two children live in the United Kingdom with their mother. Previously, he would pay $800 per month by way of child support but has not paid that, or any amount, since last year.
The Defendant has disclosed assets, excluding the Medowie property, the shares and the balance of the case distributed to him, being a property in Ferny Hills, Queensland which is jointly held ($500,000), furniture and personal effects ($2,000), two cars ($40,000 and $2,000) and superannuation ($216,000). Their only liabilities are a mortgage debt ($475,500) and a credit card debt ($7,914).
In an affidavit filed in August 2010, the Defendant discloses his annual income, which is said to consist of wages earned in employment ($70,000) and rental income from the Medowie property ($1,200 per month gross). Ms Thorn has casual employment and earns approximately $35,000 per annum. He discloses their total weekly outgoings of about $1,827, or about $95,000 per annum. (This amount is reduced by $200 per week, or $10,000 per annum since the outgoings included the child support which is not, in fact, being paid.)
The value of any superannuation held, and other property owned by Ms Thorn was not disclosed even though the Defendant was cross-examined on the topic. The failure to disclose her financial and material circumstances, other than her income, and her interest in the Queensland property, is of some concern, especially since the competing claim of the Defendant is said to be a relevant consideration.
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
The Plaintiff is co-habiting with her de facto partner, Rebecca Louise Perring, who has sworn an affidavit, which was read in the proceedings. She and Ms Perring have been living together in a domestic relationship for about 3 years.
Ms Perring is unemployed and has not worked for those three years "due to physical and mental health issues". She receives a Newstart Allowance of $342 per fortnight net. Her estimated fortnightly expenses are almost $384. She has liabilities of about $18,400.
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
Dr Farmer states, in a report dated 19 April 2010:
"Her diagnoses now are of
(i) Chronic Post Traumatic Stress Disorder (related to both childhood sexual abuse and the incident described above);
(ii) Recurrent Major Depressive Illness;
(iii) Borderline Personality traits.
A different diagnosis of Bipolar Type II Disorder has been considered at various times.
Her current drug regime consists of:
Efexor XR 600mg daily
Epilim EC 2000 mg bd
Diazepam 5mg prn
Solian 400m bd
Imovana 1 nocte
Benztriopine 1mg daily
Her ability to maintain steady employment is severely compromised. She is in receipt of Centrelink benefits and suffers from financial hardship on an ongoing basis."
In a subsequent report, dated 10 March 2011, Dr Farmer opines:
"My current diagnoses are as in my previous report and her medications are unchanged.
I think childhood sexual abuse is a very significant factor in Ms Williamson's development of Borderline Personality Traits.
I consider Ms Williamson is totally unfit to work in any capacity.
I think she needs ongoing treatment with medication and regular psychiatric review.
I do not think she is currently capable of resuming studies full time or part time.
Her prognosis is poor in the long term both in terms of her mental health and her capacity to work or study.
I think her plan to move to Tasmania would be beneficial to her mental health as psychiatric services are readily accessible there and the cost of living is cheaper, which would provide some relief from chronic financial difficulties.
Stable accommodation would also benefit Ms Williamson in terms of her mental health as she would not have to deal with potentially difficult landlords, having to move house frequently and so forth."
The Plaintiff says that she is currently on medication and "quite well". Despite this assertion, the uncontested medical evidence leads me to conclude that she is currently not fit for employment and is unlikely to earn any significant income in the future.
I am also of the view that, whilst it might be what she hopes to do, and whilst this hope demonstrates a positive outlook held by the Plaintiff, the likelihood is that, at least currently, she is not capable of resuming studies.
The Defendant does not assert any physical, intellectual or mental disability.
(g) the age of the applicant when the application is being considered
The Plaintiff is presently 49 years of age. It is said that her life expectancy is 39.40 years.
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The Plaintiff does not identify any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased. Nor has it been suggested that the Plaintiff made any contribution to the deceased's welfare at any time after she left home.
Accordingly, this is not a relevant factor in the exercise of the court's discretion in this case.
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
The deceased made no provision, during his lifetime, for the Plaintiff. She receives nothing under the deceased's Will. (Some time was spent cross-examining the Plaintiff on the financial assistance provided by Mrs Russ, her mother. This is not a relevant matter under this heading and may only be relevant, if at all, on a matter discussed later.)
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
There is no evidence of the testamentary intentions of the deceased other than his Will, Probate of which was granted. It is interesting to note that even though there was a fissure in their relationship, the deceased did nominate the Plaintiff as the substitute beneficiary in his Will and left the whole estate to her in the event that the Defendant did not survive him.
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before his death after she left the home of her parents.
(l) whether any other person is liable to support the applicant
Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff.
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
The Act does not limit the consideration of "conduct" to conduct towards the deceased. There is nothing in the Plaintiff's conduct, otherwise, that would disentitle her to relief under the Act.
As will be read, I am satisfied, in this case, that the conduct of the Plaintiff towards the deceased does not disentitle her to relief under the Act. To his credit, the Defendant did not submit to the contrary.
(n) the conduct of any other person before, and after, the date of the death of the deceased person
It was not suggested that the relationship with the Defendant had, in any way broken down. He is the chosen object of the deceased's testamentary beneficence. There is nothing in the Defendant's conduct that is relevant.
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not relevant in the present case.
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
A matter that I think is relevant is the date of the deceased's Will (24 February 1988). The Will was made at a time when the Plaintiff was in secure employment in the Army. By the date of the deceased's death, and at the date of the hearing, the Plaintiff's financial and material circumstances and her state of health appear to be very different.
Although it could be relevant to other specific matters that the Court may take into account concerning family relationships, it is also necessary to consider the Plaintiff's contention that the deceased's conduct towards her contributed to her present emotional and mental state.
Effect of Estrangement
Because the Plaintiff and the deceased were estranged at the date of death, it is necessary for me to consider the effect of the estrangement on her claim.
In Andrew v Andrew [2011] NSWSC 115, at [73] - [74], I discussed the principles which apply in cases where a Plaintiff has been estranged from the deceased. I said:
"Estrangement of the Plaintiff and the Deceased
73 On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:
"[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
74 Because in this case there is an unusual factor that bears on the quality of the relationship, being that the Plaintiff and the deceased were estranged for many years, it is necessary to set out some other general principles which should be remembered:
(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the moral claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case ( Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33]).
(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361at [88]-[94]; Foley v Ellis [2008] NSWCA 288.
(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.
(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestley JJA agreed),
"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.""
In determining the cause of the breakdown of the relationship of the Plaintiff and the deceased, it must be recognised that the deceased is not present to give his response to the allegations made by the Plaintiff. It has been acknowledged ( Pontifical Society for the Propagation of the Faith v Scales at 20) that:
"The court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his".
I also weigh up the seriousness of the allegations. It cannot be doubted, however, that if the Plaintiff's allegations are true, then they certainly provide ample justification for her conduct and a sufficient reason for her not making any effort to contact the deceased during the period that she did.
I note, also, that despite her allegations, the Plaintiff attempted, in 2007, to resurrect the relationship, and reconcile, with the deceased, but again, so it is said, because of his conduct, was unable to maintain that attempt. She stated that it was only then that she felt that she was capable of forgiving him.
The Defendant does not advance the estrangement between the Plaintiff and the deceased as a matter that affects her entitlement to an order or to the nature of the order that might be made.
However, even if the deceased did abdicate his parental responsibilities for the Plaintiff during her childhood, and subsequently, and did act towards her in a way that justified her choosing not to have any contact with him, I should stress one other additional, and important, principle.
A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]. As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]:
"It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation."
Also, it is not the function of the court to provide a legacy, by way of damages, for abuse. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the Plaintiff should be measured: Cameron v Cameron [2009] SASC 27.
Equally, the Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 137.
This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466 at [57].
Determination
There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application.
As the Plaintiff's proceedings were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.
No provision was made for the Plaintiff in the deceased's Will. That adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both, is clear. She is in financial need. This is not in contest. It founds the basis of the Defendant's acceptance of the proposition that the Will fails to make adequate provision for the Plaintiff's proper maintenance and advancement in life and that "the real question to be determined in this case is what is the appropriate amount" to order for the Plaintiff.
Accordingly, the Plaintiff has satisfied the jurisdictional threshold.
I turn then to whether, as a matter of discretion, an order for provision should be made. In my view, the estrangement of the Plaintiff and the deceased should not be regarded as conduct that would extinguish, or even reduce, her entitlement to relief. If I had made a finding that her allegations of abuse were untrue, I might have taken a different view, but I have not made a finding on the issue of abuse.
The Plaintiff seeks an amount sufficient to enable her to purchase accommodation. In McGrath v Eves at [67], Gzell J, when considering the position of claims by adult children for provision from their father's estate, said that:
"When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father though there noting also that there is no special principle or rule which precludes such a claim by an adult child from making (citing Bryson J in Gorton v Parks at 7 and White J in Barbara Mayfield v Suzy Carolyn Lloyd-Williams (at [109]-[110]))."
I agree with what is said. However, in this case, I am of the view that I should allow an amount that will enable the Plaintiff to purchase, if possible, accommodation that is unencumbered or close to being unencumbered. Yet, I do not think that the type of accommodation (a 3 bedroom home) sought by the Plaintiff should be provided.
The amount to purchase accommodation, together with associated costs and moving expenses, I consider should be $220,000. (Of course, with the purchase of such accommodation, the Plaintiff will have a part of her share of rent ($120 per fortnight) available should there be a need for a mortgage.)
In relation to the costs of education, I must consider the evidence of Dr Farmer, who did not think that the Plaintiff, currently, was capable of resuming either full-time, or part-time, studies. I have earlier said that I accept that evidence, so I am not prepared to regard the amount she has claimed as a proven "need".
Additionally, the Plaintiff should receive a lump sum to enable her to pay off her debts ($9,000) and to purchase a car ($11,000). She has no superannuation, or other lump sum available, so a modest sum for exigencies ($40,000) would also be proper.
Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I order that the Plaintiff is to receive out of the estate of the deceased, a lump sum of $280,000. The burden of the provision should be borne by the Defendant.
In calculating the total lump sum, I have remembered that freedom of testation is an important right and that there is a competing claim of the Defendant. I have not disregarded that competing claim and/or the Defendant's interests in the estate even though he has not made an application for a family provision order.
The lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment. The total amount of the lump sum and any interest should constitute a charge on the Medowie property until it is paid.
The Defendant has submitted that if the Court were minded to make an order for provision, "this is a case in which it is appropriate that consideration be given to the imposition on any grant of provision of conditions like the appointment of a trustee to hold and manage the fund".
Reliance was placed on what Campbell JA said in Hampson v Hampson [2010] NSWCA 359:
"97 Ray v Moncrieff [1917] NZLR 234 concerned an applicant who was the only son of a deceased, who had been left the income of a sum of money, with the capital of that sum on his mother's death. The applicant was an able-bodied labourer, and "a chronic drunkard". Chapman J rejected the argument that the applicant should be treated as a man suffering from a chronic disorder, such as being maimed or insane. His Honour said, at 235:
"[I]t would be a novel use of the powers of this Act to relieve the son of his burdens when the only result would be to set free his resources to be spent in drinking. The Court in these cases is asked to make good some failure on the part of the testator to perform his duty. It seems to me he has most thoroughly endeavoured to do his duty towards the applicant."
98 Similarly, in Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported at 10) Young J (as his Honour then was) contemplated that:
"... if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty."
99 In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision.
100 I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement:
"If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time."
101 That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order ( Howarth v Reed , Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words "On the other hand, when one is considering what a wise and just testator would have done, ...". The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life.
102 There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2 ), namely, once jurisdiction is established, formulation of an order under the Family Provision Act. Some examples from the caselaw are collected and discussed in the appendix to this judgment."
In my view, there is nothing in the evidence that provides a basis for an order of the type proposed by the Defendant. This is not a case where the Defendant has proved that the Plaintiff is a spendthrift, or that she would otherwise waste the lump sum provided. She has, in any event, indicated, under oath, the purpose for which a part or all, of any provision would be used.
I have been requested to defer consideration of costs. I shall allow the parties an opportunity to consider these reasons for judgment and then if the issue of costs is not agreed, I shall list the matter for argument at a convenient date.
Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
I shall reserve further consideration in the event that there is any difficulty in these orders being complied with.
**********
Decision last updated: 30 March 2011
25
25
5