Worsley v Solomon

[2008] NSWSC 444

CITATION:	Worsley v Solomon [2008] NSWSC 444
HEARING DATE(S):	20, 21 and 22 November 2007
JUDGMENT DATE :	9 May 2008
JUDGMENT OF:	McLaughlin AsJ
DECISION:	1. I order that, in lieu of the benefit given to her by the will of the late Alfred Keith Solomon (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 9 July 2008, and if not so paid to bear interest at the rates provided for unpaid legacies by the Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned.
CATCHWORDS:	SUCCESSION - family provision - claim by adult daughter - financial and material circumstances of Plaintiff - relationship between Plaintiff and Deceased - statements by Deceased in his will - such statements, whilst admissible need not be unquestionably accepted as true - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of Defendant - an order for provision is not made as a reward for services or good conduct - neither is it withheld as punishment for perceived bad conduct.
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES:	Robyn Anne Worsley (Plaintiff) Peter Robert Solomon (Defendant)
FILE NUMBER(S):	SC 5467 of 2006
COUNSEL:	Mr R. Wilson (Plaintiff) Mr J. Anderson (Defendant)
SOLICITORS:	Turnbull Hill Lawyers (Plaintiff) Wayne Boom (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 9 May 2008

5467 of 2006 ROBYN ANNE WORSLEY –v- PETER ROBERT SOLOMON

JUDGMENT

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

2 By summons filed on 25 October 2006 Robyn Anne Worsley claims an order for provision for her maintenance, education and advancement in life out of the estate and/or notional estate of her late father Alfred Keith Solomon (to whom I shall refer as “the Deceased”).

3 The Deceased died on 16 May 2006, aged 79. He left a will dated 2 May 2005, probate whereof was on 6 July 2006 granted to Peter Robert Solomon, the executor named in such will (who is the Defendant to the present proceedings).

4 The Plaintiff and the Defendant are two of the four children of the Deceased, being Robyn Anne (Mrs Worsley), who was born on 31 December 1952 and is presently aged 55; Jann (Mrs Cannon), who was born on 4 May 1959 and is presently aged 49; Judith (Mrs Rorke), who was born on 22 January 1963 and is presently aged 45; and Alfred Keith, who was born on 9 January 1965 and is presently aged 43.

5 The Deceased was unmarried at the time of his death. His former wife, Joan Florence Solomon, from whom he had separated in 1983 and divorced in 1986, had died on 23 November 1993.

6 The inventory of property discloses the following assets and the respective values attributed thereto,

House property situate at and known
as 14 Chauvel Crescent, Tuross Head $350,000
Money in bank account $87,466
1998 Nissan Sedan motor vehicle $3,000
Furniture and effects $5,000
Total $445,466

7 By his will the Deceased gave to the Plaintiff a legacy of $50,000 and gave to the Defendant the residue of his estate.

8 The will also contains the following,

5. I have specifically omitted my children JAN ELIZABETH CANNON and JUDITH MAREE RORKE from my Will and seek that they receive no benefit from my estate. I confirm that I have made this express statement that I have intentionally omitted JAN ELIZABETH CANNON and JUDITH MAREE RORKE from my will and some of the reasons that I have omitted them are as follows:
i. JAN ELIZABETH CANNON born 4 May 1959 married STEPHEN CANNON on 14 February 1981. So far as I am aware they are living at 9 Conmaroo Avenue, Nambour in Queensland. I have had no contact with my daughter JAN ELIZABETH CANNON since 1983.
ii. JUDITH MAREE RORKE born 22 January 1963 married HAYDEN IAN RORKE on 13 April 1991. I did receive an invitation to their wedding but was unable to attend as I was a patient at Moruya Hospital at the time of their marriage. I did convey the fact that I was in hospital at the time the [ sic ] marriage. Other than the invitation to the marriage I have had no contact at all with my daughter JUDITH MAREE RORKE since 1983. I have never met nor ever spoken to HAYDEN IAN RORKE nor had any contact with him in any form. I was informed by my son PETER ROBERT SOLOMON that he was informed by HAYDEN IAN RORKE that RORKE intends to contest my Will. I would seek that any contesting of my Will by JAN ELIZABETH CANNON and/or JUDITH MAREE RORKE be opposed by my Executor.

6. I have left the sum of $50,000.00 to ROBYN ANN [ sic ] WORSLEY as a specific bequest. I have left my daughter ROBYN considerably less than I have left to my son PETER ROBERT SOLOMON and such benefits to those two people are intentional. My daughter ROBYN ANN WORSLEY was born on the 31 December 1953 and married STEPHEN WORSLEY but STEPHEN died in approximately 1999 so far as I am aware ROBYN resides at 17 Mitchell Road, North Bondi. My daughter ROBYN has visited me once in the last 11 years as does occasionally phone. So far as I am aware ROBYN works as a Nurse.

7. I confirm that it is my intention that PETER ROBERT SOLOMON receive the great bulk of the assets contained in my estate and that my children JAN ELIZABETH CANNON and JUDITH MAREE RORKE receive no benefit and that my daughter ROBYN ANN WORSLEY receive the specific bequest of $50,000.00.

8. I came to see my Solicitor on the 2 May 2000 and specifically instructed him that I was worried about JUDITH MAREE RORKE , JAN ELIZABETH CANNON and /or ROBYN ANN WORSLEY contesting my Will. I stated that I was concerned that I would not be around to have my say in relation to the contesting of my Will. I have specifically instructed my Solicitor to put my wishes and my attitude in relation to any contesting of my Will be [ sic ] JAN ELIZABETH CANNON , JUDITH MAREE RORKE and/or ROBYN ANN WORSLEY into my Will so that my attitude is well known should my Will be contested.

9 It has been agreed the parties that the present value of the house property at Tuross Head is $375,000. In calculating the value of the estate available for distribution the costs of the present proceedings should be taken into consideration, since the Plaintiff, if successful, will normally be entitled to an order that her costs be paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to an order that his costs be paid out of the estate. It was estimated on behalf of the Plaintiff that her costs will total $47,700, whilst it was estimated on behalf of the Defendant that his costs will total $45,000 Accordingly, it is appropriate that I should proceed upon basis that the value of the distributable estate is about $378,000.

10 The Plaintiff who is a qualified nurse, was at the time of the hearing employed as a casual theatre nurse with the Sydney Eastern Eye Centre, averaging 20-26 hours a week, in which position she was receiving a salary of $557 net a week. However, she expected shortly after the hearing to commence in new employment as a dental nurse, working a four day week of 40 hours, in which position she expects to receive $860 net a week. In that position she will initially be employed on a trial basis.

11 The Plaintiff gave details of her outgoings, in a total amount of about $3,900 a month. The Plaintiff meets the shortfall between her income and her outgoings by redrawing about $2000-$3000 each year from the her mortgage.

12 The Plaintiff’s assets consist of:

House property situate at and known as 17 Mitchell Street, North Bondi (being a semi-detached dwelling house), having an estimated value of $700,000
Toyota Corolla 1997 motor vehicle,
having an estimated value of $5000
Bank account minimal balance
Personal property, including furniture
and household items, to which was ascribed a
a total estimated value of $20,000
Superannuation entitlement with AMP $51,718

13 The Plaintiff’s liabilities consist of a mortgage debt on the Mitchell Street property, in an amount of $121,682, indebtedness to David Jones in an amount of $171 and indebtedness to a friend for $5850.

14 The Plaintiff, who is a widow, has two children, being Benjamin, (who is presently aged about 20) and James (who is presently aged 25). The Plaintiff’s husband died suddenly of a massive heart attack in 2000. The Mitchell Street property had been acquired by them in about 1980, shortly after their marriage in 1979. I gather that that property devolved upon the Plaintiff by survivorship. The Plaintiff’s son Benjamin presently resides with her and contributes amounts of between $60 and $80 a week towards household expenses. However, he is contemplating matrimony and is considering moving out of the family home. James, who lives and works in Western Australia, is not dependent upon his mother, although she gives him some financial assistance from time to time.

15 The Plaintiff explained the circumstances which gave rise to the mortgage on the Mitchell Street property. In about 2000 the Plaintiff and her husband took out a mortgage loan of about $250,000, with a view to carrying out repairs, renovations, and an extension on their residence (which I gather at that time was unencumbered). That was shortly before the unexpected death of the Plaintiff’s husband, and before any of those repairs or renovations had been carried out. Accordingly, the Plaintiff repaid most of those borrowed funds, retaining only about $80,000, which she used to consolidate various debts (including credit card debts and personal loans) and to cover other expenses, including her husband’s funeral. The mortgage loan is for a period of 25 years. As has already been recorded, the Plaintiff has been in the habit of increasing that loan each year, in order to meet the shortfall between her income and her outgoings.

16 The Plaintiff gave evidence concerning various repairs and renovations which are presently required to her house property. She provided quotations for carpeting, painting and building work, in amounts totalling about $88,000.

17 Concerning the Plaintiff’s financial and material circumstances, it is relevant here to record that the Plaintiff has not yet been paid the legacy of $50,000 given to her by the will of the Deceased. According to the solicitor for the Defendant, the reason is that the Plaintiff’s own solicitor required, and obtained, from the Defendant an undertaking that there would be no distribution of the estate until the present proceedings were finalised.

18 Shortly before the commencement of the proceedings the Plaintiff had received a severance payment of $22,810 from her former employer in December 2006 (that payment representing annual leave and long service leave, accumulated over a period of more than 11 years). The Plaintiff expended that sum by paying $10,000 off her mortgage debt, purchasing a computer for her son James, repaying a debt of $2,500, to a friend to whom she owed money, and expending the remainder of those funds on general living expenses and general medical expenses.

19 The Plaintiff suffers a number of serious health problems. These include dental problems, for which she may require dentures, or, preferably, implantations in the future. (If the latter, the cost of such dental treatment will be in the order of $20,000 - $30,000.) She suffers from osteoarthritis and is in constant pain on that account. That condition limits the Plaintiff’s activities, and her ability to carry items such as shopping bags. In June 2006 the Plaintiff had surgery to both her feet on account of her osteoarthritis. She also has suffered from a prolapse of the uterus, and underwent a hysterectomy in 2003. The Plaintiff in addition suffers from a prolapse of the bladder.

20 After obtaining her Higher School Certificate the Plaintiff, aged 17, commenced nursing training in 1970 at the Royal Prince Alfred Hospital, where she resided at the nurses’ home, until she qualified in 1973. She maintained contact with both her parents after they separated and subsequently divorced.

21 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. In the circumstances of the instant case the only such competing claim is that of the Defendant. That claim was recognised by the Deceased, who by his will gave to the Defendant the residue of his estate, after payment of the legacy of $50,000 to the Plaintiff. Neither of the other children of the Deceased, although served with a notice claim, has made any claim against the estate of the Deceased.

22 The Defendant, who was formerly a sales representative receiving a gross salary of $51,000 a year (as well as the use of a motor car and a mobile telephone), has in recent times commenced new employment as an assistant manager employed by Woolworths Australia Limited at Bateman’s Bay, receiving a gross salary of $60,000 a year. The Defendant, who is married, has one child, a daughter born on 13 January 2007. His wife has two school-age children of an earlier relationship, who spend part of their time with her.

23 The Defendant and his wife have the following assets,

House property situate at and known as 43 Madison Way, Allambie Heights
Toyota Tarago motor vehicle (owned by Defendant’s wife) $3000
Account with Commonwealth Bank of Australia $1800
Cheque account with Commonwealth Bank of Australia $700
Superannuation account, BT Australia about $46,000
Household contents and personal effects of negligible value

24 The house property at Allambie Heights is a three bedroom brick veneer cottage. The Defendant and his wife attempted to sell that property in 2006. However, the highest offer which they received during that period was $650,000, and they withdrew the property from sale due to the imminent birth of their daughter.

25 In October 2007, very shortly before the trial of the present proceedings, the Defendant and his family removed from Allambie Heights to the estate property at Tuross Head. The evidence indicates that the Defendant is uncertain what he will do with his Allambie Heights residence. He said that that will depend upon the outcome of the present proceedings.

26 The Defendant and his wife have the following liabilities,

Mortgage debt owing to Commonwealth Bank of Australia $320,000
Credit card indebtedness:
Visa Gold Card $15,000
Master Card $4,600

(the foregoing credit cards relate to the florist business conducted by the Defendant’s wife)

Woolworths EasyBanking credit card $5,800
Vambucca Brothers, wholesale flowers supplier $3,000

27 The florist business conducted by the Defendant’s wife is running at a loss of about $200 a week. That business was in the process of being disposed of at the time of the hearing of the proceedings.

28 The Defendant provided details of his outgoings which (excluding the expenses of the florist shop) total $4,935 a week. The Defendant also gave details concerning repairs and renovations which are required to his residence.

29 As I have already observed, neither of the Deceased’s other children, although served with a notice of claim, has made any claim for an order for provision out of the estate of the Deceased. Accordingly, it is only the competing claim of the Defendant which needs to be considered.

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

31 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court filed.

32 The Plaintiff, as a daughter 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 she has the standing to bring the present proceedings. It will be appreciated that the Defendant also is an eligible person, being such within same paragraph of the foregoing definition. For completeness, it should also be recorded that the only other eligible persons in relation to the Deceased are the Deceased’s other two children.

33 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208–210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance.

34 A very considerable quantity of evidence was directed to the relationship between the Plaintiff and the Deceased and to the statements made by the Deceased in his will concerning his respective relationships with the Plaintiff and with the Defendant (and also with his other two children).

35 Those statements are admissible pursuant to section 32 of the Family Provision Act. However, it will be appreciated that the fact that a statement is made by the testator does not necessarily mean that that statement must unquestionably be accepted as true. A statement of a testator may be just as inaccurate or as unreliable as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth. In the instant case the evidence of the Plaintiff, which is supported by that of each her two sons, and by various photographs and cards, as well as by records of telephone calls, totally contradicts the statement made by the Deceased in clause 6 of his will concerning the frequency of contact between the Plaintiff and himself during the period of 11 years preceding his will (that is, from 1994, to 2005). I prefer the evidence of the Plaintiff and her sons concerning the frequency and nature of the Plaintiff’s contact with the Deceased, rather than the statement made by the Deceased in clause 6 of his will.

36 Much evidence was also presented concerning events which occurred after the death of the Deceased (especially the obsequies of the Deceased). It should be emphasised that the central issues in the proceedings are whether the Plaintiff has been left without adequate provision for her proper maintenance and, if so, what (if any) order for provision should be made by the Court in order to remedy any omission in that regard on the part of the Deceased.

37 Most of the foregoing evidence concerning the relationships between the Plaintiff and the Deceased and between the Deceased and various of his kinsfolk and neighbours (especially after, in retirement, he had removed from Sydney to Tuross Head in about 1986) was of little relevance to the determination of the claim of the Plaintiff.

38 It should also here be emphasised that an order for provision is not made as a reward for services and good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of the applicant.

39 In this regard, it is appropriate to bear in mind the following salutary admonition of Windeyer J, in the High Court of Australia, in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case.

40 The relationship between the Plaintiff and the Deceased was not a particularly good one. The Plaintiff gave evidence of the Deceased’s drinking habits and of his verbal (but not physical) violence, largely resulting from those habits. There was much evidence concerning the extent of the Plaintiff’s contact with the Deceased after he removed to Tuross Head and the accuracy of the statement in that regard made in the will of the Deceased. Nevertheless, I am satisfied the Plaintiff endeavoured to be a dutiful daughter to the Deceased, so far as he allowed her to be such.

41 The significant health problems of the Plaintiff not only have resulted in her incurring, and being likely in the future to incur, substantial financial cost, but they also are likely to affect her ability to continue indefinitely in full-time employment. If she were no longer able to continue in employment, the Plaintiff would have no possibility of servicing her mortgage debt, let alone of effecting any of the necessary repairs or renovations to her residence. If that mortgage debt could be discharged, or significantly reduced, her monthly outgoings would be substantially reduced. Her present mortgage repayments are in the amount of $1080 a month. The legacy to the Plaintiff of $50,000 is not sufficient to discharge her mortgage debt, or even to make a significant inroad into the amount outstanding thereon. Indeed, were she to use even half of that legacy in reduction of the mortgage debt, the balance of the legacy would not be sufficient to repay her other liabilities and to meet the cost of necessary dental and medical treatment.

42 I am satisfied that in consequence of her receiving a legacy of only $50,000 the Plaintiff has been left without adequate provision for her proper maintenance.

43 The Plaintiff is entitled to receive from the estate of the Deceased a legacy which will enable her to effect a significant reduction in the amount of her mortgage debt, to repay her other debts, to undergo necessary dental and medical treatment, and to effect the most urgent repairs and renovations to her residence. If possible, the Plaintiff should also be left with a small fund to meet unforeseen contingencies.

44 I am satisfied that, for the foregoing purposes, the Plaintiff has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $150,000.

45 If the Plaintiff were to receive a legacy of $150,000 (instead of a legacy of $50,000), the Defendant would receive the residue of the estate, in an amount of about $228,000 (instead of receiving, under the terms of the will, the residue in an amount of about $328,000).

46 It will be appreciated that the payment of a legacy of $150,000 to the Plaintiff will require the Tuross Head property to be sold, unless, of course, the Defendant is desirous of remaining in occupation of that property. In such case it will be necessary for him to raise the amount of the legacy from his other assets. I observe, in this regard, that he and his wife have an equity of at least $330,000 in their Allambie Heights property. (It should also here be recognised that it is probable that, in any event, the Tuross Head property will require to be sold, in order to meet the costs of the present proceedings. It was estimated that those costs will total $92,700, whilst the other assets of the estate, apart from the Tuross Head property, have an estimated total value of about $95,900, and I query whether that total value could, in fact, be realised from those assets).

47 The competing claim of the Defendant (who is the chief chosen object of the testamentary beneficence of the Deceased) is not such as would, in my conclusion, have the effect of reducing, let alone extinguishing, the entitlement of the Plaintiff to receive a legacy in the proposed sum of $150,000, rather than the legacy of $50,000 given to her by the will of the Deceased. The Deceased will still receive the residue of the estate, but in an amount of about $228,000, rather than about $328,000.

48 Accordingly, I make the following orders:

1. I order that, in lieu of the benefit given to her by the will of the late Alfred Keith Solomon (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 9 July 2008, and if not so paid to bear interest at the rates provided for unpaid legacies by the Probate and Administration Act 1898.
2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
3. The exhibits may be returned.

**********