Turner v Riviere [1999] NSWSC 1266

New South Wales Supreme Court CITATION : Turner v Riviere [1999] NSWSC 1266 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1012/97 HEARING DATE(S) : 26 October 1999 JUDGMENT DATE : 26 October 1999

Rosanne Olive Turner (Plaintiff) PARTIES : Craig Raymond Riviere (Defendant) JUDGMENT OF : Acting Master Berecry

Mr M Anderson (Plaintiff) COUNSEL : Mr R Weinstein (Defendant) N J Papallo & Co (Plaintiff) SOLICITORS : Peter Bouzanis & Associates (Defendant) CATCHWORDS : Limit of court power; unfulfilled expectations of deceased; competing needs of infant beneficiary ACTS CITED : Family Provision Act 1982 CASES CITED : Kleinig v Neal (1981) 2 NSWLR 532 DECISION : See para 38

13

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING MASTER BERECRY

TUESDAY, 26 OCTOBER 1999

1012/97 - ROSANNE OLIVE TURNER v CRAIG RAYMOND RIVIERE - ESTATE OF LILLIAN BERYL McCOSKER

JUDGMENT

1 MASTER: This is an application brought under s 7 of the Family Provision Act. The plaintiff is the daughter of the deceased and in fact she was the only child of the deceased. Therefore under s 6 (1)(b) she qualifies as an eligible person, being a child of the deceased. 2 The estate is not a small estate but it is not large either. It, like many estates, does not have a great deal of flexibility. The major asset is a residential property at Lane Cove and there is also a sum of money in the bank, approximately $35,000, and the contents of the house at Lane Cove. 3 The testatrix made a number of wills but the relevant will is the one which was granted probate on 8th September 1998. The provision that she made in her will was that her grandchildren were to receive any proceeds of sale of the Lane Cove property and those proceeds were to be divided equally between them. The residue of the estate, that is the contents of the property and the monies in the bank account, were to go to Megan Riviere. 4 As at 30 June 1999 in round figures the estate was worth $388,000. Evidence put on this morning by the solicitors for both parties is that the combined costs of the parties is a little under $44,000. That leaves the net value of the estate as just under $325,000. 5 The parties agree and in fact part of the plaintiff's evidence is that she did not have a good relationship with her mother. On behalf of the plaintiff it has been submitted that I should treat some of the defendant's evidence as gilding the lily so far as the plaintiff's relationship with her mother is concerned and the deceased's relationship with her niece. 6 I found Mr Riviere's evidence to be forthright and I don't think she was shaken on her evidence and therefore I accept that evidence. It seems to me that the evidence she gave in the witness box and the evidence contained in her affidavits is wide enough to accommodate two views about her relationship with her aunty, the deceased, and her attendances on her aunty. In my view it is clear that when one has regard to the period of time that is covered by the affidavits, it would be difficult to give evidence precisely of the time and date when there was an attendance on the deceased. I treat the evidence as going no higher than saying that generally speaking, at Christmas time there were visits. By that I take it to mean that, as the executor and as Mrs Riviere said in her evidence, over the Christmas period they would see the deceased, not necessarily on Christmas Day but on certain occasions it was on Christmas Day. So I do not find that there is a great degree of conflict in the evidence that they gave and the evidence that was given by Mrs Smith. 7 So far as the conversations in relation to the plaintiff are concerned, I accept that evidence with some reservations. I do not necessarily form the view that the evidence is put on with a view to colouring these proceedings in favour of Mrs Riviere, but, once again, with the passage of time I accept that people generally do not have a completely accurate recollection of exact conversations. Both the plaintiff and Mrs Riviere were fairly firm in their evidence about attendances at the plaintiff's place at Tregear. It is difficult to know which version to accept. At the end of the day I don't think it matters, in any event. 8 The plaintiff in her affidavit of 12 December 1996 at paragraph 48 states that she did not have a close relationship with her mother. There was also evidence of that during the course of this hearing. There has been evidence about the nature of the deceased, that she was a fairly forthright person who had very firm views about matters and did not brook any opposite view. It would appear that for much of the plaintiff's adult life there was a state of conflict between the mother and the daughter. 9 There is evidence, once again from the plaintiff, that would suggest that her mother's expectations that she had of a daughter had never been met. There was comparison between the plaintiff and the niece, a comparison which was wholly unfavourable towards the daughter. There is also exhibit 1: the manner in which the deceased signed it indicated a certain disappointment towards the plaintiff and the sense of a total failure of her expectations of the daughter. 10 That in part is the background to their relationship. The relationship appears to have had other problems in later adolescence. This does not seem to be contested, but the evidence is that the mother expected the daughter, the plaintiff, to stay at home and look after the parents until they passed on. There seems to have been some conflict within the family about the plaintiff's intended marriage. That appears to have been on two bases: once again, the forsaking of the parents and their needs and secondly the sectarian aspect. 11 The plaintiff and her then husband purchased the property at Tregear in the late 1970's. They had a family and the plaintiff is continuing to live in the former matrimonial home with the youngest child of the marriage. The plaintiff does not drive and has not worked since the birth of her first child. The reason why she has not worked and did not work at that stage, she says in her affidavit, is that she wanted to be a full time housewife and mother. That, to me, seems to be a perfectly reasonable position to take. 12 It is suggested that now that Elizabeth is fourteen and capable of taking care of herself on a day to day basis other than the provision of her cooking and laundry, the plaintiff should be back out in the work force. Having seen the plaintiff in the witness box, if there were no other evidence, I would be very surprised if the plaintiff could compete in the open work market. She is a lady who is fifty four years of age and even if she were in robust health, at that age, having been out of the work force for the period of time that she has, she would have difficulty in obtaining employment. She does have some skills, shorthand and typing. She has not used those skills for almost a quarter of a century. She has put on evidence and once again it is not contradicted that she has an eye condition which prevents her using a computer, watching TV and in other words looking at any screen based on light. 13 Even if I took the view that notwithstanding the long period of time that she has not used her shorthand and typing skills, that she could walk into the employment market tomorrow and be capable of typing and taking shorthand at an acceptable speed, she still has the medical problem with the screen and most typists today use keyboards which have screens attached to them. It would seem the plaintiff would not be able to undertake such work. 14 There is evidence that she suffers from epilepsy and that that condition is chronic. That also would mitigate against her using modern technology in an office environment. 15 From my observations of her in the witness box I have grave doubts whether she would be competitive with other people seeking employment in areas such as a shop assistant. I therefore think that future employment prospects even if she had the desire to do it, are probably fairly remote. 16 So far as her assets are concerned, they are meagre. The agreed value of the house at Tregear is $75,000. She has a bank account which has approximately $2,700. Much to her credit, as counsel for the defendant has noted, she has been able to maintain that bank account somewhere between $2,000 and $4,000 over the last four years. That, to me, indicates someone who is thrifty and uses her best endeavours to manage what meagre income she receives. It certainly does not show someone who has the resources of a merchant banker. 17 Her income, which is solely by way of allowance or pension, is just over $270 a week. Her expenses are just under $239 a week. As has been observed, there is a surplus of approximately $32 a week. No doubt that fluctuates with needs and responsibilities that arise during the course of twelve months. It is not a great margin to live on. 18 The plaintiff has used her best endeavours to discharge the mortgage over the Tregear property. That she has done. The only other assets that she has consists of the furniture in the house and for the purpose of these proceedings the value of the furniture is about $2,000. 19 So far as s 9 (3) of the Act is concerned and s 7, I think the questions that are generally asked must be answered in favour of the plaintiff and that is conceded by the defendant. She is an eligible person. She does have needs and those needs have not been met by the deceased and the estate does have assets which can meet those needs. It is said that during the course of the deceased's life time both she and the plaintiff's father provided for the plaintiff and her family. There is no argument about that. But once again, it must be looked at in the context of what that provision was. They were parents, who, despite the abrasive nature of the relationship between mother and daughter, were there to provide from time to time, sometimes perhaps not graciously, but never the less provision was made by way of sending money to the plaintiff to cover bills or to meet short falls that arise just in relation to ordinary living costs. 20 The provisions that were made at the various times no doubt as concerns the value were not great but they were significant to the plaintiff's family in that it would appear that there were times when that was the difference between whether they had adequate food in the house or whether they went hungry. But in terms of a substantial monthly provision, it could only be regarded as small and insignificant in that context of either requirement to make further provision for the plaintiff or to make any significant reduction in any provision that should be made for her. 21 It was submitted on behalf of the plaintiff that she should receive the whole of the estate, on the basis that firstly she is the only daughter, secondly, at a time that her parents needed assistance to purchase the Lane Cove property, she gave that assistance. Moreover that the money that was provided by her was not fully repaid to her and lastly, her father made provision in his will for the plaintiff to receive one half of his interest in the Lane Cove property together with the money in his bank account. 22 In making provision for the plaintiff there are a number of matters that govern the court. But for this piece of legislation the court has no power to grant the application that is sought. Because of the legislation the court can interfere with the testamentary intentions of the deceased but it has a limited ability to do that. The court cannot alter the testamentary intentions simply because of the dashed expectations of a child, nor can it interfere with those intentions to address the hurt feelings that the child may be suffering from, nor can it stand in the shoes of the executrix and completely alter the testamentary intentions without their being some basis for doing that. 23 The authorities enable the court to make such adjustments where there has been a need demonstrated, where the person falls into one of the categories of eligible persons and where the estate is sufficient to be able to meet at least some of those needs. 24 In doing that the court must also consider any competing needs. In this case as matters stand now the competing needs are the needs of the three grandchildren. 25 The oldest grandchild is still at university and is subject to the HECS scheme. The evidence is that she has no assets. The deceased's grandson is in employment, although he has no substantial assets. The youngest grandchild is fourteen years of age and is still at school. The needs of those grandchildren need to be taken on board. So far as Elizabeth, the youngest child, is concerned the court is always very reluctant to make substantial adjustments to provision made for infants. I find this case to be no different from the usual practice. 26 The plaintiff has received nothing under her mother's will. I have already mentioned that a lot of that appears to be based on not only the abrasive nature of the relationship between them but also the failed expectations the mother had of her daughter. 27 There is a decision under the former legislation which I think is apposite to this particular matter and there is a quotation which I will read from it. It is a decision of Holland J in Kleinig v Neal (1981) 2 NSWLR 532 at 540. "If it is a case of parents and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim." 28 In this case the differences between the deceased and the plaintiff were not such for the plaintiff's conduct to be regarded as conduct disentitling her. Whilst they had a difficult relationship, there were times when the plaintiff did assist her parents. 29 So far as providing the whole of the estate to the plaintiff, I do not accept that her interest in her father's estate was given to the mother on a promise that when the mother died the plaintiff would receive the whole of the estate. It seems to me that there may have been some badgering by the mother for the daughter's interest to be transferred to her, as I read the evidence of the plaintiff. It was only after the plaintiff had indicated to the mother that she was going to transfer her interest in the property to the mother that the mother then made that statement. In any event, from annexure F to the plaintiff's affidavit of 12 December 1996, which is a letter to Patrick Grimes and Co, it would seem to me that there wasn't an altruistic purpose in transferring the property, it was more one of practical necessity: the plaintiff and her husband just didn't have the financial resources to make a contribution towards the rates of the Lane Cove property. 30 Some provision should be made for the plaintiff out of the estate of her late mother. Simone has a continuing debt in relation to her education. The grandmother has made provision for her in her will. Richard, whilst he is not furthering his education at the moment and there is no evidence that he will do so in the future, is also the recipient of his grandmother's testamentary intentions. Elizabeth is probably an unknown quantity. Other than a bald statement that she will continue her schooling, there is no evidence about her scholastic ability, there is no evidence about a preferred career path that she might take. Nevertheless she is only fourteen, still has at least a couple of years of schooling if not longer and she may well go on to higher education. Provision should be made for her. 31 So far as the plaintiff is concerned, I have already outlined what her assets and liabilities are. It seems to me that at the very least there should be some recognition of the fact that at one stage she did have a quarter interest in the Lane Cove property. But that in itself cannot be the basis for any orders made in her favour. It is merely a matter to consider. 32 It seems to me on the evidence that the matters going to the needs of the plaintiff are as follows: firstly there is her accommodation; secondly there is her ability to provide for herself for the ordinary day to day costs of living and then there is also consideration of any unforeseen matters that may arise and I think another matter is if there is some consideration, although perhaps not a great deal of consideration, to her employability. 33 The evidence is that the Tregear property is owned by her and her former husband. Although divorced there has not been an order made in relation to the property of the marriage. No doubt that will come. There has been some evidence about what the former spouses have decided. Some of that is objected to and some of it is not too clear but it must follow that at some stage there must be an order made in relation to the matrimonial property. If, either on settlement or by order of the Family Court, there is to be a division of that property, a starting point although not necessarily the order of the court, would be that there would be a fifty fifty split of that property. There has been no evidence put before me today that the plaintiff intends to live anywhere other than at the Tregear property. 34 The starting point therefore in addressing her needs would be to make provision out of her mother's estate to put her in a position where she would be able to buy out her former husband. The agreed value of the property is $75,000. The starting point for the pay out figure would be $37,500. The property is not a new property. This family has lived there since the 1970's. It was standing when they bought it. It was in fact a former Housing Commission home. No doubt at some stage in the future there will be a need to spend money on repairs and general upkeep of the property. The plaintiff in all probably, even for unskilled work around the place, will need to rely on tradesmen or paid help. Provision should be made for that contingency. 35 The deceased was aware of the plaintiff's position. By the very fact that from time to time she provided her with money and gifts for the children there is evidence of that awareness. A wise and just testatrix would have also made some provision for a sum of money which would enable the plaintiff to get by when times are tight. I would not think that the estate should provide such a sum which would place the plaintiff in a far superior position to that which she is in now. Firstly the estate cannot afford to do that and secondly I do not think community expectations require that. 36 Considering those components therefore, having regard to what now is the net value of the estate, and bearing in mind that unless there is a very compelling reason why the testatrix' testamentary intention should be completely overturned, I must also take into consideration the grandchildren and in particular Elizabeth. 37 Whilst the order that I make for provision for the plaintiff will by its very nature reduce the amount that the three grandchildren would have received out of their grandmother's estate, there will be sufficient to give those grandchildren a start in life, which appears to have been the intention of the grandmother. 38 Therefore the orders that I make are firstly that there be provision made out of the estate of the late Lillian Beryl McCosker by way of legacy for the plaintiff in the sum of $135,000. I order that the plaintiff's costs be paid out of the estate. Unfortunately there will be no residue for Mrs Riviere. Therefore the balance of the estate, in accordance with the intentions of the testatrix, will be divided equally between the three grandchildren. The executor's costs are to be paid out of the estate on an indemnity basis. **********