Barrass v Kaine [1999] NSWSC 245

New South Wales Supreme Court CITATION : Barrass v Kaine [1999] NSWSC 245 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3930/96 HEARING DATE(S) : 25 March 1999 JUDGMENT DATE : 25 March 1999

Robyn Jan Barrass (P1) PARTIES : Rosemary Steven (P2) Judith Patricia Kaine (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Ms J. Needham (P) Mr. B. Skinner (D) SOLICITORS : Pye Rogers Fairfax & Patterson (P) A.C. Knibb Kaine & Associates (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 25 March 1999

3930/96 ROBYN JAN BARRASS & ANOR -v- JUDITH PATRICIA KAINE (ESTATE OF WILFRED V. WILLIAMS) JUDGMENT

1 MASTER: By summons filed on 7 November 1996 the plaintiffs, Robyn Jan Barras and Rosemary Gai Stevens, each claim an order for provision for their maintenance and advancement in life out of the estate of their late father, Wilfred Victor Williams (to whom I shall refer as "the deceased"), pursuant to section 7 of the Family Provisions Act 1982. 2 The deceased died aged seventy-eight on 30 April 1996. He left a will dated 15 August 1995, probate whereof was on 27 August 1996 granted to Judith Patricia Kaine, the executrix named in such will (who is the defendant to the present proceedings). 3 The chief assets in the estate of the deceased were two pieces of real property situate at and known as, respectively, 289 Bobbin Head Road, Turrumurra and 289A Bobbin Head Road, Turramurra. The property at 289 Bobbin Head Road, on which there stands a house presently rented, has a present value of $345,000. The property at 289A Bobbin Head Road, on which there also stands a house, has a present value of $425,000. The distributable estate of the deceased is in an amount of $837,492. 4 Having regard to the valuation of the two pieces of real property totalling $770,000, it will be appreciated that of the balance remaining, about $67,000, there will be little left after the payment of the costs of the present proceedings of the defendant executrix, and, in the event that either or both of them be successful, of the plaintiffs in the present proceedings. 5 The deceased was married three times. Of his first marriage, which took place on 10 May 1941, were born the two plaintiffs. In 1958, the deceased and his first wife separated, his first wife leaving the matrimonial home at 289 Bobbin Head Road, Turramurra (which at that stage had not been sub-divided into the two lots which presently comprise that land). 6 The deceased's first wife, in leaving the matrimonial home was accompanied by each of the plaintiffs. At that time, Robyn (who had been born on 22 April 1942 and who is presently aged fifty-six), was aged about sixteen, and Rosemary (who had been born on 28 October 1943 and who is presently aged fifty-five) was aged about fifteen. 7 The deceased continued to reside at the Bobbin Head Road property. He and his first wife were subsequently divorced, the decree becoming absolute on 21 September 1967. A deed between the deceased and his first wife in their divorce proceedings has been placed in evidence. 8 The deceased married his second wife, Edna Clarke, on 6 October 1967. He had apparently been in a de facto relationship with that lady since 1959. He remained married to his second wife until her death on 23 November 1990; that is, the relationship and the marriage of the deceased to his second wife obtained for more than thirty years, from 1959 until 1990. 9 At the time when he married his second wife, Mrs Edna Clarke, she was a mother of one child, Judith Joy, and was a widow. Judith, who was born on 15 February 1950, lived with her mother and the deceased from the time of the relationship between her mother and the deceased. Although only a step-daughter of the deceased, she was, it would appear, treated by the deceased as if she had been his own natural daughter. 10 After the death of his second wife, the deceased married for a third time, to Mrs Audrey Clare Wadds, on 27 May 1995. Upon the death of the deceased, some eleven months later, Mrs Audrey Williams became the widow of the deceased. 11 In the events which have happened, the deceased left to his widow, Mrs Audrey Williams, the house property at 289A Bobbin Head Road, which had been the matrimonial home throughout the period of their marriage. The deceased left the balance of his estate to his step-daughter Judith, now Mrs Messing. 12 The evidence discloses that a considerable financial benefit in building up the assets of the deceased had come to him from his second wife, with whom, as I have already recorded, he had been associated either in a de facto relationship or in marriage for, a period of some thirty-one years. 13 After the separation of the deceased and his first wife, contact between the deceased's elder daughter, Robyn, and her father was non-existent. She had no contact with him whatsoever from the time when she, her mother and her sister left the family home in 1958 until the death of the deceased. Contact between Rosemary and her father from the separation of the deceased and his first wife, in 1958, consisted of one telephone call from Rosemary to the deceased, when Rosemary was aged nineteen, that is in about 1962; another telephone call from Rosemary to the deceased when Robyn was aged twenty, that is in about 1963; and a third telephone call from Rosemary to the deceased, in about January 1996, Rosemary at that stage being aged about fifty-two. 14 On the first two occasions, the deceased hung up on Rosemary. On the third occasion, he apparently was more affable and invited her to visit. She did not however do so before he suffered a cerebral haemorrhage in April 1996. Rosemary visited him in hospital on 19 April 1996. He was only semi-conscious at the time and did not recognise her. He died eleven days later. 15 Each of Robyn and Rosemary in due course married. Robyn was married in 1964. She was widowed in 1977. She has four children, all now adults and no longer dependent upon her. Rosemary married in 1965. She and her husband, who is now fifty-six years of age, have three children. They are all now adults and none of them are dependent upon them. 16 Each of the plaintiffs, as a child of the deceased, is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provisions Act. As such, each of the plaintiffs has the standing to bring the present proceedings. 17 Each of the plaintiffs submits that an order for provision should be made in her favour out of the estate of their late father. 18 Neither of the plaintiffs is in particularly affluent financial circumstances. Robyn is in a worse situation than her sister Rosemary. Each of the plaintiffs owns her own home. Robyn, however, presently has a mortgage on the house property in which she lives. The house property is at a place called Naroota, apparently near Blacktown, and is worth about $250,000; the amount outstanding on the mortgage is about $29,000. She also has a debt owing on Bankcard in the amount of $12,000. The house is in need of renovations and repairs which would cost about $45,000. 19 Robyn is qualified as a nurse. However, in relatively recent times she has decided to move from that profession to the profession of a carer of foster children. She presently is responsible for four foster children, whose ages range between seven and eleven years. Each of those four children suffers emotional or intellectual problems. She receives an income from the Department of Community Services for looking after those foster children. Her weekly expenditure is not much less than her weekly income. She does not presently own her own motor vehicle. 20 Rosemary's husband conducts from their residence at Mt Colah a business of television and video repairs. The evidence given by Rosemary concerning her financial position and material circumstances, which of course include the financial and material circumstances of her husband, was not of the clarity one might have desired. Nevertheless, I am prepared to accept that she and her husband are not in particularly affluent circumstances. They certainly do not have any superannuation arrangements and they appear to have no funds to meet unexpected contingencies. 21 For the last financial years, Rosemary's taxable income has been in the range of $18,500 to $19,500, and apparently her husband has had an equivalent taxable income. They each receive drawings from the television and video repair business, which, however, is essentially carried on by Rosemary's husband, although she assists in the clerical and receptionist side of that business. 22 In addition, Rosemary works in a part-time capacity in the kitchen staff at the Turramurra Bowling Club. Indeed, it was in consequence of her employment in that position that she renewed contact with the deceased who was a member of that Club and that she made the final communication with the deceased in January 1994. 23 Of far greater significance, however, in this case, is the question of a lack of contact, total in the case of Robyn and almost non-existent in the case of Rosemary, between each of the plaintiffs and their father. It has essentially been submitted on behalf of the defendants, that the lack of contact was such that neither plaintiff should be regarded as being in a position where either she or the community would expect or the Court would recognise that any order for provision should be made for her out of the estate of the deceased. 24 Robyn has offered an explanation as to why she did not have any contact with her father from the time when her mother, Rosemary and herself left the matrimonial home in 1958. That explanation is that, during her childhood, she had suffered physical and sexual abuse at the hands of her father. She has given evidence concerning the details of that physical and sexual abuse. It must be recognised, of course, that the deceased is not present to give his version of those allegations. Nevertheless, if those allegations be true, then they certainly are justification for the feeling of the hatred which Robyn expressed as her feelings towards her father and would be sufficient justification for her not making any effort to contact the deceased for the remaining thirty-eight years of his life. 25 There has not been such a significant explanation by Rosemary as to why she did not have contact with her father. She said that after the two telephone calls made by her when she was aged nineteen and twenty, it was the fear of rejection that deterred her from making any other advances towards her father until January 1996. 26 Throughout the entire period from his separation from the mother of the plaintiffs until his death, the deceased was residing at what had been the family home before that separation. Each of the plaintiffs knew where to contact the deceased if she so wished. They each knew how to contact their father by telephone. They could have sent, but did not, cards or other communications to him. They clearly did not want to have any communication with him. 27 Despite the evidence of Rosemary of her desire to have a father/daughter relationship, she did not do anything for the best part of thirty years, from the time she was aged twenty until shortly before her father's death, to communicate with him. 28 However, it does not seem to me that the omissions on the part of the plaintiffs in taking any steps to have contact with their father are determinative of this matter. The deceased himself did not manifest the slightest interest in his two daughters after his first wife left taking with her the two daughters of the marriage, the only two children of the deceased. He appears to have made no effort whatsoever to contact them. 29 Apparently, the mother of the plaintiffs kept in communication with the mother of the deceased. There would have been no difficulty in the deceased contacting either or both of his daughters if he had wished. He certainly knew the dates of their birthdays, and there is a suggestion that he had some knowledge of the fact that Rosemary was residing at Mt Colah. Obviously, the plaintiffs could have done more to re-establish the relationship if they had so desired, but, by the same token, so, too, could their father. He clearly abdicated all responsibilities of a father when his first wife departed the matrimonial home with his two daughters in 1958. 30 I have reached the conclusion that the lack of contact between the plaintiffs and their father is not such as to deprive the plaintiffs from the benefit of any order for provision in their favour, an entitlement to which they might otherwise have established. 31 I have already referred, at least in general terms, to the financial and material circumstances of each of the plaintiffs. What Robyn requires is an amount of money sufficient to assist her to renovate her house, to pay off her mortgage and have some funds available for contingencies. In the case of Rosemary, what she requires is some fund to give a degree of security for herself and her husband when they are no longer able to conduct their present business. 32 Any order for provision in favour of the plaintiffs must however be approached in the light of any competing claims upon the testamentary bounty of the deceased. In the present case, the only other such competign claims are those of Mrs Audrey Williams, the widow of the deceased, and Mrs Judith Messing, the step-daughter of the deceased. They are the two beneficiaries named in the will of the deceased. He clearly recognised the obligation which he had to each of those ladies. 33 The deceased recognised an obligation to provide accommodation for his widow. He recognised an obligation to the step-daughter who he has treated as if she were his own natural daughter and, in doing so, he appears to have recognised the expectation on her part that she would benefit from his estate, since the entirety of the estate of Mrs Messing's own mother, Mrs Edna Williams, had passed to the deceased upon her death in 1990. 34 I have already referred to the fact that, during her lifetime, Mrs Edna Williams assisted in the improvement of financial circumstances of the deceased. 35 It will be appreciated that, to the extent that any order for provision is made in favour of the plaintiffs, the benefit given to one or both of the beneficiaries named in the will of the deceased will thereby be reduced. 36 Evidence has been placed before the Court concerning the financial and material circumstances of each of Mrs Audrey Williams and Mrs Messing. Those circumstances are not such as should, in my view, have the effect of reducing or even extinguishing any order for provision an entitlement to which each of the plaintiffs might otherwise have established. Each of Mrs Williams and Mrs Messing is in material and financial circumstances that are considerably better than those of each of the plaintiffs. Indeed, as I understand it, the defendant does not submit that any order for provision an entitlement to which the plaintiffs might have established should be reduced on account of the financial and material circumstances of the two beneficiaries. 37 Nevertheless, the Court must take into account the obligations and responsibility of the deceased to the two ladies who are the beneficiaries named in his will, being his widow (albeit of only eleven months' standing), and his step-daughter, with whom he had a close relationship for a period of almost thirty years. 38 In all the circumstances, I have arrived at the conclusion that it is appropriate that Mrs Robyn Barrass, should receive out of the estate of the deceased a legacy in the sum of $100,000 and that Mrs Rosemary Stevens should receive out of the estate of the deceased a legacy in the sum of $60,000. 39 The question then arises as to how those legacies should be borne, having regard to the fact that Mrs Audrey Williams is in residence in 289A Bobbin Head Road. Unless the Court were to give some indication of how those two legacies should be borne by the estate, the almost inevitable consequence would be that they would come out of that part of the estate which under the will passes to Mrs Messing. 40 It seems to me that in the circumstances of this case the proper course is that these legacies should be borne proportionately by the assets which go to the two beneficiaries named in the will. That is, that they be borne both by the share to which Mrs Williams is entitled under the will and the share to which Mrs Messing is entitled in the proportion of those shares. 41 Similarly, it seems appropriate that the costs order which I propose to make should also be borne by the interest of the two beneficiaries in the same proportion as their interests under the will. 42 The orders I make are as follows:- 1. I order that Robyn Jan Barrass receive out of the estate of the late Wilfred Victor Williams ("the deceased") a legacy in the sum of $100,000 and that Rosemary Gai Stevens receive out of the estate of the deceased a legacy in the sum of $60,000, such legacies not to bear interest if paid on or before 25 June 1999, and, if not so paid, to bear interest at Supreme Court rates. 2. I order that the aforesaid legacies be borne proportionately by the interests in the estate of the deceased given by the will of the deceased to Audrey Clare Williams and Judith Joy Messing in the same proportion as their interests respectively bear to each other. 3. I order that the costs of the plaintiffs 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. 43 SKINNER: Could I put to your Honour and have it noted what you have in mind by way of proportionment would be on the most recent valuation evidence in the affidavit of Judith Kaine, Executrix, namely 289 Bobbin Head Road, Turramurra, has a sworn value of $345,000 and 289A Bobbin Head Road has a sworn value of $425,000. 44 MASTER: That can be noted, that it will be in those two proportions. **********