Willis v Willis

[2003] NSWSC 304

CITATION:	Willis v Willis [2003] NSWSC 304
HEARING DATE(S):	26 November 2002
JUDGMENT DATE:	15 April 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that the summons be dismissed; (2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis; (3). I order that the Defendants be entitled to be paid out of the estate of the late Brenda Willis ("the Deceased") the difference between the costs of the Defendants on the indemnity basis and the amount of the aforesaid costs which they may recover from the Plaintiff; (4). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult son - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for his proper maintenance - Competing claims of other beneficiares.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Keith Willis (Plaintiff) Brian Willis (First Defendant) Sandra Anne Hope-Johnstone (Second Defendant)
FILE NUMBER(S):	SC 2377/01
COUNSEL:	M. Willmott (Plaintiff) L. Ellison (Defendants)
SOLICITORS:	Turnbull Hill Lawyers (Plaintiff) Paul Ward-Harvey & Co, Solicitors (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 15 April 2003

2377/01 KEITH WILLIS -v- BRIAN WILLIS and ANOR

JUDGMENT

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

2 By summons filed on 30 April 2001 Keith Willis, the Plaintiff, claims an order for provision for his maintenance, education and advancement in life out of the estate and/or the notional estate of his late mother, Brenda Willis (to whom I shall refer as “the Deceased”).

3 The Deceased died on 28 August 2000, aged 68 years. She left a will dated 15 February 1992, probate whereof was on 4 April 2001 granted to Brian Willis and Sandra Anne Hope-Johnstone, the executors named therein (who are the Defendants to the present proceedings).

4 The assets of the estate disclosed in the inventory of property consisted of a residential property situate at and known as 1/11 Dural Street, Hornsby (to which an estimated value of $295,000 was ascribed), jewellery and other chattels (to which an estimated total value of $5,000 was ascribed), a Toyota Corolla motor car (having an estimated value of $8,000) and a superannuation entitlement of $64,000.

5 All the foregoing assets have now been realised, and the Defendants currently hold an amount of $380,800 in a cash management trust. There is a prospective income tax liability of $800 in respect to the income earned by the foregoing amount.

6 It will be appreciated that in calculating the amount available for distribution the costs of the present proceedings must be taken into account. The costs of the Plaintiff are estimated to total $30,000, whilst those of the Defendant are estimated to be in the vicinity of $20,000. In consequence, therefore, the value of the distributable estate will be in the order of $330,000.

7 The Deceased, who had been divorced from her husband in 1982, was survived by her four children, being the Plaintiff, the two Defendants and Kristine (referred to in the will as “Christine”) (Mrs Gailey).

8 The Deceased by her will gave her jewellery and other chattels in accordance with a list attached to the will. She gave a legacy of $20,000 to the Plaintiff, and the residue of the estate equally among her other three children, being Brian, Sandra (Mrs Hope-Johnstone) and Kristine.

9 Clause 5 of the will is in the following terms:

I HEREBY DECLARE that my son Keith has already received sufficient and adequate assistance from his father and that I have made provision for him accordingly and in light of those circumstances, in this my Will.

10 The Plaintiff was born on 22 February 1964, and is presently aged thirty-nine. He was the third of the four children of his parents. The Plaintiff left school in 1982, having completed his education at Asquith Boys High School. In 1983, when he was aged eighteen, the Plaintiff was involved in a motorcycle accident, in which he sustained a broken femur and a broken ankle. The following year he commenced apprenticeship as a fitter, welder and machinist.

11 In 1993 the Plaintiff’s father, John Willis, gave to the Plaintiff a parcel of land at Berkeley Vale, upon which the Plaintiff, with the assistance of a loan, constructed a house. The cost of construction of the residence upon the Berkeley Vale property was $70,000. The Plaintiff borrowed that amount, which was secured by mortgage. There is presently an amount of $52,000 outstanding upon that mortgage.

12 In addition to the house property at Berkeley Vale in which he resides (and to which a present value of $250,000 is attributed), the Plaintiff also owns an investment property at Swansea (to which a value of $250,000 is also attributed). Each of those properties is subject to a mortgage ($52,000 in the case of the Berkeley Vale property, and $222,000 in the case of the Swansea property). The Plaintiff has a credit card debts of $4,700, and he is indebted in his bank account to the extent of about $9,000 (although at the commencement of the proceedings that account was $3000 in credit).

13 As well as the two pieces of real property, the Plaintiff’s assets include a 1984 Ford Laser motor vehicle (to which a value of $2,000 is attributed). At the commencement of the proceedings the Plaintiff owned five motorcycles (two being described as antique motorcycles), to which he attributed a total value of $45,000. However shortly before the hearing he disposed of one of those motorcycles for $1,000. Although the Plaintiff estimates that his personal property (consisting of furniture, a computer, a stereo, and the like) has a value of about $20,000, it is insured for $50,000 (that, apparently, being its replacement value). In addition, the Plaintiff has superannuation entitlements totalling almost $12,600.

14 The Plaintiff is unmarried. He is presently employed as an automotive supervisor by Auto-Bake Pty Limited. The Plaintiff’s gross income from his employment and from the rentals which he receives from the Swansea property is $52,110 gross ($42,000 net).

15 The Plaintiff suffers from osteoarthritis in his left leg, resulting from injuries which he sustained in the motorcycle accident when he was aged eighteen. He said that he experiences constant pain, particularly in cold weather. However, he does not receive specific medical treatment for his condition, and takes no medication other than anti-inflammatory tablets. The Plaintiff stated that he was concerned that, on account of the fact that he is sometimes required to perform heavy physical work in the course of his employment, he will in future be restricted in his work activities. To the present time, however, he has not experienced any such restriction.

16 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings.

17 It will be appreciated that each of the Defendants and their sister Kristine is also an eligible person within paragraph (b) of the definition.

18 The only other eligible person in relation to the Deceased is John William Robert Willis, the former husband of the Deceased, who is an eligible person within paragraph (c) of the definition. There was placed in evidence the notice of claim which had been served upon John William Robert Willis. That notice of claim bore the following endorsement signed by Mr Willis,

I JOHN WILLIAM ROBERT WILLIS of 13/33 Addison Road, Manly hereby acknowledge receipt of the above form of Notice and confirm that I do not wish to exercise any rights which I may have against the Estate pursuant to the provisions of the Family Provisions [ sic ] Act, 1982. I do not want anything from the Estate.

19 Brian Willis is the eldest child of the Deceased. He was born on 6 February 1952 and is presently aged fifty-one. He is unmarried and has no dependents.

20 Brian is employed as an IT&T procurement supervisor by Nationwide News, receiving a gross income of $60,678.

21 Brian’s assets are as follows:

House property at 9 Munro Street, Eastwood (having an estimated value of $465,000)
Investment unit at 6/11 Dural Street, Hornsby ($295,000)
St George Bank ($3,500)
Personal property ($20,000)
News Ltd superannuation entitlement ($62,000)

22 Brian has a Visa card indebtedness of $1,800. The Hornsby property is subject to a mortgage of $104,600, upon which he pays interest of $7,280 a year.

23 Brian stated his intention to use his share of the estate of the Deceased to discharge the mortgage loan on the Hornsby unit ($104,600), to perform various other repairs and renovations to his residence and to the Hornsby unit (totalling $14,000) and to purchase a second hand motor car ($10,000).

24 Sandra Hope-Johnstone is forty-four years of age. She resides with her husband and their two daughters (aged thirteen and nine) in a residence owned by herself and her husband at 22 Rozella Road, Empire Bay (to which she attributes an approximate value of $250,000). Sandra is employed as a casual dispensary assistant in a pharmacy, working usually about twenty hours a week. In the last financial year her annual gross income was about $20,000. Sandra’s husband is employed as a security guard at the Royal North Shore Hospital. His gross income for the last financial year was about $40,000. The only other significant assets of Sandra and her husband are a combined superannuation entitlement of $22,000 and a 1994 Holden Commodore motor vehicle (which is currently insured for $13,000). Their Empire Bay residence is unencumbered.

25 Two years ago Sandra was diagnosed with breast cancer and underwent surgery, followed by radiotherapy. She is now required to have annual checkups for the remainder of her life.

26 Kristine Gailey (who was born on 17 January 1971 and is presently aged thirty-two) is married and resides with her husband and their child. She works part time. For the last financial year the net income of Kristine and her husband was about $61,000. Kristine commenced university studies in 2002, for which she pays fess of about $500 a subject. Kristine estimates that the total value of her home and contents is $470,000. That house property is subject to a mortgage in an amount of $350,000.

27 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the present claim of the Plaintiff.

28 I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

29 Evidence was given concerning the nature of the relationship between the Plaintiff and the Deceased. It is a fair summary of that evidence that, according to the Plaintiff he had a good and close relationship with his mother whom he saw both frequently and regularly, and that he and his mother got on well together whilst he was residing with her. The evidence of the Plaintiff’s brother and two sisters is to the contrary. They gave evidence of statements by the Deceased concerning the conduct of the Plaintiff whilst he was residing with her (including instances when she said that he had struck her, occasions when he was drunk, occasions when he brought his “bikie friends” to the Plaintiff’s residence and when they refused to leave at her request). They gave evidence of the Deceased’s sadness and disappointment at the criminal activities of the Plaintiff and the fact that he had served a gaol sentence, as well as a further sentence of periodic detention (which he did not divulge to the Deceased). Details of the Plaintiff’s criminal record were placed before the Court.

30 Nevertheless, the evidence discloses that the Deceased, despite all the shortcomings of the Plaintiff, said that she still must regard him as her son and still must love him.

31 Since the evidence of the Plaintiff on the one hand and that of his brother and sisters on the other hand is totally inconsistent concerning his relationship with the Deceased, it is appropriate that I should express my views concerning the credit of the Plaintiff, his brother and his two sisters, all of whom gave evidence by affidavit and were cross-examined.

32 Quite apart from the Plaintiff’s sorry criminal record and the fact that he clearly chose to follow a life manifesting disrespect of authority and the legal requirements of a good citizen, I was most unfavourably impressed by the Plaintiff in his responses under cross-examination. Many of his answers were deliberately evasive. He was caught out on what can only have been a deliberate lie in his primary affidavit (that of 15 January 2002), where in paragraph 6 he volunteered the statement concerning the relationship between himself and his mother, “We never argued”. That statement was conceded by him in the witness box to be false. He attempted to explain it as “a bit of a normal statement, I suppose”.

33 Where the evidence of the Plaintiff is inconsistent with that of any of the other witnesses, I prefer the evidence of the other witnesses and reject that of the Plaintiff.

34 I am satisfied that the Plaintiff had a poor relationship with his mother. Upon the separation of his parents he preferred to throw in his lot with his father.

35 Although the Plaintiff resided with the Deceased for some time until the residence on the Berkeley Vale property was constructed, nevertheless the relationship between mother and son was far from harmonious.

36 The evidence satisfied me that the Deceased was sorely disappointed in her younger son, especially on account of his criminal record and the fact that he had spent some time in gaol.

37 It reflects no credit upon the Plaintiff that there appeared to be some attempt on his part to justify his conduct by offering implicit criticism of the Deceased for her asserted failure to provide him with counselling or professional assistance regarding his criminal activities. It says much for the forbearance of the Deceased that, despite all the Plaintiff’s shortcomings and despite her disappointment in his conduct and lifestyle, the Deceased continued to recognise him as her son and made in his favour testamentary provision which cannot properly be regarded as being either paltry or negligible.

38 In performing the first stage in the two stage process identified by the High Court of Australia is Singer v Berghouse (1994) 181 CLR 201 at 208, it is necessary to establish whether the Plaintiff has been left with adequate provision for her proper maintenance.

39 The Plaintiff is secure in his residence at Berkeley Vale. He owns an investment property at Swansea (which he purchased after the death of the Deceased). The financial arrangements concerning that investment property were that it was an instance of what is known as negative gearing, the totality of the purchase price being borrowed by the Plaintiff. That property produces for him an income of $200 a week.

40 The Plaintiff is secure in his employment. The details of expenditure set forth in the Plaintiff’s affidavit evidence indicate that he enjoys a comfortable lifestyle. His income exceeds his expenditure, and enables him to spend on average $80 a week on entertainment, $40 a week on liquor, $40 a week on cigarettes and $10 a week on video hire.

41 The Plaintiff expressed a desire to acquire a new motor vehicle. He said that he would like an automatic motor vehicle because his present motor car has manual transmission, and that the constant use of his left leg on that account aggravates the physical condition resulting from his leg injury. The Plaintiff said that he believed that he could purchase a suitable automatic motor vehicle for about $19,000. However, it should be observed that until very recent times he had been prohibited by law from driving a motor vehicle.

42 The Plaintiff also said that if he were to receive further provision out of the estate his financial priority would be firstly to substantially reduce his debt to the bank and secondly to finish the construction of the Berkeley Vale house. He estimated that to complete the driveway would cost $7,000 and to carpet the interior of the residence would cost about $5,000.

43 The Plaintiff is entitled to a legacy of $20,000 from the estate of the Deceased. Had he not chosen to institute the present proceedings (with the concomitant costs liability), that $20,000 legacy would have enabled him to pay off his bank overdraft ($9,000) and credit card debts ($4,700). With the balance of over $6,000 he either could have carpeted the interior of the Berkeley Vale house ($5,000) or could have gone a considerable way to completing the driveway at that property ($7,000).

44 Even in the circumstances as they presently obtain, where the Plaintiff’s costs of the present proceedings exceed the amount of his legacy, the Plaintiff, if concerned to extinguish his indebtedness to the bank and his credit card debts, needs only to sell some of his remaining four motorcycles ( which, after the recent sale of one of those cycles for $1,000, would appear to have a total value of $44,000).

45 It is abundantly obvious that the Plaintiff has not been left with adequate provision for his proper maintenance.

46 The foregoing conclusion is, of itself, sufficient to dispose of the claim of the Plaintiff.

47 But even if (contrary to my foregoing conclusion) I were satisfied that the Plaintiff had established relevant need and that he had been left without adequate provision for his proper maintenance, it would be necessary for me to consider the competing claims of the other three children of the Deceased. They are the chosen objects of the substantial testamentary beneficence of the Deceased. Each of those three beneficiaries has some significant need. Brian and Kristine each have significant mortgages on their residences, whilst Sandra has suffered from a significant health problem, which will require to be monitored for the rest of her life.

48 The competing claims of the chosen objects of the testamentary beneficence of the Deceased are such that I would not be disposed to reduce the entitlement of any of those beneficiaries under the will of the Deceased by making an order for provision in favour of the Plaintiff even if (contrary to the conclusion which I have already expressed) I were to be persuaded that the Plaintiff had established any relevant need.

49 It follows, therefore, that the Plaintiff’s claim must be dismissed.

50 I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.

(3). I order that the Defendants be entitled to be paid out of the estate of the late Brenda Willis (“the Deceased”) the difference between the costs of the Defendants on the indemnity basis and the amount of the aforesaid costs which they may recover from the Plaintiff.

(4). The exhibits may be returned.

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Last Modified: 07/10/2003