Slinning v Sloss [1999] NSWSC 740

New South Wales Supreme Court CITATION : Slinning v Sloss [1999] NSWSC 740 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2284/98 HEARING DATE(S) : 22 July 1999 JUDGMENT DATE : 22 July 1999

PARTIES : Elizabeth Slinning (P) Alexander Sloss (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mrs. D. Stewart (P) Mrs. M. Bridger (D) SOLICITORS : Llyod & Lloyd (P) Coleman & Greig (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 22 July 1999

2284/98 ELIZABETH SLINNING -v- ALEXANDER SLOSS - ESTATE OF MABEL EDNA SLOSS JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 6 May 1998 the plaintiff, Elizabeth Slinning, seeks an order for provision for her maintenance, education and advancement in life out of the estate of her late mother Mabel Edna Sloss (to whom I shall refer as "the deceased"). 2 The plaintiff is one of the three children of the deceased. The deceased died aged eighty-five on 28 December 1996. She left a will dated 11 July 1974, probate whereof was, on 26 May 1997, granted to her son Alexander Sloss, the executor named in such will (who is the defendant in the present proceedings). 3 The deceased left the following assets disclosed in the inventory of property: a piece of real estate situate at and known as 378 Darling Street, Rozelle, to which an estimated value of $270,000 was at that time ascribed; a piece of real estate situate at and known as 84 Harrow Road, Bexley, to which an estimated value of $185,000 was at that time ascribed; together with moneys in various accounts and on term deposits, and certain shares. 4 The present assets comprising the estate of the deceased consist of the net proceeds of sale of the Darling Street property, which realised considerably more than the estimate of $270,000 disclosed in the inventory of property. The present net balance is represented by the sum of $455,456, together with an amount held in a cash management at call account (having a balance of $54,286), and a small amount of $629 in a cheque account with the Commonwealth Bank of Australia. 5 There have been a number of distributions to the beneficiaries named in the will, to which distributions I shall shortly refer. Thus it will be appreciated the amount presently held by the defendant does not represent the totality of the assets of the estate. 6 By her will the deceased gave shares in various companies to each of her three children. To the plaintiff, Elizabeth Slinning, she gave her shares in John Fairfax Limited. To the defendant, Alexander Sloss, she gave her shares in L J Hooker Limited and Network Finances Limited. To her other son, Sidney Innes Sloss, she gave her shares in Amcol Limited. However, by the time of the death of the deceased, the shares in John Fairfax Limited had been sold. The plaintiff received no benefit from the gift of those shares referred to in the will. 7 Further, by her will the deceased gave to her son Sidney Innes Sloss (known in the family as Innes) a life estate in the property at 84 Harrow Road, Bexley. The remaindermen in respect to that property are the plaintiff and the defendant in equal shares as tenants in common absolutely or the survivor of them. The residue of the estate was divided equally between the plaintiff, the defendant and their brother Innes as tenants in common in equal shares. 8 The distributions to which I have already referred have were made to the beneficiaries in December 1997, August 1998 and December 1998. In addition, there has been a further distribution to the defendant in April 1999; and, in addition to his distribution from residue, Innes has regularly received rental income from the Harrow Road property of which he is the life tenant; that property is leased out at the present time. 9 The plaintiff has received, by way of such distribution, amounts totalling about $23,000, and the defendant has received an almost equivalent amount. Innes has received similar amounts, as well as rental income which has thus far totalled about $14,000. It is estimated that when a final distribution of residue takes place, each of the three children of the deceased will receive a further amount of about $155,000. 10 The plaintiff, as a child of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standard to bring the present proceedings. 11 The plaintiff was born on 28 August 1937. She is presently sixty-one years of age. The plaintiff qualified as a nursing sister. She still retains a practising certificate from the Nurses' Registration Board of New South, however, it is some time since she last practised in the nursing profession. 12 The plaintiff married in 1960. She and her husband had four children. The plaintiff's husband died on 16 November 1977, when their children were aged respectively sixteen, fourteen, twelve and ten years. 13 The plaintiff, as a result of her husband's death, receives a New South Wales government pension which is CPI indexed. At the present time that pension is in an amount of $705 a fortnight. The plaintiff resides in a house property at 16 Airedale Avenue, Earlwood. That property has been the family home of the plaintiff, and her late husband whilst they were married, and of their children until each child in turn set up her or his own independent establishment. At the present time, the plaintiff lives in that house property on her own. 14 The affidavit of Terence Ross Houlahan, a registered valuer, sworn 15 July 1999, gives as the valuation of that house property at the present time the sum of $410,000. 15 The plaintiff presently has a number of investments by way of term deposits and investment accounts which total $99,767. She is liable for her legal costs of the present proceedings, in respect of which an estimate has been placed before the Court in an amount of $28,000. 16 There has also been placed before the Court evidence concerning the present state of health of the plaintiff. That evidence was given not only by herself but also by way of affidavit from her medical attendant Dr Jane Asher. The plaintiff has suffered a traumatic injury to her spine which required traction and surgery and which has prevented her from performing work in the nursing profession which involves the lifting of patients. 17 The plaintiff has also in recent times undergone surgery for uterine cancer and currently suffers from diabetes and from anxiety. 18 The plaintiff has placed before the Court information concerning various repairs and renovations and refurbishment to her residence which she says that residence needs or which she says she desires to acquire. Those items include bathroom renovations, kitchen renovations, painting of the house, new carpets, new roof tiles and various appliances and items, such as a refrigerator, a video cassette recorder, a recliner lounge chair, a wheeled occasional table, a portable television and several other items. In total, the renovation, repairs and refurbishment and acquisition of household items comes to $45,800. 19 The plaintiff in her affidavit evidence set forth details of her pharmaceutical and medical expenses. It emerged from her oral evidence, however, that she has recently acquired a Commonwealth health card for senior citizens, and that thus her expenditure on pharmaceuticals is considerably less than it might have been before she received that card. 20 The plaintiff has for some years past undertaken casual work as an examination supervisor for the New South Wales Education Department. That work is for a relatively short period each year and involves supervising the Higher School Certificate examination and several other examinations. 21 The plaintiff owns a Toyota motor vehicle which was purchased second hand for $17,000 and the plaintiff ascribes to that motor vehicle a present value of about $13,000. 22 Evidence was given by the plaintiff concerning two trips overseas which she has had, one in September 1998 with a choir of which she is a member, extending over a period of six weeks to the United Kingdom and to America, and the other in 1987 to the United Kingdom and to Israel. 23 I have already referred to the fact that the plaintiff's four children are adult and are independent of her. Nevertheless, the plaintiff commendably has expressed a desire to assist her daughter, Megan, who is the youngest child of the plaintiff. Under cross-examination the plaintiff agreed with Counsel for the defendant that her house property at Earlwood was a very comfortable home; she also agreed that her present financial position was secure, that she was in a reasonably comfortable circumstances and that she presently has sufficient to pay for her needs. 24 Evidence was placed before the Court concerning the financial and material circumstances of the defendant. He is a retired bank officer. Jointly with his wife he owns their matrimonial home at Dundas (to which an estimated value of $240,000 was ascribed), a Mitsubishi Magna motor vehicle having a value of $8,000, and a camper trailer having an estimated value of $1,000. The plaintiff and his wife jointly conduct an account with the Commonwealth Bank, having a credit balance of about $4,000. The defendant worked with the Commonwealth Bank from 1956 until 1990. Upon his resignation from the bank in that latter year he received a superannuation entitlement with which he then set up his own superannuation scheme, which gives to him an income from that source of about $25,000 or perhaps a little less. His total taxable income for the 1996/97, year was $26,100. 25 The defendant set forth details of his weekly outgoings for himself and for his wife and for their youngest child, who still lives at home with them. Their other three children are independent of the defendant. The defendant was born on 6 April 1940, and is presently fifty-nine years of age. 26 The youngest of the three children of the deceased, Sidney Innes Sloss, was born on 27 April 1944. He is presently fifty-five years of age. 27 The evidence discloses that there is a considerable degree of disharmony between each of the three children of the deceased and the other two children. The plaintiff has no contact whatsoever with either of her brothers. Each of the plaintiff and the defendant has been in receipt of what might be described as somewhat eccentric communication from their brother Innes. 28 The defendant attempted to read in the present proceedings an affidavit sworn by Sidney Innes Sloss which had been prepared and filed not by the solicitors for the defendant but by a firm of solicitors which at the time had been acting for that deponent. Since the whereabouts of the deponent were unknown to either of the parties to the proceedings and since the deponent was not present to be cross-examined upon the affidavit and since the rest of the affidavit was objected to on behalf of the plaintiff, I refused to allow the affidavit to be read. 29 Details of the financial and material circumstances of Innes are therefore not available to the Court. It is, however, known that he has a not insubstantial interest in the estate of his late mother, the deceased, in that, firstly, he has a life estate in the property at Harrow Road, Bexley from which he receives an income, and, secondly, he has an entitlement to one third of the residue, which will, as soon as the present proceedings have been concluded, give him an amount of about $155,000. The gift of shares made to him by the will of his mother appears to have been of no practical benefit, since by the time of the death of the deceased, those shares were worthless. 30 It will be appreciated that each of the defendant and Sidney Innes Sloss is also an eligible person in relation to the deceased, each being a child of the deceased. 31 I have had the benefit of receiving from Counsel for the plaintiff a written outline of her submissions on behalf of the plaintiff, which written outline together with the chronology prepared by each party and the schedule of the plaintiff's investments and expenses will be retained in the Court file. 32 It was submitted on behalf of the plaintiff that the provision made for her by the will of the deceased was not adequate provision. The plaintiff referred to her present financial needs and to what has been described as her limited earning capacity. I have been taken to the decision of the High Court of Australia in Singer v Berghouse (1994) 101 CLR 201 and to Gordon v Parkes (1989) 17 NSWLR 1. In addition, I have also be taken to the decision of the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 and Permanent Trustee Company Limited v Frazer (1995) 35 NSWLR. I have also been taken to an unreported decision of Young J in Walker v Walker (17 May 1996) and to an unreported decision of Harper J in the Supreme Court of Victoria Baird v National Trustees Mutual Limited (22 November 1995). 33 The plaintiff under cross-examination agreed that she was very angry at the situation about the shares of John Fairfax Limited which the deceased, at the time of the making of her will, intended should be given to the plaintiff. Those shares were sold during the lifetime of the deceased. They realised an amount of $67,000. The fact that the deceased no longer owned those shares at the time of her death had the practical consequence that the plaintiff was deprived of that addition amount of $67,000. 34 The plaintiff agreed under cross-examination with the proposition that basically one of the reasons why she had instituted the present proceedings was that she did not get those shares. The plaintiff said that she just wanted some justice out of the whole situation. 35 In performing the first stage of the two stage process described by the High Court in Singer v Berghouse, at 208 - 209, it is necessary for the Court to determine whether the applicant in a claim such as the present has, by reason of the testamentary provisions of the deceased, been left without adequate provision for her proper maintenance,, education and advancement in life. 36 It is abundantly clear in the present case that the plaintiff has not been left without such provision. That conclusion of itself is sufficient to dispose of the present proceedings. It is unnecessary for me to proceed to a consideration of the second stage in the process described in Singer v Berghouse. 37 There is no justification in the present case for the intervention of the Court. The Family Provision Act constitutes a statutory qualification upon the freedom of testamentary disposition to which every person in this state is entitled. Neither the present financial and material circumstances of the plaintiff nor the provisions made for her by the will of the deceased are such as would justify any intervention by the Court. 38 The plaintiff is in a secure situation as far as her accommodation and her income are concerned. The desires which she has expressed --- refurbishment renovations to her house and acquisition of utensils and property and appliances for that house and new furnishings --- can all be adequately met out of the benefit which she will receive when the further distribution of residue from the estate of the deceased takes place and she receives a further amount of $155,000. It will not be necessary for her to have resort to her present investments totalling almost $100,000 or to reduce in any way the income which she receives from those present investments in order for her to effect the improvements and repairs to her house or to achieve any of the other desires expressed in her evidence. 39 That being so, it is unnecessary for me to proceed to a consideration of any competing claims upon the testamentary bounty of the deceased. I will merely say that the financial and material circumstances in which each of the other two beneficiaries find themselves certainly are not better than that of the plaintiff and, at least in the case of Sidney Innes Sloss, are probably worse. 40 However, the conclusion which I have already expressed concerning the failure of the plaintiff to demonstrate relevant need is of itself sufficient to determine the outcome of the present claim. I propose to dismiss the summons. 41 I make the following orders: 1. I order that the summons be dismissed. 2. I order that the plaintiff pay the costs of the defendant of the proceedings, such costs to be on the party and party basis, and that the defendant be authorised to retain from the estate of the late Mabel Edna Sloss ("the deceased") the difference between aforesaid costs and the costs of the defendant on indemnity basis; and that the defendant be to retain from the entitlement of the plaintiff the estate of the deceased the amount of aforesaid costs on the party and party basis. 42 The exhibits may be returned and any documents which have been produced by any party in answer to a subpoena or in answer to a notice to produce may be retrieved by the parties in the Court room as soon as I adjourn, so that they need not go back to the Exhibits Office. **********