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 - 1- 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 18 It is necessary to return to the situation of the plaintiff in terms of consideration of his needs. He is married and has to support his wife who has ceased her part-time work because of illness. Clearly he has to provide a home for his wife and also for his stepson. His stepson suffers from disability but is able to earn some money, which makes him somewhat self-supporting. Because of the disability it is clear that he will have to remain at home for the foreseeable future. There is thus a need by the plaintiff to provide for his stepson who has been part of his home for some years. 19 The plaintiff is fifty-two years old and he does suffer from depression which on occasions causes him to take sick leave. He is treated for it and seems to be still able to work. He does however have problems with the back of his neck which restrict his employment opportunities. His employment prospects are not good. His employer has recently decided to reduce the workforce and the nine people in his classification are to be reduced to one. Three of them have already left and if the plaintiff is made redundant then it is apparent that he will have a redundancy payment of something in the order of $90,000. He is in the situation where he and his wife have a house worth $350 to $375,000. He has shares valued at about $70,000 and he has superannuation which he will not be able to access probably until he attains the age of fifty-five, of some $158,000 or slightly more. He has a small block of land in Queensland worth very little. 20 He and his wife have presently a mortgage of $167,000, most of this having been incurred after the death of the deceased. $100,000 was used buying shares which he has been trading. That venture has been unsuccessful, in part through his purchase of shares in HIH and GIO. 21 It is necessary to look at the contributions that have been made by the deceased during her lifetime for her son. I 1984 she gave him $10,000 to enable him to carry out some work in his kitchen. 22 The matter which has been most important in this case is of course the relationship between the plaintiff and the deceased. The law has been dealt with in a number of cases, recently in the matter of Day v Perpetual Trustee Co, 17 May 2001. It summarised the history of the case law and concluded by referring to some observations made by his Honour Mr Justice Young in Walker v Walker, 17 May 1996. Those comments in that judgment appear at pages 15 to 26 and, as is said in the judgment, Mr Justice Young spoke of the difficulties in determining causation in relation to a separation between parents and child and what investigation of the facts needs to be done in order to form a view about whether the community would expect that a testator ought to have made provision for the child. 23 It is also I think apposite to refer to what was said by Justice Holland in Kleinig v Neal (1981) 2 NSWLR 532 at 540 where he said: "If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so much friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the Court to consider whether it has been performed. The Court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the Court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim." 24 In this case it is the expectations of the type of person that the child marries are in question. Quite clearly the deceased father thought his son could have married better and such thoughts seem to have carried through and led to the deceased also taking a profound dislike to her son's wife. Effectively the deceased put the plaintiff to a choice which any wise parent should not have forced on the child. To force a child to leave his spouse and stepson in order to come back and look after his mother is something which a parent should not do. The parent should have recognised the responsibilities which the son had to his wife and stepson. 25 The case was put the conduct of the plaintiff was unacceptable and it was put on the basis that there was no attempt at reconciliation by the plaintiff. There are a number of things to be observed about this. First, the terms of the ultimatum put to the plaintiff. For several years thereafter the evidence is that the plaintiff continued to try to make contact and all those contacts were rejected. In 1991 the only response was from a solicitor. There was no personal response which might have led to some indication of some softening on the deceased's part. 26 There were a number of occasions on which the deceased has hung up on the plaintiff's wife. 27 There is one other circumstance also which has to be taken into account and that is that the plaintiff himself is suffering from depression. He in fact spoke of driving past his mother's house but was unable to go inside. That probably is understandable particularly in terms of his illness. However there is one thing and I will come back to this later that has to be taken into account when one comes to deciding whether there has been sufficient provision and that is the fact that there was no contact from 1985 until 1987 apart from the attempts. In my view I do not think that there was any conduct disentitling by the plaintiff who was rejected by his mother. 28 It is necessary to look at the situations of others who have a claim on the bounty of the deceased. In this case there are three, the first of whom is Robert Mack who is a nephew. It is apparent from his affidavit that after the break came between the deceased and her son, he has taken the role of something very like a son to the deceased. For instance he has helped her and has made fortnightly visits to the deceased's home. This went on for many years and he played a large part in arranging hospitalisation, visiting her in hospital and generally attending to things like mowing the lawns and gardening. The relationship developed and in fact the deceased was quite supportive to Robert when he himself was having difficulties with his marriage. The situation is that he lives in his home which by an arrangement made with his mother he will acquire on his mother's death. He has already bought out his sister's interest and accordingly he will expect to receive the property from his mother. 29 He took voluntary redundancy from his job and now has a superannuation of $85,000 and about $30,000 in a credit union. He is currently employed as a quality co-ordinator and earns about $30,000 from that employment. He has two children who are aged approximately twenty to twenty-three years of age. 30 The next person to consider is Wendy Mack. She is a niece of the deceased. Her contact with the deceased appears to be outings that she had with her mother. Apparently her mother continued reasonable contact on a weekly basis. She also has from time to time driven the deceased out and also has from time to time helped the deceased when she was ill, visiting her during the night and helping her to be taken to hospital. She is not in a secure financial position. She lives in rented accommodation. She earns $600 per week gross and is a single parent with a child. She has weekly expenses which substantially consume her income. She has a 1993 car and some furniture and appliances and that is all. Indeed her lot is not good and she has difficulties. 31 The other niece is Jennifer Zandia. She had perhaps less contact than the others with the deceased but her family did become closer to the deceased particularly after the deceased's husband died. She is unemployed, having had a stroke in 1999. She is married. Her husband is a customs officer who has an income of about $41,828 per year. They have a house worth $350,000 and a loan of about $26,000 plus Jennifer also has personal loans of $26,700. They manage and are in somewhat better financial position than Wendy Mack. 32 It is necessary to see whether or not the plaintiff has been left without adequate and proper provision for his maintenance, education and advancement in life. The only provision which he receives under the will is the sum of $10,000. In submissions made to the Court the plaintiff suggests that a legacy of $200,000 to $220,000 should be left to him. That seems to be predicated upon a need to clear the debt which he has over his home and also provide for some contingencies in life. 33 In one sense that places the duty to provide for her son on too high a level. There are numerous cases in this Court where the provision to be made, for example for a widow allows for contingencies as well as other provisions but that is not the usual provision made for a son. It is not the case that a child should expect a parent to leave him a debt free home. Sometimes provision to help discharge a mortgage is expected which would enable a son or daughter to own their own home. 34 The mortgage that the plaintiff has is just under $170,000. He does have a share portfolio and that is currently valued at about $70,000. Unfortunately for the plaintiff, and I am sure none of his choosing, that has lost value. He seems to be approaching a more difficult time in his life but he seems to be able to cope with his depression. After this case is over some of the problems in his upbringing and background will, hopefully, disappear. He is faced with a difficult situation in relation to his employment. If he does lose that he will obtain some funds but he then needs to continue to receive an income and to try and obtain other employment. It seems to me that the plaintiff has had a very specialised work history and that there might be real problems for him obtaining a job in the future. The income from the share portfolio of $70,000 would hardly be sufficient and even if he is made redundant and receives $90,000, he would still have a mortgage of some $80,000. He has the responsibility of a wife who can no longer work and a stepson who has been part of his life for fifteen years. He has to provide for them. 35 I have earlier referred to the fact that the conduct of the plaintiff does not disentitle him to benefit. Effectively it was the deceased's decision and although that has had an impact on the plaintiff, one has to have regard to the totality of the relationship between the plaintiff and the deceased in forming a view about what is adequate provision. Clearly the unfortunate thing for the plaintiff is that over a period of some fourteen years there was no real relationship between himself and the deceased and that has to be taken into account and would discount any amount that would be provided to the plaintiff in the absence of that relationship. 36 One also has to take into account that others have fulfilled the role of family in the deceased's life and that role has to be recognised, as the deceased wanted it recognised. Even if there were some increase in a fairly substantial way to the plaintiff's legacy, there would still be sufficient in the estate to provide for the other beneficiaries. 37 Having regard to all these factors, in my view the legacy left to the plaintiff is clearly insufficient. In my view an appropriate provision for the plaintiff would have been a legacy of $100,000. Accordingly, I vary the provision in the will of the deceased and I increase the legacy in favour of the plaintiff from $10,000 to $100,000. The plaintiff's costs are to be paid on a party/party basis and the defendants' costs on an indemnity basis out of the estate. 38 So far as interest is concerned I order that interest under the Wills Probate and Administration Act will run on the legacy from 10 July. ********* Last Modified: 06/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.