Linnane v Bonham; Bonfield v Bonham; Davey v Bonham [1999] NSWSC 906

New South Wales Supreme Court CITATION : Linnane v Bonham; Bonfield v Bonham; Davey v Bonham [1999] NSWSC 906 revised - 10/09/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4671/97; 4672/97; 4673/97 HEARING DATE(S) : 31 August 1999 JUDGMENT DATE : 9 September 1999

Pamela Margaret Linnane (P) PARTIES : Adell Marie Bonfield (P) Judith Ann Davey (P) Clive Lawrence Bonham (D) JUDGMENT OF : Acting Master Berecry

COUNSEL : Mr. J. E. Thomson (P) Mr. P. H. Blackburn-Hart (D) SOLICITORS : McIntosh McPhillamy & Co (P) Doolan & Brothers (D) CATCHWORDS : Family Provision; Small estate; Unreasonable attitude of defendant; Section 33 exercise of discretion; Unconventional lifestyle; Competing needs of siblings. ACTS CITED : Family Provision Act 1982 Perrin & ors v Morgan [1943] AC 399 Jackson v Riley (unreported, 24 February 1989, Cohen J) CASES CITED : Cooper v Duggan (1976) 50 ALJR 539 Singer v Berghouse (1994) 181 CLR 201 Stewart v McDougall (unreported, 19 November 1987, Young J) DECISION : See paragraph 59

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING MASTER BERECRY

Thursday, 9 September 1999

4671/97 PAMELA MARGARET LINNANE -v- CLIVE LAWRENCE BONHAM 4672/97 ADELL MARIE BONFIELD -v- CLIVE LAWRENCE BONHAM 4673/97 JUDITH ANN DAVEY -v- CLIVE LAWRENCE BONHAM

JUDGMENT

1 MASTER: On 4 April 1996 Lorna Adell Bonham died. Under the terms of her will she made the following provisions: I GIVE AND BEQUEATH unto my Trustee upon trust my cottage premises at 10 Hamley Street, Bathurst aforesaid together with the furniture contained therein for my son CLIVE LAWRENCE BONHAM absolutely upon his attaining the age of twenty-one years AND AS TO the residue of my real and personal estate I GIVE DEVISE AND BEQUEATH the same unto my Trustee upon trust for the said CLIVE LAWRENCE BONHAM the said ADELL MARIE HUGHES , PAMELA MARGARET LINNANE and JUDITH ANN BONHAM or the survivors of them upon their attaining the age of twenty one years respectively. 2 On 1 September 1998, probate was granted to Adell Marie Bonfield. The inventory of property disclosed that the realty was valued at $100,000 and the balance of the deceased's estate was valued at $112,334.46. 3 On 7 November 1997 each of the daughters of the deceased commenced proceedings under section 7 of the Family Provision Act. The proceedings were commenced out of time. On 11 December 1997 orders were made by consent to amend the summons by seeking an order extending the time for bringing the applications up to 7 November 1997. 4 Subsequently, on 26 November 1998, an order was made in each matter substituting Clive Lawrence Bonham as the defendant in each of the proceedings. 5 At the commencement of the hearing orders were made that the evidence in one matter be read as the evidence in the other. 6 In Perrin & ors v Morgan [1943] AC 399 Lord Atkin warned Judges faced with disputes over wills of the prospect that they might one day be obliged to meet "the group of ghosts of dissatisfied testators" who, "according to a late Chancery Judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills". "Waiting thereto" the President said "will be those whose wills have been interfered with unnecessarily or excessively". I suspect the same fate awaits beneficiaries who have caused wills to be unnecessarily or excessively interfered with. 7 Persons are entitled to dispose of their assets as they see fit. However, the Family Provisions Act permits the Court, to a limited degree, to interfere with the testamentary intentions of the deceased. 8 This is a small estate. The valuation for probate was $212,334.46. The residue being $112,334.46. Under the will, subject to administration costs, each of the plaintiffs would have been entitled to approximately $28,000. I think that is important when considering each of the claims. 9 In Jackson v Riley (unreported, 24 February 1989) Cohen J said that where the estate is a small estate, he suggested that the parties should try to come to some compromise and, if that failed, then the proceedings should have been approached with concerted attempts to keep the costs to a minimum. His Honour went on to say that both branches of the profession have an obligation to reduce the costs of litigation as much as possible where the amounts in dispute are so small. If the parties cannot reach a compromise, then by consultation with their legal advisers, both solicitors and Counsel, should seek to find all means of defining the real issue and confining the evidence in relation to them. 10 I can find no fault with either the plaintiffs or their legal representatives. There is evidence (Exhibit A) that they used their best endeavours to settle the proceedings. The evidence of the defendant was that, in the face of all requests to settle, he was not prepared to do anything but litigate. His reason being that he had promised his mother that he would do everything possible to ensure that the terms of her will were carried out as she wished them. I am sceptical of such promise when the maker of the promise stands to gain more than the others. It is not necessarily a noble position but one advanced by self interest. It would seem to me having regard to this evidence that, in all probability, he ignored the advice of his legal representatives in embarking on the course that he did. 11 At the date of the hearing, the costs of all parties amounted to approximately $67,500. Thus, if all costs were paid out of the estate, each plaintiff would receive a legacy of less than $9,000. It was submitted on behalf of the plaintiff that this is an estate where the Court should order an equal share amongst the four siblings. However, I am mindful in what was said in Cooper v Duggan (1976) 50 ALJR 539. It was said that it may be possible to justify an equal distribution in a small estate. However, that is not an aim of the jurisdiction and, should such an order be made, the discretion may miscarry. While the statute has changed since that decision, the fundamental philosophy has not. 12 So far as each of the beneficiaries go, their needs are different.