New South Wales Supreme Court CITATION : Richardson v Richardson [1999] NSWSC 1220 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2765/98 HEARING DATE(S) : 08/12/99 JUDGMENT DATE : 8 December 1999 PARTIES : John Ellis Richardson v Therese Ann Richardson JUDGMENT OF : Master Macready at 1 COUNSEL : Mr M. Willmott for plaintiff Mr P. Sharpe for defendant SOLICITORS : Needs Chan & Monahan for plaintiff R.A. Davies for defendant CATCHWORDS : Family Provision. Application by son. Order made. No matter of principle. DECISION : Paragraphs 43-48 - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY WEDNESDAY 8 DECEMBER 1999 2765/98 - JOHN ELLIS RICHARDSON v THERESE ANN RICHARDSON - ESTATE OF HARRY RICHARDSON JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Harry Richardson who died on 11 December 1996 aged 81 years. 2 The deceased was survived by the plaintiff, his son and by the defendant, his daughter. Under his last will which was made on 28 September 1995 the deceased in effect left the whole of his estate to his daughter, the defendant, subject to a charge in favour of the plaintiff in the sum of $20,000. That amount has been paid to the plaintiff by the defendant. 3 The estate principally comprises the property of 1 Russell Street, Eastwood. The parties are agreed that that property has a present value of about $450,000. Clearly the property has appreciated in value and at the date of death was estimated by the executor at a value of some $315,000. There was also cash in the estate of $9,127 approximately which will be used for administration expenses and there have been the costs involved in this piece of litigation on the plaintiff's side of some $16,000 and on the defendant's side of some $13,300. 4 I will firstly deal with a little of the history of the matter. The plaintiff and defendant's mother was born on 3 May 1911, the deceased himself was born on 3 June 1915. The plaintiff who was the eldest child was born on 19 August 1948 and the defendant was born on 11 December 1953. By 1963 the plaintiff had completed his education at Marist Brothers and he obtained an apprenticeship as an electrician. He left home in 1967 and married in March 1968. By 1970 he had completed his apprenticeship and started work in his profession. He was divorced in 1972 and he remarried in September 1983. He married Genoveva Richardson. Since sometime after that he has been self-employed as an electrician. 5 The defendant herself married in 1985, however she apparently did not have any children. The plaintiff had a number of children, firstly there was Mark who was born on 25 December 1986 and Carmen who was born on 22 May 1989. 6 By August 1993 the plaintiff and defendant's mother was admitted to a nursing home. She soon started to deteriorate and apparently was suffering from Alzheimer's. At about this time the plaintiff and his wife Genoveva separated and divorced some 18 months later. 7 In September 1993 the defendant moved back into the deceased's home to look after the deceased. She herself separated from her husband and was divorced in June 1994. 8 I have mentioned the deceased executed his last will in September 1995 and he died on 11 December 1996. The parties' mother died on 23 April 1997. There was little in her estate, about $10,000 and that was equally divided between the two parties. Apparently after she had gone into the nursing home her interest in the main property had been transferred back to the deceased and her real estate was held by the deceased. 9 The Summons was filed on 11 June 1998 and accordingly was just within time. The real estate has been transferred to the defendant as beneficiary. 10 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The termination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 11 As directed by the High Court it is necessary to look at the financial situation of the plaintiff. The plaintiff is married now for the third time, he apparently has had four children although he only has three dependant children, his son Mark aged 12, Carmen aged 10 and Karen who is four months old a child by his new wife. 12 As far as income is concerned he last year had an income of $21,388 per annum and he presently estimates his monthly income of $2,074.53. This includes the rent he receives from a boarder of $100 a week but which he expects will stop in a little while once his youngest daughter is able to or needs to occupy a room by herself. 13 As I have mentioned he works for his own company as an electrician and his work depends upon small domestic and commercial business. In the past he has had to restrict the amount of his work because of the need for him to look after his two children. He shares custody of those with his former wife. The situation will change no doubt because he has a new wife who is no doubt able to be at home for the children. There is some suggestion that she may have to return to Indonesia and come back in some years time. 14 His outgoings are estimated by him at $2,070 per month. These include the education of his children at a modest level in Catholic schools. 15 He does have assets of some substance. He has his home worth about $400,000, it has four bedrooms and is unencumbered. He has a half interest in a caravan of $1,000 and apart from the fact he has a Toyota Hyace owned by the company worth $10,600 there is also a Ford Falcon which is his family car that is of little value. He has apparently some interest in superannuation of $58,000 which cannot be accessed, $20,000 at least of which is for the benefit of his children when they are 21. 16 He has some medical problems connected with his back and that resulted from a motorbike accident. The pay out he received when he made a claim in respect of that was some $5,000. At the moment he is 51 years of age, is able to compete in the City to Surf even though he feels his time of 107 minutes to walk and run it is not up to what he was obviously doing as a younger man. 17 One of the critical things in this case is the relationship between the deceased and the plaintiff. In a statement made by the deceased at the time he executed his will the deceased recorded the reasons for why he had made greater provision in his will for his daughter Tess than for his son John. 18 At para 3 of his statement he had the following to say: "I have made a greater provision by my Will for my daughter Tess than I have for my son John because: (a) Tess has looked after her mother and myself for over fifteen years. (b) For the last two years Tess has lived with me permanently at 1 Russell Street, Eastwood and cared for me. (c) My income is insufficient for me to properly maintain my home 1 Russell Street, Eastwood and Tess has contributed from her own moneys for the upkeep of the home:- lawn mowing, painting and other maintenance work. (d) Tess could work full time however she works part time in order to care for her mother and myself and as a result has incurred and is incurring a loss of income. (e) Tess visits her mother in the Mary Potter Nursing Home, Ryde every day and twice on each day that she does not work. Tess pays from her own moneys for her mother's nighties, toiletries and minor living expenses. (f) John left home when he was 18 years of age and has not financially contributed to our family nor has he cared or offered to care for his mother or myself." 19 The contents of that statement were put to the plaintiff and in substance he agrees with the factual matters but indicates that he himself of course had his family responsibilities and accordingly unlike his sister was not able to look after the deceased. It is obviously clear though his sister has done a great deal for the deceased and also for the parties' mother. 20 One of the things that the deceased did not refer to in that statement was the tensions in the home that obviously existed. The evidence indicates that there were cross arguments between the plaintiff and his mother during the course of the plaintiff's younger years. 21 The plaintiff himself concedes that there were continual arguments and he puts this down to the fact that he and his mother were of the same type of personality. Observing the plaintiff in the witness box it is perfectly clear that he is very argumentative and at times garrulous and the situation which he concedes existed probably made it extremely difficult during his formative years. His father with whose estate we are concerned seems to have played little role in these matters. 22 The relations which existed between the plaintiff and his parents is illustrated by the evidence that his mother told him when he did leave home to never come back. Notwithstanding this it seems to me that at least from 1983 onwards there is evidence that suggests there were still visits between the plaintiff and the deceased and the plaintiff's mother. These tended to be formal occasions such as Christmas, birthdays and the like. There were not a lot of them and, for instance, during the period from 1983 to 1993 when the plaintiff and his wife separated there were probably only three occasions when the deceased would come to the plaintiff's home. The evidence also indicates that the plaintiff visited his mother in hospital fairly frequently and he would see the deceased there in the last few years. 23 One of the other things that has emerged in the case is the clear antipathy that the plaintiff bears towards his father. He feels that his father did not treat him properly as a son during his upbringing and he feels strongly about this fact. This may well explain the fact that there was little communication between them. 24 Although he would go to the hospital to see his mother in the latter years and saw his father then, he never took the trouble to go and see his father at home, at least not to any serious extent. 25 It is difficult in a matter such as this to work out precisely where the fault lies. Clearly the plaintiff was difficult at home but it also appears that some of the problems may have also been because of the nature of the parties' mother. Whatever it is there was a complete distancing and it seems to me that in the middle of the plaintiff's adult life he made little contact with his father but that improved to a reasonable extent in the latter years. 26 This relationship is not one which I would have thought amounts to disentitling conduct but the break with the father in the middle years is something which ought to be taken into account when one comes to assess the order. 27 Another matter that has to be taken into account is the provisions made during the lifetime of the deceased. There was only one matter in question and that was the sum of $1,000 that was given by the mother to the plaintiff. Apparently that resulted from work the plaintiff had done and it certainly seems from his evidence that he did work, perhaps unhappily, in various ways at home to help the family. In any event it is not a substantial amount and will not affect the result in this matter. 28 It is necessary also of course to look at the situation of others who have a claim on the bounty of the deceased. In this case the only person is the defendant. She is 46 years of age, she has no dependants and presently is engaged to be married. 29 Her assets are as follows. She firstly has a home unit at 3/50 Meadow Crescent, Meadowbank and that is valued in the order of $160,000 to $170,000. She also has the property comprising the estate which is valued at about $450,000, a St George Visa account of $3,000, Westpac accounts of $2,350 and $70,153. She has 4,113 shares in GJ Coles having a value of $32,023, 1,150 AMP shares worth $17,440. She has a joint account with her fiance in the sum of $18,000. She is planning to marry once this matter has been finalised. Her net salary from employment at the moment is $554.75 per week and she receives a net rent from the tenant of her Meadowbank property of $149 per week. Clearly she is in a reasonable position. 30 It is necessary to look at the relationship between her and the deceased. It seems that she was of a different nature to the plaintiff and was able to accommodate her mother's nature which caused the plaintiff so much antagonism. Clearly she had a good relationship with the deceased and perhaps as the plaintiff himself described she was too good in looking after the deceased and the mother. However, she did it and she came and lived with them for the last years of their life to help. She did work on the home, repaired it, painted it and things of this nature, all out of her own funds. Clearly she was a great support to her parents. 31 It is necessary to see how the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. In his affidavit of 12 November 1999 the plaintiff addresses these matters. In particular what concerns him is the fact that he has a young family, one of his children is only four months old and he also has Mark and Carmen who are at the ages I mentioned before. 32 He can look forward to raising them for some years and he is self-employed. At the present stage he is 51 years of age. When one looks at the ages of his children clearly there is some worry for him being able to provide in his type of employment beyond a period of about ten years. 33 He has suggested that a capital sum of some $72,000 will assist in maintaining the family because it will provide an income of about $100 per week over a period of 18 years. Apart from that the other needs that he advances are in number several others. 34 Firstly, the question of his motor vehicle. I accept that the present vehicle which he has is of no value and obviously he will need to provide another vehicle. Certainly his Hyace truck would not be appropriate as it does not have the number of seats, and he suggests $25,000 would be an appropriate figure for a replacement motor vehicle. Perhaps this provision might be slightly excessive but probably not too far from the mark. 35 There is also the question of replacement of carpets for some $5,000. These have not been replaced since sometime prior to 1983. There is also the replacement of household appliances of some $5,000. No doubt some of that may be justified, precise details are not available, and accordingly it may be something nice to have but not absolutely necessary. 36 I think that in general there is a need to provide something more for the plaintiff. The plaintiff does have the prospect of having to look after children for sometime. In particular there is some uncertainty as to when his wife will have to return to Indonesia, she being a refugee, and whether she may return. If she does not the plaintiff will no doubt have a difficult time in continuing to bring up the youngest child. I think it is appropriate that there be some additional legacy over and above the $20,000 that was provided. 37 The estate has already been distributed. However, the court can designate property as notional if it is satisfied some order ought to be made. I am so satisfied. 38 Section 27 of the Family Provision Act is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person; (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration; (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be; (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and (e) any other matter which it considers relevant in the circumstances." 39 The first thing the court ought to consider is the importance of not interfering with a reasonable expectation in relation to the property. Here the application was brought on the last day available. Although a notice of distribution may have been given the administrator or executor should be well aware particularly in circumstances of personal antipathy like there is in the present case that claims may be made. 40 Accordingly I find it hard to see there are any reasonable expectations in relation to the property. Certainly there were no promises to the defendant about receiving it, although she had done work on it. The extent of any legacy that might be provided would not be such as would interfere with her reasonable future enjoyment in the property. There is nothing under s 27(1)(b) or (c) that need be considered. 41 Importantly, (and this goes to the general consideration of the matter) when one looks at the Testator's intention one has a property which has increased substantially in value since the time that the deceased himself considered the provision that was appropriate to be made. At that time he assessed the differential no doubt based upon what he thought his daughter should have and what was appropriate for his son and came upon a figure of $20,000. 42 In my view taking into account the future needs of the plaintiff particularly in relation to the youngest child, the fact of which the Testator was not aware, and which I have to take into account, there ought to be provision of an additional legacy of a further $60,000. 43 Accordingly, the orders I make are that in lieu of the provision in the will in favour of the plaintiff of $20,000 the plaintiff receive a sum of $80,000 of which $20,000 has already been paid. 44 I order that the plaintiff's costs on a party to party basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased. 45 I designate to the extent necessary to meet the orders I have made the property at 1 Russell Street, Eastwood as a notional estate. 46 I have designated to the extent necessary as notional estate, the property at 1 Russell Street, Eastwood and accordingly the legacy is to be charged upon that property. 47 I order that interest shall run on the provision in favour of the plaintiff at the rate provided in the Wills, Probate and Administration Act if not paid within two months of today's date. 48 Exhibits to be returned. oOo Last Modified: 06/30/2000 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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