Finlay v Mack [2001] NSWSC 443

New South Wales Supreme Court

CITATION : Finlay v Mack [2001] NSWSC 443 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2716 of 1999 HEARING DATE(S) : 28/05/01 JUDGMENT DATE : 28 May 2001

PARTIES : Richard Bruce Finlay v Robert David Mack & Anor JUDGMENT OF : Master Macready at 1

COUNSEL : A. Hill for plaintiff J.E. Armfield for defendant SOLICITORS : McCabes for plaintiff C.P. White & Sons for defendant CATCHWORDS : Family Provision. Application by son who was left a minimal legacy by his mother. Mother unreasonably cuts off relationship with son. Discussion of conduct disentitling. Order made for legacy of $100,000. DECISION : Paragraph 37

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Mary Finlay who died on 16 December 1997 aged eighty-three years. She is survived by one son who is the plaintiff in the action. By her will which was made on 11 October 1991 she left a legacy of $10,000 to the plaintiff and left the residue of her estate to her nephew and nieces who are Robert David Mack, Wendy Mack and Jennifer Zandia. 2 The estate has been reduced to cash and the present amount, after allowing for defendants' costs, is $376,052. The plaintiff's costs are in the order of $32,500. 3 It is necessary to deal with some of the chronology of the family. The deceased herself was born in 1914. The plaintiff was born on 8 March 1949. He left school in 1964 at the age of sixteen and started a five-year apprenticeship in the printing industry. In 1976 he met his present wife, Patricia Finlay. At that stage she had an eight-year old son from a previous marriage. Her son is suffering from hydro-encephalitis and requires some care in his upbringing. 4 In 1997 the plaintiff, then aged thirty, moved out from home and lived with his now present wife in the house in which she and her son were living. At this stage there were visits by the deceased and her husband to the plaintiff at that house. 5 In 1980 the plaintiff was made redundant and started a further course to qualify himself with retraining. In 1982 the deceased's husband was killed in a motor vehicle accident. After that in 1983 the deceased made a will in which she appointed the plaintiff as executor of her estate and left the estate to him. 6 The relationship continued between the plaintiff and the deceased between 1983 and 1985. There had previously been a problem with the relationship in that in 1980 apparently the deceased's father decided not to continue to visit the plaintiff and his wife. He seems to have taken a set against the plaintiff's wife from an early stage. 7 In 1985 problems started to arise in the relationship between the plaintiff and his mother. At first these simply extended to her asking him not to bring his wife with him when he came to visit. He would visit her on a reasonably regular basis. That course of conduct changed around the time in 1985 with what has been described in this case as an ultimatum. In the words of the plaintiff his mother said that she wanted the plaintiff to come and live at home and look after her. That clearly presented the plaintiff with two choices: one was to leave his de facto wife and stepson and live with his mother or alternatively not to do so. 8 There were a number of discussions thereafter in which the plaintiff tried to work out some compromise with his mother but they all came to nothing. Ultimately she put it on the basis of an ultimatum to him. According to the plaintiff she said that if he chose not to live with her then she would disown him and would never wish to see him again. 9 That difficult decision was one which the plaintiff took. He decided to stay with his wife because at that time that is where his obligations lay. However, he did not stop contact which he had with his mother. The plaintiff, according to his evidence and that of his wife, continued to send cards to his mother on occasions of birthdays and other family occasions. In addition in September 1987 the plaintiff married his wife, Patricia. They sent an invitation to the wedding in the plaintiff's own handwriting to his mother. The plaintiff stated that the deceased neither replied to the invitation nor did she go to the wedding. The plaintiff's wife, Patricia, rang the deceased to see if she would come to the wedding but the deceased simply hung up on her. 10 The evidence in this case includes, as it often does, evidence of statements made by the deceased to many other people. From this time on other members of the family - and I will come back to this later - played a larger role in her life particularly her nephew Robert Mack. Statements made by the deceased after this event have to be taken with some care. It is not unknown for people in this family situation to say different things to different people depending on what they want people to believe. 11 There is evidence which comes from psychiatric reports dealing with the plaintiff's depression which seem to indicate that this problem is one which was a very important thing to him and emerged in 1992. There is clear reference in the histories taken by doctors to this ultimatum and it played an important part in his illness. Unfortunately however statements made by the deceased to other members of the family tried to portray quite a different picture, no doubt so that the deceased could be regarded favourably or maybe she could not herself face what she had done to her son. 12 The next event that occurred in the relationship was apparently in March 1991. The plaintiff's wife rang the deceased to tell her that they were moving, in other words to keep the lines of contact open, even though the deceased had said she never wanted to speak to her son again but that again evoked no response from the deceased. 13 In 1991 the plaintiff wrote to his mother about a block of land which he said in evidence he had purchased but which was in his parents' names. That letter was dated 28 August 1991 and he started the letter, "Dear Mum, sorry to intrude you at this time. Due to circumstances ... " etc, and he went on to describe the fact that he needed to sell the land and wanted it put in his name. There is not much evidence to satisfy me that the plaintiff had paid for the land. There is his sworn evidence but he said in cross-examination that he could not produce any documentary evidence to support his claim. However he had the documentary evidence to show that he paid the rates and outgoings on it for many years. It seems to me fairly strange that he would do that for a number of years if what he said was not true and I am prepared to accept his version of the events. 14 It is said that this letter was cold, it finishing "Yours faithfully" but one has to see it in the context of a relationship where the plaintiff had been told that his mother had disowned him. He could not immediately assume that that had changed or that his approaches would be welcome. He had to keep it fairly straightforward in order to produce some response from the deceased herself. It produced a letter from her solicitor which led to the transfer of the property. 15 There was no effort at reconciliation by the deceased. A personal letter by the plaintiff was not responded to by the deceased. It is interesting to see that she then, some month or two later, executed a will made 11 October 1991 in which she said, according to that, that she had received no contact and that she had decided to leave him $10,000 and nothing further. She also made a statement that she had decided to transfer her interest in the property. She does not deal with the history of how it came to pass. 16 By 1993 the plaintiff was having treatment for depression. In 1995 he had to take four months off work. On 16 December 1997 the deceased died. 17 In applications under the Family Provision Act the High Court has recently in 1994 181 CLR 201 in Singer v Berghouse spoken about the two-stage approach the Court must take. At 289 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 inter-relationship 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.