Ham v Kemp [1999] NSWSC 618

New South Wales Supreme Court CITATION : Ham v Kemp [1999] NSWSC 618 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1426/99 HEARING DATE(S) : 22 June 1999 JUDGMENT DATE : 22 June 1999

PARTIES : George Edward Ham (P) Adrian James Kemp (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. J. R. Wilson (P) Mr. P. Blackburn-Hart (D) SOLICITORS : Turnbull Hill Lawyers (P) L. Rundle & Co (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday. 22 June 1999

1426/99 GEORGE EDWARD HAME -v- ADRIAN JAMES KEMP - ESTATE OF AGNES FORBES GRIFFITHS HAM JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 18 February 1999 the plaintiff, George Edward Ham, claims an order for provision for his maintenance and advancement in life out of the estate of his late wife, Agnes Forbes Griffiths Ham (to whom I shall refer as "the deceased"). 2 The deceased died on 25 September 1997, aged 91 years. She left a will dated 1 May 1996, probate whereof was, on 22 December 1997, granted to Adrian Kemp, the executor named in such will (who is the defendant to the present proceedings). By that will the deceased gave to the plaintiff a right to reside in the house property situate at and known as 6 Hudson Street, Whitebridge, which, had been the matrimonial home of the plaintiff and the deceased throughout the period of their marriage. That right of residence was qualified in clause 4 of the will as follows:- I DIRECT that my Husband GEORGE EDWARD HAM shall have the right to reside in my home being the property situate and known as 6 Hudson Street, Whitebridge during his lifetime or until he remarries or enters into a defacto relationship of man and wife or until he no longer requires it PROVIDED THAT he personally resides therein and pays all rates and taxes on the said property and keeps the same in a good and habitable state of repair (fair wear and tear excepted) and also keeps the same insured against fire or other damage to the satisfaction of my Trustee. 3 Clause 5 of the will is as follows:- I DECLARE that should my aforesaid Husband no longer wish to reside in my said real estate then my Trustee shall be entitled to sell the said property and to apply the proceeds of sale towards the purchase of another property of equivalent value for the use and occupation by my aforesaid Husband during his lifetime. 4 The deceased gave her furniture, chattels and household effects to the plaintiff and gave the residue of her estate between her two children Adrian James Kemp and Helen Emily Bennett. The assets of the estate consisted only of the house property at 6 Hudson Street, Whitebridge and the furniture in that property. The present value of the Whitebridge property has been agreed between the parties as being $110,000. 5 The plaintiff was born on 1 December 1913. He is now 85 years of age. Each of the plaintiff and the deceased had previously been married before they married each other on 20 December 1969. At that time the plaintiff was a widower and the deceased was a widow. Each of the plaintiff and the deceased had children by his or her former marriage. I have already recorded that the deceased had a son and a daughter; the plaintiff had two sons. The plaintiff at the time of his marriage to the deceased owned a house property. When they married he entered into residence with the deceased in her Whitebridge property. The plaintiff subsequently sold his previous residence at Belmont. 6 The plaintiff had been a miner by occupation. After his marriage he did some part-time work. In 1978, when he was age 65, he retired from employment and commenced to receive the Age Pension, which he still receives. He also receives a miner's pension. At the present time the plaintiff's income is in a total amount of $426.20 a fortnight, consisting of the Age Pension of $353.90 a fortnight and the miner's pension of $72.30 a fortnight. The plaintiff presently has savings of about $32,000, which savings are invested. 7 The plaintiff has suffered ill health. In the last year he has suffered two cerebral haemorrhages, the most recent being only a matter of about two weeks ago. He has only come out of hospital within the last couple of days before the hearing. The plaintiff suffers problems with his vision. He has no sight in his left eye and his vision in his right eye is impaired. Because of his poor eyesight the plaintiff does not cook for himself. He receives the benefits of Meals on Wheels throughout the week and at weekends his daughter-in-law usually provides at least one meal for him. The plaintiff has not driven a motor car since his eyesight deteriorated. Apparently in her later years the deceased was not able to cook and the plaintiff and the deceased even during her lifetime received some assistance from Meals on Wheels. 8 I have had the advantage of having the plaintiff give oral evidence during the hearing and of seeing him in the witness box. He has some problems with his hearing and also he has difficulty walking. 9 There has been placed before the Court evidence from Dr Kelly McCann, a medical resident officer employed by the Hunter Area Health Service and currently working at the John Hunter Hospital at Newcastle, where the plaintiff was most recently admitted on 8 June 1999. Dr McCann has provided a report dated 18 June 1999 setting forth the plaintiff's physical problems. In that report under the heading "Physical", she says:- [A]mbulant with walking stick with directions given. Poor vision - needs Home Care supervision twice daily for medication. Receives meals on wheels for three days/week, otherwise independent. Safe at home with services for the moment. 10 It would appear that some time ago, apparently one or two years ago, the plaintiff, with the intention of residing therein permanently, went to a residential unit at an establishment known as Amaroo, which I gather is a retirement establishment. However, the plaintiff suffered some problems in his relationship with those administering that establishment and decided to return home to the Whitebridge residence. 11 The plaintiff seeks an order that, in lieu of the right of residence provided in the will of the deceased, he receive the entire estate absolutely. The basis upon which it is submitted that such an order should be made in his favour is the requirement that he have both independence and flexibility in his lifestyle. 12 The defendant has in his affidavit made what is, in effect, an open offer concerning the provision of accommodation for the plaintiff in either a hostel or a nursing home. That open offer has been replicated by Mrs Bennett, the other beneficiary named in the will of the deceased. 13 The defendant has placed before the Court evidence concerning his financial and material circumstances. He is presently unemployed on account of a work related injury. His employment was terminated in April of this year. He had been employed by the Singleton Hospital as an engineer. The defendant's wife also had her employment terminated. They presently live at Glennie's Creek near Singleton in a home jointly owned by them which is worth about $120,000. The defendant has savings of about $6,000. He, at the time of his affidavit sworn on 22 April 1999, said that he would receive superannuation which he would use to buy a needed new car, to effect needed improvements to his residence and to fund a pension for his retirement. 14 Mrs Bennett owns her own home jointly with her husband. They are self-funded retirees and are comfortable financially. Mrs Bennett is aged 65. The defendant is aged 61. 15 It is in the light of the foregoing circumstances relating to the financial and material situation of the plaintiff and of each of the two other named beneficiaries that the Court must approach the present claim. 16 The plaintiff, as the widower of the deceased, is an eligible person within paragraph (a) of the definition of the phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. Each of Mr Kemp and Mrs Bennett, as a child of the deceased, is also an eligible person in relation to the deceased, being such an eligible person within paragraph (b) of that definition. 17 I have already referred to the submission on behalf of the plaintiff that after a marriage of almost 28 years, during much of which he was the principal breadwinner and during most of which he and the deceased conducted a joint bank account, the plaintiff should receive the house property absolutely, so that in his declining years he will have both security and flexibility in his accommodation and in his lifestyle. 18 The plaintiff in his oral evidence said that he wanted to go back to the Whitebridge house. It is commendable that he wishes to remain there as long as he can. The medical condition of the plaintiff suggests, however, that not merely is it unlikely that he will be able to remain living on his own in the Whitebridge house for very much longer, but it is probably from his own point of view undesirable, possibly even unsafe, that he continue to do so. 19 However, the limited right of residence given by the will and the further limited right provided by the will for the purchase of a subsidiary residence certainly do not make adequate provision for the plaintiff in the circumstances which his years and his physical health now require. 20 The question is whether the house property should be given to him absolutely or whether he should receive some more limited form of benefit which will allow him to remain in that house property as long as he is capable of looking after himself and will then allow him to enter into a retirement village or, if necessary, a nursing home where he will be able to receive whatever care he needs. 21 In deciding that question, it seems to me that the Court must properly consider the situation in which the beneficiaries find themselves, in particular the defendant Mr Kemp. The Court should not make an order disturbing a will of a testator beyond what is necessary to benefit the applicant. In the instant case it seems to me that the beneficiaries should not be deprived of the totality of the interest in remainder to which they are entitled under the terms of their mother's will. 22 I have reached the conclusion that the plaintiff is entitled to an order of the nature of that prepared by Mr Blackburn-Hart of Counsel, for the defendant, but that the operation of such an order should come into effect only at a time of the plaintiff's own choosing when he is no longer able to continue to look after himself on his own in the Whitebridge residence. 23 It is appreciated that the costs of the defendant must be paid from the estate of the deceased. He has carried out the obligation of defending the terms of the will of the deceased and therefore he should not be out of pocket for carrying out that executorial duty. The costs of the defendant are estimated to total about $12,000. The costs of the plaintiff himself are estimated to total about $20,000. The plaintiff has assets which will be just sufficient to meet those two amounts of costs. But if the costs of the defendant are to be paid out of the estate of the deceased, then, if the plaintiff wishes to remain in the Whitebridge home for as long as he can, he will need to provide for the defendant's costs out of his own pocket. Otherwise the defendant will be entitled to sell and will be justified in selling the house property in order to meet such order for costs. 24 I propose, therefore, to make some emendations to the draft short minutes which have been prepared by Mr Blackburn-Hart, which will give effect to the conclusions which I have just expressed in my reasons for judgment. 25 (Discussion ensued in relation to the Master's suggested emendations to the short minutes) 26 (Counsel addressed on costs) 27 I make orders as in paragraph 5 of the short minutes of order dated 22 June 1999, initialled by me and filed in Court this day. I will have a photocopy made of the short minutes as emended by me to be handed to each Counsel. **********