HUGHES v HUGHES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MEAGHER JJA 6 June 1989, 6 June 1989 [1989] NSWCA 102 Testator's Family Maintenance — Family Provision Act — Rights of an Adult Child Hope, Samuels and Meagher JJA In this matter the appellant is a nephew and theexecutor of the testator who died aged eighty-eight years on 16 August 1985, leaving an estate which in the circumstances at the date of hearing approximated $500,000. The respondent is a daughter and the only child of the testator. She was born on 15 February 1925. She left school at the age of fifteen years in 1940. After ten years she left for overseas and returned in 1952. She left a second time for overseas in 1954. In 1959 she returned and she left a third and final time in 1964. During the ten years after she left school and the two periods between her first trip overseas and her second trip overseas and between the second trip and the third trip she stayed at home and contributed to the family business in the normal way expected of a dutiful daughter. At the date of the hearing, therefore, she was a woman aged about sixty-four years. She was in indifferent health, suffering from both asthma and arthritis, neither of which will diminish in intensity in future. She had about a twenty year life expectancy and she was living in a very small room in a precarious way as licensee of a tenant, that room only being capable of access by walking up five flights of stairs. She told his Honour she wanted in future to have a house about eighty miles out of New York, modestly furnished, and a motor car. In the period from 1964 until the date of hearing she was employed principally in New York in a clerical job with the United Nations Organisations at an apparently modest salary. She is now not in any employment, though occasionally she does odd jobs to make ends meet. Her desires for the future are, as his Honour found, perfectly proper and realistic, and indeed somewhat modest. Her means at the date of hearing (which was 26 February 1988) were that she had savings in both the United States and in Australia plus gratuity, all of which amounted to $US175,000 odd. She was in receipt of income from an amount which seems to me to be miserable and the pension of a little over $US4,500 per annum. She was left a one-eighth share in a residue which as at the date of hearing would have been the amount of $24,500. The above figures are not exactly precise and they are subject to vagaries. One does not know what the state of the American economy will be in the future. One does not know what the inflation rate is and one does not know what the income tax situation of the lady will be, particularly as she will have to cope with three sets of taxes - Federal, State and City. Her relationship with her father must be mentioned. She was in all respects, as found by his Honour, a dutiful daughter, always willing to contribute whatever was required of her quite willingly in the establishment and maintenance of the house. Unfortunately, the same cannot be said of the father. Even bearing in mind 2 UNREPORTED JUDGMENTS that he obviously was not able to give his account of the story, it would seem on his Honour's finding that by heavy drinking of alcohol, combined with occasional violence, he made her life at home far from agreeable and indeed it was his behaviour in that regard which largely impelled her on her third trip abroad to make the decision to go permanently to New York rather than to return to Australia. His Honour found, and there was ample evidence to support it, nor was it contended to the contrary, that in the circumstances that was a perfectly reasonable and not unfamilial thing to do. The bulk of the testator's estate was left to his executor, Mr William Hughes, a nephew, who had certainly been extremely generous to the testator and the provision for him is to that extent not surprising. However, the provisions made for other nephews and nieces seem to have been dictated by generosity rather than duty. It is difficult on the evidence to see that he owed them any particular duty. Some of them certainly were in diminished circumstances and it is therefore with reluctance that one must come to the conclusion that their provisions have to be diminished in order to provide for the daughter. The first question which must be answered is whether the daughter/respondent was in need in the relevant sense of provision for her maintenance and advancement. His Honour found that she was and, in my view, that is clearly correct. It was, in my view, the most obvious duty on the testator to provide for her. The fact that she had somehow or other fended for herself for many years and was an adult does not negative the existence of that duty. The fact that during her twenty years abroad she had contributed little to her father's welfare does not deprive her of that right. Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the ten years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be. In my view, the testator's will displays the most obvious dereliction of duty. In my view, the sort of provision which should be made for her is a provision of the kind she had asked for; namely, some amount which would give her a house, furniture and a motor car. So much would be necessary to give her minimal security for the rest of her life, plus a further capital sum which can have the double function of providing her with an income adequate for her means and a capital sum as against contingencies, some of which seem to me likely to occur. In the end result, I am of the view that she both demonstrated a case for relief under the Act and an entitlement to a quantum much of the kind that his Honour ordered. As far as quantum is concerned, it is obvious enough that different minds may differ as to precise sums. Some judges may perhaps regard his Honour's ultimate order as a trifle too generous; others may even regard it as too mean and that she should have been entitled to the entire estate. But whatever we may think about that is, of course, irrelevant. The figure which his Honour arrived at was obviously well within the proper principles of his discretion. There is only one other matter I should like to add; namely, that there is no appeal in the present case on behalf of the executor vis-a-vis the residuary beneficiaries other than the respondent. It may be that the case could have been made that the other residuary beneficiaries should have suffered the burden of the URJ HUGHES v HUGHES (Hope, Samuels and Meagher JJA) 3 respondent's success to a greater extent than the appellant, Mr William Hughes. As that matter is not before us, I shall not remark on it. In my view, the appeal should be dismissed with costs. The orders of the court are as proposed by Meagher JA. The appeal will be dismissed with costs. There will be no special order for costs. Counsel for the Appellant: M Broun QC and DP Wilson Solicitors for the Appellant: Simpson and Co Counsel for the Respondent: J Hilton and MC Walker Solicitors for the Respondent: Law and Milne