Scotts v Kleverlaan [1999] NSWSC 1218

New South Wales Supreme Court CITATION : Scotts v Kleverlaan [1999] NSWSC 1218 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2465/98 HEARING DATE(S) : 25/11/99 and 26/11/99 JUDGMENT DATE : 26 November 1999

PARTIES : June anne Scotts v Adelbertus Kleverlaan JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M Gorrick for plaintiff Mr R.W. Tregenza for defendant SOLICITORS : F.J. Smith & Co., Newport for plaintiff David Buckner, Collaroy for defendant CATCHWORDS : Family Provision. Application by a daughter under the Family Provision Act. No matter of principle. DECISION : Paragraphs 43-45

- 1- THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 26 NOVEMBER 1999

2465/98 - JUNE ANNE SCOTTS v ADELBERTUS ANTHONIUS MARIA KLEVERLAAN - ESTATE OF ALYS JOAN YOUNG & ANOR

JUDGMENT

1 MASTER: This is an application in respect of the estate of the late Alys Young who died on 2 August 1997. The deceased was survived by her daughter, the plaintiff, a number of step children and other relatives. Under her will, which was made on 15 February 1993, she left her estate equally between the plaintiff, her daughter, Ronald Keith Young, her stepson, and Joanne Christine Key, her niece, and Valerie Judith Barrow, her stepdaughter. 2 The estate consisted of a unit which has been sold. The distributable estate is $215,753.71. Costs have been incurred in this matter on the defendant's behalf in the sum of $11,000 and on the plaintiff's behalf in the sum of $9,500. Of the distributable estate one is left with $195,253. Each beneficiary would therefore take in the order of $48,813. 3 I will give a little bit of the history before dealing with some of the other matters that have to be considered: The plaintiff was born on 29 June 1931. She was the only child of the deceased and the deceased's first husband. Valerie Barrow, one of the beneficiaries, was born on 17 December 1932. She was a daughter of Mr Keith Young. In 1934 the plaintiff's father died. Also in 1934 on 15 August Ronald was born, the son of Keith Young. 4 The deceased and Keith Young commenced cohabitation at de facto partners in the 1940s. The precise time is a matter of some dispute, the plaintiff suggesting that it was between 1940 and 1943, and Ronald, who seemed to have a reasonably clear recollection, seemed to suggest 1949. I think that probably is more likely. At that stage of course the deceased had one daughter, who is the plaintiff, and Mr Keith Young had two children, Valerie and Ronald. 5 Initially, probably for some years, Valerie and Ronald had been living with their mother. In 1949 and 1951, according to Ronald, he resided with the deceased and his father, Keith Young. Although there were times when he was away during that period, I think his recollection is probably more accurate than the plaintiff's and I accept that he lived there in that time. 6 Valerie, who lived with her mother, did not join the household which was comprised of the deceased and Mr Young. 7 The plaintiff in 1944 commenced her education at Brigidine Convent and completed that in 1948. She then obtained the leaving certificate and commenced nursing at Royal Prince Alfred hospital. On 25 December 1945 John Flynn, a nephew of the deceased who is one of the executors of the deceased's will, was born on and 29 December 1952 Joanne Christine Key was born. She was the daughter of the deceased's sister and thus a niece of the deceased. 8 In 1954 the plaintiff married Robert Sydney Scotts. Following her marriage, she and Mr Scotts moved into the home until 1973. Eventually between them they had eight children. At a time which is also disputed on the evidence Maria Flynn, a sister of the deceased, died, leaving three children, Joanne Key, Terrence and John, who is a coexecutor of the will of the deceased. There is one version of 1955 and another of 1962. 9 It seems that even before the death of Maria Flynn the deceased and Mr Young would spend a substantial amount of time looking after the family and this was because Maria Flynn apparently was quite sick. After she died the deceased and Mr Young moved in with the children and brought them up in their household. In effect, the deceased and Mr Young started a second family after having raised their children beforehand. Apparently in 1960 the deceased and Mr Young married. 10 Between 1968 and 1969 they and the family moved to the northern beaches and lived there during that period. In 1989 the deceased and Mr Young purchased a retirement unit in a retirement village at 82 Avalon Parade, Avalon, and shortly after that the deceased became ill. 11 At this stage the plaintiff and her husband provided assistance for the deceased. They paid for some ten weeks of accommodation in a private nursing home at a cost of some $8,000. The plaintiff in this period, and indeed from 1972, with her husband enjoyed success as property developers and they had an affluent lifestyle in Palm Beach and had assets worth many millions of dollars. It was in this period that the plaintiff suggested to the deceased that it would be inappropriate for her to take anything under her mother's will. 12 Unfortunately things changed for the plaintiff in 1991. She and her husband suffered complete financial ruin. They had been successful property developers and went into a development with the bank which unfortunately did not succeed, due to a fall in property values. Effectively they lost everything, including their home. 13 Matters didn't stop there because unfortunately the plaintiff's husband then deserted her and her marriage of some forty years duration was finished. 14 In 1991 Keith Young became quite ill and moved into a nursing home and died in late 1992. 15 At about this time both the plaintiff and the deceased joined the Avalon RSL club and contact was maintained between the plaintiff and the deceased from then until her death. Certainly there were occasions when the plaintiff and the deceased were together for a number of days during this period and indeed even prior to this the plaintiff travelled fairly extensively and was often away for a month or more at a time. In these circumstances, a lot of the burden of looking after and assisting the deceased fell on Joanne Key. 16 On 15 February 1993 the deceased made her last will and on that occasion the change was suggested to Joanne that half of her share should pass to the plaintiff because of her changed situation. 17 In 1996 the deceased's health failed and she eventually was accommodated in Greenwich Hospital and she died on 12 August 1997. 18 In matters such as this the High Court has in Singer V Berghouse, (1981) CLR 201 at 209, set out the approach that the Court must take. 19 As directed by the High Court I turn to consider what the plaintiff's present situation is. She has a car which is an eleven year old Mercedes 190 and various furniture and effects. Apart from this she has absolutely no assets. Her medical benefits or health cover is provided and she receives a pension of $436.80 per fortnight and earns about $100 per fortnight from baby sitting. She is presently 68 years of age and over recent years she has had a friend, Mr Butcher, an English gentleman who is obviously of some means. From time to time he arranges at his cost for the plaintiff to meet him either in England or elsewhere for holidays together. He came to Australia for about a year to be near the plaintiff. It seems that the relationship is one of close friends. There is no suggestion of marriage between the plaintiff and Mr Butcher. He apparently has family, including parents, in England and she has her family of some eight children who are in Australia. 20 The plaintiff has received assistance from her children with accommodation. She is presently living with one child and moves around the various children from time to time. She also receives assistance from the children when she is short of funds. 21 It is to be remembered that the plaintiff and her husband, during the times when they were wealthy, contributed to the welfare of the deceased and spent monies to provide for nursing home accommodation, with from time to time gifts of furniture, television and matters of that nature. 22 There was some suggestion that Mr Young advanced monies to the plaintiff's husband but, given the imprecision of the evidence, I do not think this fact is a matter that is appropriate to take into account. 23 The plaintiff herself, as I mentioned, is advancing in years. She does have some artery disease and high blood pressure. I will come back to her needs in due course. 24 It is also necessary to have regard to the situation of others who have a claim on the bounty of the deceased. Those are the other beneficiaries in this case. There are some other people who are possible eligible persons but they have been given notice and do not make any claim. 25 There is Joanne Key who is a niece of the deceased. She is married, aged 47, with two children aged 16 and 10. She and her husband have a home worth $470,000 which is subject to a mortgage of $220,000. She has a $6,000 car, some furniture and effects and debts of some $5,000. Her husband who has a position at Volvo earns $36,750 per annum. Joanne herself has income from child care which in 1998 was $6,567. She also has a regular income as a home carer of about $150 a fortnight. 26 So far as her relationship with the deceased is concerned it is important to note that even though she was a niece, she was raised as a daughter from a very young age, probably as young as two or three years. She was part of the family until she left home to marry in 1976. Subsequently she maintained a very close relationship with the deceased. As the deceased got older, it was Joanne who looked after her and frequently visited her, drove her to appointments and the like. 27 It is also important in the case of Joanne to note her contribution to the estate. When Joanne was very young an account was opened by Mr Young and instead of her receiving presents, whether they be from her effective parents or from other members of the family, she was given the money and the money was put into that account. She was shown the savings book on birthdays and Christmas so that she could see how much was there and her recollection of the amount in the account was probably in the order of $4,500. The book itself cannot be located. 28 Apparently in 1966 Mr Young told Joanne that he had used the money in that account towards the purchase of the home at Newport which was purchased for $15,000. He said however that in order to make up for having done that, he had left Joanne half of the home. That was a contribution of a substantial nature to the house which was the property of the deceased and Mr Young. 29 The other thing to note is something I have referred to and that is when the last will of the deceased was prepared it was in fact Joanne who suggested to the deceased and Mr Young that because of the plaintiff's situation, half of her share should be given to the plaintiff. 30 I turn to the situation of Valerie. She is married, she is aged 67 and apparently has no dependent children. With her husband she has a property in the country in which they live and which they had assessed recently as having a value of $675,000. In November 1999 they gave a statement of financial position to the ANZ Bank, no doubt due to other arrangements with that bank. Their total assets were listed as $1,060,000 and debts were shown as $197,639. They had an overdraft facility with the bank. Their net assets were $862,000 361. 31 Valerie's income situation is not secure, notwithstanding the large asset base. She works in her husband's business which is involved in marketing in South-east Asia. That business has suffered a decline because of the downturn in the Asian economy. Last year she received $20,125 from the business. 32 So far as her relationship with the deceased is concerned, it is important to note that she is different from the other beneficiaries in that she is not part of the family unit which comprised the deceased and Mr Keith Young. This is not because of her design but due to circumstances which surrounded the break up of her parents' marriage and the actual situation of the accommodation that was available. She was brought up initially by her grandparents. 33 It is further important because although there was a closeness in the sense of visiting once a month, there was not a family bond with the deceased. After the death of Mr Young, Valerie would keep in contact with the deceased by phone. However, she did not see the deceased prior to her death. She does not seem to have had as close contact with the deceased as the other beneficiaries have had and this, given the situation, is not surprising. 34 Ronald Young is married. He is 65 years of age and is a retired teacher. He has no dependents. He and his wife own between them a house worth $320,000. He has a car worth $11,500 and shares worth $30,000. He has a half share of a bank account and his share is in the order of $31,000. His wife has some assets of her own, an investment property worth $160,000 and shares worth $180,000. His income is $31,092 per annum. He has not made any contributions to the estate of the deceased, like Joanne has. 35 As far as his relationship with the deceased is concerned I am happy to accept his evidence that he lived there between 1949 and 1951 and also he returned to the family unit between 1954 and 1956. After 1956 he was posted as a teacher to Queanbeyan. Clearly in the time he lived there he was treated as a son by the deceased and she had a lot to do with his upbringing or, as he described it in the evidence, "his civilisation". Even when he was away in the country Ronald would come back to Sydney several times a year and would see the deceased and his father on those occasions. After his return to Sydney in 1962 he still kept in touch with the deceased and Mr Young. He also has not contributed to the estate. 36 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for maintenance and education and advancement in life. It is only if this occurs that the Court can interfere with the provisions of the will. It is not a matter of the Court making what might seem to be a more fair and just will. 37 The plaintiff says she needs a home to live in. All the other beneficiaries have homes and she is in a situation, in advancing years, when she depends upon her children for accommodation. She naturally does not want to impose upon them although she has been able to cope with this situation for a while. She has investigated the cost of units at Bayview Gardens, the retirement village. Two bedroom units are $240,000 and one bedroom units $160,000. Perhaps that is not really what she wishes to do at this stage because she has also been looking at the cost of a mobile home at the Lakeside Caravan Park at Narrabeen. One of those would cost $130,000 and would give her a place with a bedroom and bathroom and appropriate facilities. 38 The question arises as to whether it is appropriate that she should be provided with sufficient funds so that she can have a home. These matters are to be judged by what the community expects of a testatrix when she fulfills her duty to those who are dependent upon her. 39 In Shearer v The Public Trustee, a decision of Young J on 23 March 1998, his Honour had these comments to say in talking about the community expectations: "Where the applicant is... However that is not the case with children and as far as I am aware it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own." 40 Fortunately for the plaintiff, two of her children have said that they will be able to provide $30,000 each to assist her to obtain some accommodation. It is not to be forgotten that under the present distribution of the estate she will get at least $48,000. 41 In my view some modest extra legacy would be appropriate to assist her. The question which arises is where the burden of any extra provision should fall. Certainly, as I can see, looking at the contributions of the various beneficiaries to the deceased, it is the case that the burden should not fall upon the share passing to Joanne Key. She has contributed to the estate and was a great support and help to the deceased during the deceased's lifetime. 42 Generally I think the burden should be shared between the shares passing to Ronald and Valerie. There is a difference in the family relationships, to which I have referred earlier, and this to my mind makes it appropriate that Valerie's share should suffer the greater burden. 43 Accordingly the orders I make are as follows: 1. The plaintiff, in addition to her interest under the will of the deceased, to receive a legacy of $40,000. 2. Two-thirds of the legacy as to $30,000 to be borne by the share passing to Valerie Judith Barrow and $10,000 by the share passing to Ronald Keith Young. 44 The plaintiff's costs to be paid on a party and party basis and the defendant's on an indemnity basis out of the estate of the deceased. 45 I order the exhibits may be returned.