New South Wales Supreme Court CITATION : Bates v Wells [1999] NSWSC 778 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3123/98 HEARING DATE(S) : 29 July 1999 JUDGMENT DATE : 29 July 1999 Terina Maree Bates (P) PARTIES : Verlie Esma Wells (D1) Darren James Wells (D2) JUDGMENT OF : Master McLaughlin COUNSEL : Mr. M. S. Willmott (P) Mr. I. G. Harrison, S.C. (D) SOLICITORS : Eric Butler Solicitors (P) Bilbie Dan Hickey (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION : SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Thursday, 29 July 1999 3123/98 TERESA MAREE BATES -v- VERILIE ESMA WELLS & ANOR - ESTATE OF DAVID JOHN WELLS JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed 13 July 1998, the plaintiff Teresa Maree Bates, claims an order for provision for her maintenance, education and advancement in life out of the estate of her late father, David John Wells (to whom I shall refer as "the deceased"). 2 The deceased died on 6 May 1998. He left a will dated 11 June 1998, probate whereof was on 10 July 1998 granted to Verilie Esma Wells and Darren James Wells, the executors named in such will (who are the defendants to the present proceedings). 3 The deceased had been married twice. Of his first marriage to Sandra (now Mrs Daniels), on 6 March 1995 were born two children. They were Darren James, who was born on 11 November 1967 and who is now aged thirty-one (he is the second defendant), and Teresa Maree, who was born on 15 June 1971 and who is presently aged twenty-eight (she is the plaintiff). 4 In August 1984 the deceased and his first wife separated, and they divorced in December of the following year. At the time of the separation, the plaintiff was aged thirteen. She was fourteen and a half at the time of her parents' divorce. When the parents separated, an informal arrangement appears to have been made between themselves and their two children, that each of the children would spend alternate weeks with each parent, so that at any one time one parent and one child would be together. However, after a year or so, that arrangement appears to have altered somewhat, and the arrangement ultimately became that the plaintiff resided full time with her mother whilst Darren resided full time with his father. 5 There was evidence of decreasing contact between the plaintiff and the deceased. Indeed, by the time she had reached her late teens and early twenties, the contact was slight and was almost invariably initiated by the plaintiff herself. There was also evidence that the deceased had paid little by way of maintenance for the plaintiff. It would appear that a trust account had been established by the deceased into which some payments were made, totalling a little over $1000, but that when the plaintiff was aged only about thirteen or fourteen, the deceased required her to sign a document which enabled that amount to be withdrawn. Apparently the deceased used that money for his own benefit rather than for the benefit of the plaintiff. 6 In the meantime the deceased had married his second wife, Verilie Esma, who is the first defendant, on 20 December 1986. There were no children born of that union. Mrs Verilie Wells had herself previously been married and had children of her own. Nevertheless, the relationship between Darren and his father and his father's new wife continued to be a close and affectionate one. After an incident at the time when Darren wed in October 1993, there was virtually no further contact between the plaintiff and her father until the death of the deceased some four and a half years later. 7 The plaintiff married in 1995. She did not invite her father to her wedding. She and her husband now have a son, William, who was born on 21 June 1999. 8 Evidence was placed before the Court concerning the present financial and material circumstances of the plaintiff and her husband. The plaintiff, who until about eighteen months ago had various employments, including that of dental nurse, although she has no formal qualifications in that regard, is now a full-time wife and mother. She and her husband propose to have more children, and it is unlikely that the plaintiff will re-enter the work force for some years. As a consequence the plaintiff has received no income in the period of past eighteen months. 9 The plaintiff's husband is employed by Telstra. Until January of this year, he was employed as a level 3 plant operator and his net earnings (which include a basic salary and payment of overtime) for the year ended 30 June 1998 totalled $36,599. In January of this year he was promoted to level 4 communication officer. His salary has increased but he is now no longer entitled to any overtime. In consequence, his net income will now be about $30,000, a reduction of about $6600 from his net income for the previous financial year. 10 The plaintiff and her husband own their residence, which consists of a house property at 12 Rama Road, Valentine. That house property, of which they are joint tenants, has an estimated value of $250,000. It is however subject to a mortgage, upon which there is presently outstanding an amount of $138,000. They own a 1989 Ford Telstra motor vehicle, having a present value of $5000; a boat, with a value of about $1200; the contents and furnishings of their house; and an amount invested in an account with the Newcastle Permanent Building Society of $2387. Details concerning the living expenses of the plaintiff and her husband over the past twelve months total $37,601. It will be appreciated that that figure is about the amount of the net income of the plaintiff's husband before he received his promotion in January of this year and is indeed $7600 more than his present net annual income. 11 The plaintiff received no benefit under the terms of her father's will. By that will, the deceased gave to his widow, the first defendant, a life interest in the residence at 19 Maryot Street, Belmont, which was their matrimonial home at the time of his death, with remainder to his son Darren, and the residue of his estate equally between his widow and Darren. 12 The net distributable estate is valued at about $864,000. That valuation takes into account the costs of the defendant in the present proceedings, in an estimated amount of $35,000, and also the costs of the plaintiff of the present proceedings, also in an amount estimated to be about $35,000. 13 The house property at 19 Maryot Street has an ascribed value of $320,000. The other piece of real estate which was owned by the deceased at the time of his death was a house property at 18 Fellows Street, Merewether. That property has now been sold, and the estate holds the net proceeds of sale in an amount of almost $164,000. Other assets in the estate consists of money and shares totalling almost $450,000. 14 There is a further asset which is a shareholding of the mother of the deceased, the late Daisy Joan Wells. She died on 2 April 1996. By her will, she gave to her grandson Darren, son of her only child, the deceased, the dividends upon certain her shares for his life, and the will continued "After his death I give any undistributed dividends and shares to my son, the said David John Wells absolutely." 15 It would appear that these shares have a value of over $400,000. The only significance of the testamentary provisions of the mother of the deceased to the present proceedings is that it would appear that, in consequence of the death of the deceased, there will upon the ultimate death of Darren be a partial intestacy in the estate of the late Daisy Joan Wells which will result eventually in the plaintiff (being at that stage a surviving grandchild of the late Daisy Joan Wells), receiving a half interest in that shareholding, the other half interest going to the estate of Darren. However any practical benefit to the plaintiff resulting from that eventual interest in part of her grandmother's estate is likely not to come to her for many years into the future. The Court, in deciding the plaintiff's claim, must proceed by looking to the financial and material circumstances of the plaintiff at the present time. 16 Where, as here, there has been an estrangement between a testator and a child of that testator, it is very difficult for anyone else, be it a court or any other person, to make a judgment about who was ultimately responsible for that estrangement. Frequently the responsibility is that of each of the parties who are estranged. 17 Here, the plaintiff herself has however required and undergone treatment for emotional problems which in part have resulted from her estrangement from her father and in part have also stemmed from disabilities in her relationship with her own mother and with her mother-in-law and, at the time while she was in employment, difficulties with a fellow worker. 18 The plaintiff as a child of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 3(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. It will be appreciated that the first defendant as the widow of the deceased is also an eligible person, being such within paragraph (a) of that definition, and Darren, as a son of the deceased, is also an eligible person, coming within paragraph (b) of the definition. 19 The plaintiff has placed before the Court a list of what has been described by her as her needs, especially in relation to the residence and household requirements for herself, her husband and her young son. That list has however been by the defendant characterised as not a list of needs but more in the nature of a wish list. 20 The cost of the various additions and improvements to the house property which the plaintiff desires should be acquired or effected total $158,000. They include the extension of the house by construction of what was described as a rumpus room and construction of a swimming pool and the acquisition of air conditioning for the house. However, it would appear that the plaintiff and her husband and child live in what can only be described as a most commodious residence, albeit at present somewhat sparsely furnished. 21 They appear to have a need for additional furniture and furnishings, and for such items as curtains and blinds. Since the plaintiff is at home with her infant son whilst her husband is at work, a second motor vehicle could probably be described as a need. But certainly I do not consider that the totality of the items costing $158,000 could all be described as needs without which the plaintiff and her husband could not live at an acceptable standard. 22 In addition, the plaintiff commendably desires that private health insurance for her husband her son be obtained. She also expressed a desire for some substantial reduction, or even a total discharge of the amount presently owing under the mortgage on the house property, being $138,000. 23 In approaching the claim of the plaintiff, it is necessary for the Court to consider any competing claims upon the testamentary bounty of the deceased. In the instant case, the competing claims are those of the two defendants, being the widow and the son of the deceased. The former wife of the deceased is also an eligible person under paragraph (c) of the definition, but she has made no claim against the estate of her former husband. 24 Evidence has been placed before the Court concerning the financial circumstances of Mrs Verilie Wells, widow of the deceased. She has continued to live in the house property which was her matrimonial home during the lifetime of the deceased. The Court would not contemplate in any way interfering with that entitlement. In addition, quite apart from the other benefits to which she is entitled as recipient of a half share in the residue of the deceased, Mrs Verilie Wells has substantial assets of her own. Those assets include two residential units at Belmont (having an estimated total value of $200,000) and various moneys invested (which give to her an income of about $620 a week). She also has an 1985 model Toyota motor vehicle, valued at about $5000. 25 No precise evidence has been placed before the Court by Darren James Well, the other beneficiary named in the will of the deceased, concerning his financial and material circumstances. He is married and has three young children. He is in employment. He has received considerable benefits as a result of the testamentary provisions of his grandfather, Alexander Clifford Wells, and his grandmother, Daisy Joan Wells. 26 The only significance of the financial and material circumstances of each of the defendants is that these circumstances might have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established 27 In the instant case, the circumstances of the two named beneficiaries, who it must be emphasised are the chosen objects of the testamentary beneficence of the deceased, are such that they will not reduce, let alone extinguish, any order for provision which the plaintiff might otherwise have established. 28 It seems to me that it is appropriate that the plaintiff should receive an order for provision out of the estate of her late father. That order should be in an amount which will enable her to effect improvements by way of furniture and furnishings for her residence, but will not necessarily allow her to indulge in what one might describe as additions in the nature of luxuries. I do not consider that a swimming pool could by any means be regarded as a necessary addition to the residence. The amount should also enable the plaintiff to acquire a second motor vehicle and should enable the plaintiff and her husband and child all to have private health insurance. Further, it should enable her to have some funds available to meet contingencies, or to enable her to effect some improvements in her lifestyle, or, if she so desires, to enable her to reduce the amount owing upon the housing loan secured by mortgage. 29 In all the circumstances, it is my conclusion that the plaintiff should receive out of the estate of the deceased, a legacy in the sum of $100,000, and I propose so to order. A legacy in that amount will not in the circumstances of this case have a detrimental effect upon the situation of either of the two defendants. 30 The orders which I make are as follows: 1. I order that the plaintiff receive out of the estate of the late David John Wells ("the deceased") a legacy in sum of $100,000, such legacy not to bear interest if paid on or before 26 August 1999, and if not so paid to bear interest at Supreme Court rates. 2. I order 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. ********** Last Modified: 09/03/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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