Bennett v Public Trustee [1999] NSWSC 724

New South Wales Supreme Court CITATION : Bennett v Public Trustee [1999] NSWSC 724 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3750/98 HEARING DATE(S) : 19 July 1999 JUDGMENT DATE : 19 July 1999

Belinda Bennett (P) PARTIES : Evan Bennett (P) The Public Trustee (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. M. S. Willmott (P) Mr. M. Meek (D) SOLICITORS : Eric Butler Solicitors (P) P. J. Whitehead (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 19 July 1999

3750/98 BELINDA BENNETT -v- PUBLIC TRUSTEE - ESTATE OF GEORGE BRIAN CAMPBELL JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 28 August 1998 the plaintiffs, Belinda Bennett and Evan Bennett, each seeks an order for provision for her or his maintenance, education and advancement in life out of the estate of their late father George Brian Campbell (to whom I shall refer as "the deceased"). 2 The deceased died on 7 July 1998, aged about 62 years. He left a will dated 20 September 1995. Letter of administration with that will annexed were on 1 December 1998 granted to the Public Trustee, who is the defendant to the present proceedings. The executor named in that will renounced probate. 3 The deceased was survived by two children being the two plaintiffs. 4 I shall shortly refer to the circumstances of the relationship between the deceased and his two children, and to the circumstances in which, as it will be observed, the two plaintiffs have a surname different from that of the deceased. 5 By his will, the deceased gave the entirety of his estate to his grandchildren in equal shares. The will firstly directed that any person who came within the description in the will as a "minor beneficiary" should not take until that beneficiary had achieved the age of 32 years. 6 At the time of his death, the deceased had two grandchildren, being the two children of the second plaintiff. Those children are Cheridyn Bennett, who was born 21 June 1991 and is presently 8 years of age, and Sharni Bennett, who was born on 30 October 1993 and is presently 5 years of age. 7 All parties to the present proceedings were in agreement that the effect of clause 4 of the will was to give the entire estate to Cheridyn Bennett and Sharni Bennett in equal shares, and that upon the death of the deceased, each of those beneficiaries took a vested interest in the estate of the deceased; but that the interest in possession of those two beneficiaries was postponed at least until each such beneficiary achieved the age of 18 years. 8 Clause 7 of the will gives to the defendant, being the trustee of the will, a power of advancement in respect to both capital and income of the interest of each of the infant beneficiaries of the estate. 9 The assets of the estate of the deceased at the time of his death included certain pieces of real property, together with a motor vehicle and money in a building society account. Those assets have now been realised. 10 The defendant, in the affidavit of Peter John Kelly sworn 13 July 1999, sets forth the nature and value of the distributable estate as consisting of funds held by the defendant and one piece of realty which is in the process of being sold, totalling $137,401. From that amount must be deducted the Public Trustee's uncharged commission of $450, the estimated cost of the plaintiffs of the present proceedings totalling $24,000, and the estimated costs of the defendant of the present proceedings totalling $10,000. That would leave a net amount available for distribution of $102,951. 11 The two plaintiffs are the only children of the marriage of the deceased to Fay Colleen Bennett, which marriage took place on 21 July 1966. The second plaintiff Evan was born on 14 April 1968, and he is now 31 years of age. The first plaintiff was born on 24 July 1971, and she is now 27 years of age. 12 When those children were very young their parents separated, in January 1972. Their parents were divorced on 9 February 1973. The divorce proceedings having been instituted by Mrs Fay Bennett on the grounds of cruelty, orders were made by the Court in those proceedings that the mother have the custody of Evan and Belinda, but that the deceased have access to them. 13 The deceased exercised that right of access for a relatively short period, and appears not to have exercised it after 1974, that is when Evan was aged no more than 6 and Belinda was aged no more than 3. 14 In the meantime the mother of the plaintiffs had married William Benjamin Bennett. From that time onwards the children used the surname Bennett. It would appear that in 1974 William Benjamin Bennett sought to adopt the plaintiffs. However, the deceased refused to give his consent to such adoption. 15 In December 1990, when Evan was aged 22 and Belinda was aged 19, the plaintiffs formally adopted the surname of Bennett, and it would appear that in so doing they caused the registration of their respective births to be amended in order to reflect such change of surname. 16 For some years until about the time when Evan reached the age of 21, the plaintiffs continued to receive cards at birthday and Christmas from both the deceased and his mother (that is, the paternal grandmother of the plaintiffs). 17 Neither plaintiff had any direct personal contact with their father from about 1974, when he ceased to exercise his rights of access, until contact was effected by the deceased with Evan by telephone when Evan was aged about 21. 18 According to his affidavit evidence Evan was unresponsive to that contact because, according to Evan, he "was worried that his return to our lives after so long would be stressful for our family, especially if he hadn't changed his ways." 19 However, some years later, after Evan had married and after his two children had been born, Evan himself effected contact with the deceased in about July 1994. Evan telephoned his father, and arranged a visit. 20 In the next two years there were a number of instances of contact between Evan and his father. Those occasions included about five personal visits and about fifteen telephone conversations. 21 However, the last telephone conversation occurred in about mid-1995. During the course of that conversation the deceased referred to the alteration upon the birth certificates of each of the plaintiffs of their surname from Campbell to Bennett. Apparently the conversation became heated. Each party said that he did not want to see the other again. There was no further communication between Evan and his father until the death of the deceased some three years later. 22 At about the time when Evan was communicating with his father in 1994 he consulted with Belinda, and asked her whether she wished to meet the deceased. Originally she agreed to a personal meeting; later she changed her mind. There was however telephonic contact between the deceased and Belinda on two occasions. There was no personal contact. 23 An explanation, or a possible explanation, for the decision by Belinda not to have face to face contact with her father relates to a reference in a telephone conversation between the deceased and Evan, in which the deceased is said to have referred to Belinda as "a spoilt brat, just like her mother". Apparently Belinda heard that part of the conversation, and that was one of the reasons which is advanced by Belinda for not having any personal contact with her father. 24 Each of the plaintiffs as a child of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained within section 6(1) of the Family Provision Act. As such, each plaintiff has the standing to bring the present proceedings. The only other eligible person in relation to the deceased is his former wife, Fay Colleen Bennett, the mother of the two plaintiffs. Although served with a notice of claim, she has not made any claim against the estate of the deceased. 25 Evidence has been placed before the Court concerning the financial and material circumstances of each plaintiff. 26 Evan qualified as a carpenter. He presently works as a subcontractor carpenter for an entity called Drew Constructions. An updating affidavit concerning his financial and material circumstances was sworn by Evan on 5 July 1999. The evidence concerning Evan's earnings, and concerning the likely future prospects of his work as a subcontractor for Drew Constructions was further updated by his oral evidence during the course of the hearing. It would appear that his subcontracting arrangements will continue for at least the next 6 to 8 months. 27 It would appear that for the financial year ending 30 June 1999 Evan's gross earnings from that subcontracting work amounted to $46,603, from which income tax of $9,316 was deducted, leaving a net income of about $37,300. 28 Evan's assets consist of a 1994 Toyota Hilux motor vehicle, having an estimated value of $10,000; an amount of $4,366 in a bank account; together with personal property and furniture and furnishings and second-hand building materials. His only liability is an amount owing on a State Bank Bankcard, being $600. 29 I have already recorded that Evan and his wife, whom he married in February 1991, have two children, presently aged 8 and 5. Evan's wife is not in employment; she receives a family allowance in an amount of $3,500 a year. Her only asset is a 1986 four-wheel drive Hilux utility vehicle having an estimated value of $6,000. 30 Evan and his family live in rented accommodation at Salamander Bay, for which they pay weekly rent of $70. They are required to maintain that property. The evidence discloses that the residence upon the property is in poor condition and suffers water incursions during wet weather. 31 Apparently it is the ambition of Evan to acquire a residence for himself and his family. He has placed before the Court evidence of his enquiries as to the cost of a suitable three bedroom residence in the Kempsey area, which would require about $120,000 for what is described as a modest three bedroom home. 32 He has made enquiries of Aussie Home Loans, and has established that on his current income he could obtain a loan of $77,000 to purchase such a house. 33 Evan has suffered medical problems, one being a physical deformity to the base of his spine; the other being a problem with his wrists which has been described as carpal tunnel syndrome. 34 There has been placed in evidence the medical records of Dr Terry Linsell, who has been Evan's treating medical practitioner; and also evidence concerning a report by Drew Constructions to its worker's compensation insurer concerning an injury which Evan suffered on 1 May 1977. 35 Evan has placed before the Court information concerning the education arrangements and state of health of each of his two children; each of whom attends the Soldiers Point Primary School. The elder daughter Cheridyn has an allergy to a number of foods, and she has also suffered from asthma. 36 Each of the two children requires orthodontic treatment to her teeth. However that treatment cannot be undertaken until each child is in her early teens. It will cost between $3,000 and $4,000 for each child. 37 It should here be observed that, although the defendant has by the terms of the will been given a power of advancement in respect to each of the two infant beneficiaries, no request has been made by Evan on behalf of either of his daughters to the defendant that that power of advancement be exercised. 38 Belinda left home in 1991, when she was aged 19 or 20. She trained as an enrolled nurse at the Royal Prince Alfred Hospital and qualified in 1992. Since then she has until recent times been in full employment as an enrolled nurse earning between $19,000 net and $26,000 net a year. 39 In 1988 Belinda formed a relationship with Pelle Hjelmstrand, with whom she has lived in a de facto relationship since 1991. They lived together in Sydney until February 1998, and since that time they have resided in rented accommodation at Corlette. 40 Belinda has for the past 12 months been employed on a casual basis as an enrolled nurse by an entity called Mobile Nursing Agency. For the year ending 30 June 1999 she received a gross income of about $10,000. She has not obtained any work through that nursing agency since March of this year. 41 However, in February 1999 Belinda commenced studies at the University of Newcastle for the degree of Bachelor of Nursing. She is in receipt of Austudy, in an amount of $257.40 a fortnight (totalling almost $6,700 a year). Although she is permitted whilst in receipt of Austudy to work in paid employment for one day a week, she has been unable to obtain much work in that field of part time employment. 42 In her affidavit of 2 July 1999 Belinda said that she had last worked two weeks before then, that is, in about mid June, receiving $87.66 for a six hours shift. Before that the last time she had worked was in March of 1999. 43 Belinda's de facto partner commenced studying at the University of Newcastle for the degree of Bachelor of Arts in February 1999. He also is in receipt of Austudy at the rate of $260 a fortnight. Before commencing his present university studies, Mr Hjelmstrand was working as a taxi driver in Sydney. He occasionally returns to Sydney on a Saturday and works as a taxi driver. According to Belinda's most recent affidavit he receives about $120 a fortnight from that work as a taxi driver, but apparently that work is irregular. 44 Belinda's present assets consist of a 1994 Mitsubishi Lancer vehicle, having an estimated value of $11,000; moneys in two accounts, totalling about $2,300; and other personal property, to which she ascribes the value of $5,000. She has no current liabilities. Her de facto partner has a minimal amount in a bank account; and other personal property, to which the value of $8,000 is ascribed. I have already recorded that they reside in rented accommodation. For that accommodation they pay $7,540 a year. 45 Mr Hjelmstrand suffers from asthma, whilst Belinda herself enjoys good health. 46 It has been submitted on behalf of the plaintiffs that the fact that they had no contact whatsoever with their father for most of the period whilst they were growing up, and that their contact with the deceased after they reached adulthood was minimal, should not debar them from obtaining an order for provision from the estate of the deceased. 47 It is correct to say that the lack of contact between the plaintiffs and their father during their childhood and early adulthood appears essentially to have been as a result of the conduct of their father. 48 In many cases the Court is confronted with the version given by only those who are still alive concerning circumstances, such as those in the present case, where there has been little or no contact between a child and a parent. 49 In this case however the deceased himself recorded the reasons for his exclusion of the two plaintiffs from any testamentary benefit in his estate. Those reasons are set forth in a statutory declaration dated 20 September 1995, being the same date as the date upon which he executed his will, and in a letter, a copy of which is annexed to that statutory declaration, that letter being dated 14 September 1995. It appears from those two documents that the deceased felt that the lack of contact by him with his children during their childhood and teenage years was essentially the result of the attitude of his former wife. 50 Further, it appears that the deceased felt extremely hurt that after there had been some degree of contact between himself and Evan (initiated originally by the deceased with Evan in about 1989, and then renewed at the instance of Evan about five years later, and initiated by the deceased with Belinda) neither of his children wished to maintain that contact. 51 Further, the deceased appears to have felt very strongly about not merely the adoption by his two children of the surname Bennett (which, I would interpolate, was understandable from their point of view), but especially about the fact that the children caused to be altered the surname disclosed in their birth certificates. That fact which the deceased regarded as unnecessary, and (to use his own phrase) as "a criminal act." 52 In the letter annexed to the statutory declaration, the deceased said After 21 years with no communication with Evan and Belinda I find that I was never invited to my son's wedding. I was never informed that I had a first grandchild. I have not as yet seen my daughter. After all these years they have both proved to me that they do not recognise me as their father and never will. There is no-one left to carry on the Campbell name. I am the last and through your both change of names any grandchildren or subsequent grandchildren will be born under the name of Bennett. 53 Towards the end of that letter the deceased said, "I will miss my grandchildren very much. Just as I missed you both for 21 years, and life without a family can be very lonely." 54 Whilst the lack of contact, which I have outlined, does not of itself debar the plaintiffs or either of them from bringing the present proceedings, or from obtaining an order in the present proceedings, it is a substantially relevant consideration. I have little doubt that if each plaintiff had wanted to do so, he or she would have been able to maintain contact and communication with the deceased. 55 Nevertheless, in circumstances where there is no such contact, there is always a degree of responsibility on each side. It is not purely the plaintiffs who are responsible, but the deceased also to a degree must be regarded as responsible. 56 In approaching the claims of the plaintiffs the Court must also have consideration to the competing claims of any other persons who have a claim upon the testamentary bounty on the deceased. In the instant case it will be recognised that Evan's two children are the chosen beneficiaries of their grandfather. 57 It has been submitted that any benefit which might be awarded to Evan will ultimately benefit his two infant children. The Court however should be absolutely scrupulous in protecting the rights of those who because of their age are not in a position to protect their own rights. It may well be that benefits which might be received by Evan from the estate of his father will ultimately devolve upon his two infant children. 58 The deceased provided that the defendant trustee should have a power of advancement to benefit the infant beneficiaries during the period of their infancy. Evan has not seen fit to apply to the defendant for the exercise of such power of advancement in favour of his two daughters. 59 It seems to me however that it would be of present benefit to the two infant beneficiaries if there were some greater security in the lifestyle and the accommodation of their parents. To that extent I consider that Evan has established an entitlement to receive a benefit from the estate of his late father. It has been submitted that that benefit should be in an amount which will enable him to place a deposit on a house property, and also to provide for the dental work for the two children. 60 I do not consider however that the financial circumstances of Evan are such, especially in the light of the considerably increased net amount of his earnings in the past financial year, that it is necessary for the Court to award to him an amount which would cover the entirety of the deposit upon such a house property. 61 As to the cost of the dental work, that seems to me to be a cost which should appropriately be the subject of an application to the defendant for the exercise of the power of advancement given by the will. 62 I have reached the conclusion that, in all the circumstances, it is appropriate that Evan should receive from the estate of his late father a legacy in the sum of $40,000, and I propose so to order. 63 The case of Belinda is somewhat different. Whilst it is commendable that she is desirous of improving her professional qualifications by attaining a university degree in nursing, that is a matter of her own choice. Similarly, there appears to be little explanation as to why her partner has at this stage of their relationship decided to go back to university, and essentially to deprive himself of the ability of being the chief breadwinner during Belinda's period of further tertiary training. Neither does Belinda have any dependants. 64 Despite the submissions made on behalf of the defendant that Belinda's claim should be dismissed, nevertheless I have reached the conclusion that she has established an entitlement to receive from the estate of her father a relatively small legacy to constitute some slight increase in the standard of her lifestyle, or to provide her with funds to be available in order to meet any contingencies. I propose in those circumstances to award to Belinda a legacy in the sum of $15,000. 65 I make the following orders: 1. I order that the plaintiff, Belinda Bennett, receive from the estate of George Brian Campbell ("the deceased") a legacy in the sum of $15,000 and that the plaintiff Evan Bennett receive from the estate of the deceased a legacy in the sum of $40,000, such legacies not to bear interest if paid on or before 16 July 1999, and if not so paid to bear interest at Supreme Court rates.