New South Wales Supreme Court CITATION : BYRNE-JONES v MARSHALL [2001] NSWSC 292 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 4056/99 HEARING DATE(S) : 11/04/2001 JUDGMENT DATE : 11 April 2001 PARTIES : JANICE MARGARET BYRNE-JONES v MARGARET SUSAN MARSHALL (ESTATE OF MARGARET ISABEL MONTGOMERY) JUDGMENT OF : Master Macready at 1 COUNSEL : J.R. Wilson for plaintiff L.J. Ellison for defendant SOLICITORS : Gordon A. Salier for plaintiff McClellands for defendant CATCHWORDS : Family Provision. Claim by only adult child of deceased. Order for legacy. No matter of principle. CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Kleinig v Nejal (1981) 2 NSWLR 532 DECISION : Paragraph 39 - 1 - 1 MASTER: This is an application under the Family Provision Act in respect of the late Margaret Isobel Montgomery who died on 24 October 1998, aged eighty-eight years. She was survived by her only child, the plaintiff. 2 Under a will which was made on 2 July 1996, the deceased appointed the defendant executrix and trustee and made a bequest of $10,000 to the Fred Hollows Foundation. Thereafter, the balance of her estate was to be divided equally among seven named persons. One of those pre-deceased the deceased and, accordingly, the estate passed between the remaining six of the named persons. All these people are relatives of the deceased's late husband and they live in England. There was an earlier will, the date of which is not clear, but it was prior to the will in respect of which probate was granted. Very little remains of the earlier will, but under that will it was clear the plaintiff had some benefit. 3 The estate had a value of some $234,503. From that has to be deducted the defendant's costs of $15,500, tax of about $1500, and if the plaintiff is successful, her costs of $17,889; this totals $34,889. In effect, we are concerned here with an estate worth about $200,000. 4 I will now deal with some of the history of the matter and also, in the course of this, talk about the relationship between the plaintiff and the deceased. The plaintiff was born on 12 January 1941. Her future husband, Paul, had been born on 16 September 1937. The plaintiff's father died at El Alamein on 1 November 1942. At that stage the plaintiff was twenty months old. The plaintiff and the deceased lived with the deceased's mother at Cronulla at this time, and continued to live there. 5 The plaintiff left school aged 16 in 1957. She then became a student nurse at Prince Alfred Hospital. In 1960 she met Paul Byrne-Jones, her future husband, but this, for some reason which is totally unexplained in the evidence, led to an extraordinary reaction on the part of the deceased. It ultimately led the deceased, when the plaintiff made known the fact that she was going to marry Paul, chasing her out of the house with a carving knife, leaving her with such epithets as the deceased hoped all her children would become mongols. 6 There were also some other surprising things that were done by the deceased at this time. Firstly, she expressed extreme disappointment in the plaintiff going into the nursing profession and seemed to think that it would bring down the family status. She also attempted to buy off Paul by offering him £500, or dollars, not to marry her daughter. Perhaps the mother's comment that the daughter should stay at home and look after her and her grandmother is some indication of what the real reasons of the deceased were at this time. She also tried to harm Paul's prospects, as it were, by complaining to his employer; fortunately that was rejected by the employer. 7 The plaintiff sensibly decided to put this behind her and she married Paul Byrne-Jones in April 1962. An invitation was sent to the deceased to come to the wedding, but nothing transpired; she did not arrive. 8 The first child of the plaintiff was born on 1 April 1963. When ringing her mother to tell her, her mother, the deceased, simply hung up on her. The second child was born on 25 June 1964 and once again the plaintiff wrote to her mother, but there was no response. She and her husband had moved to Melbourne by this stage; Paul originally came from Melbourne where they thought there was a better opportunity to obtain a house. 9 Their third child was born on 22 March 1967; she died ten days later. The plaintiff rang her mother and her mother's only comment was "You deserve it". The fourth child was born in 1968. A further child was adopted by the plaintiff in 1970 and in that year she called in to see her mother in Sydney with her children. Her mother apparently showed no interest in the children. 10 In the 1970s, after the deceased apparently moved from Hurstville to Cammeray in 1973, there was correspondence between the deceased and the plaintiff. There was some recognition of birthdays by the deceased. However, towards the end of the 1970s this temporary respite in the relationship ended. The deceased demanded back from the plaintiff her husband's war medals which she had earlier given to the plaintiff to pass on to her children. She came to Melbourne in 1978 for the express purpose of taking them back and stayed at a hotel in Melbourne. She would not come and see the plaintiff and the plaintiff gave back the medals. 11 In 1988 the deceased moved from Cammeray into the Camden Retirement Village. In 1991 it was the plaintiff's fiftieth birthday party and as a result an invitation was sent by one of the children to attend the party, but the deceased apparently did not even respond to that. There were further phone calls in the 1990s when the plaintiff tried to tell her mother about the birth of grandchildren, but this produced some similar responses. 12 In 1997 the plaintiff retired from nursing. I have mentioned the deceased died on 24 October 1998 and the death certificate indicates that there was dementia existing for some years before that time. The grant of probate was obtained and the summons was filed in time. In November 2000 the plaintiff's husband retired from full time work. 13 In applications under the Family Provision Act the High Court has recently, in Singer v. Berghouse (1994) 181 CLR 201 at 209 set out the approach the court must take: "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 interrelationship 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." 14 I turn to consider the plaintiff's situation. The plaintiff is sixty years of age. She has a life expectancy of 24.25 years. She is married to her husband who is aged sixty-three and who had a life expectancy of 17.82 years. They have four adult children who are not dependent on them and a number of grandchildren. Both of them have retired from full time work. The plaintiff worked as a nursing sister until retiring in 1997. She was a director of nursing of a small organisation and she says she has been trying to obtain some work since then but has not been able to obtain that casual work. 15 Her husband, as I have said, retired in November 2000 and he continues to do some casual contracting work. It is not a great amount. They do have a number of assets. Firstly they have their house at 4 Beilby Street, Bayswater in Victoria. The value of this home was estimated at $110,000 but it is insured for far more than that, something in the area of $193,100. The contents are insured for $61,350. It is a home in which they have lived, apparently, for some time. 16 They also have four units in Queensland; three of them are investment units that were purchased in Cairns. 8/431 Severin Street, Cairns was purchased for $61,000 and is now estimated at $48,000. 3/319 Severin Street, Cairns was purchased for $83,950 and is now valued at $75,000. 9/178 Martin Street, Cairns was purchased for $60,000 and is now valued at $40,000. 17 All these units are let and have been successfully let for some time. Clearly the market for this type of unit has fallen, no doubt due to over supply and decline in tourist income in the area. 18 They also own a unit eighteen miles north of Cairns at Clifton Beach, which is used as a holiday home by the plaintiff, her husband and their family. It was purchased for $55,000 and is now worth $89,000. She has not used it for at least eighteen months and it seems to have been used once or twice by her children in that time. She meets all the rates and taxes. 19 The plaintiff and her husband owe their son, Gary, some $21,000 and this arises because the purchase of the units in Cairns was, in part, funded by him and, in part, funded by loans from their banks. They have worked and paid off the loans to the bank and they have partly paid off the loan to Gary. $21,000 is still left by way of capital to repay. 20 They have in the past, as demonstrated by their repayment of that loan, received reasonable remuneration in their employment. Their situation has changed quite substantially now because of their reduced employment. The plaintiff's taxable income for the year ended 30 June 2000 was $14,594 and her husband's was $18,235. That includes their income from the rental properties. It also includes income from two other investments which they have. These are 600 Telstra shares worth $3900 and 2368 Westpac shares worth $30,784. Their bank account is apparently a sum of some $3000. 21 So far as their income is concerned they do have living expenses, leaving aside the Queensland units, of about $20,800 per annum. Accordingly they are not in a particularly good situation, and this is indicated by the fact that they have not paid off the debt to their son Gary since early this year. This has been because they cannot afford to do so. 22 The plaintiff's husband has superannuation benefits of some $41,600 which he will receive in several years time when he reaches age sixty-five. He has some personal life policies having a surrender value now of some $16,000, which is only slightly less than the death benefit, and these are sums which, one would think, would probably, in due course, become available to the plaintiff once her husband had died. 23 The two of them have some cars which are getting quite old. There is a Ford Falcon which is worth $4500, an LTD which is worth about $6500 and a 1988 Ford Laser worth $6300. It is worth noting that the plaintiff herself has not in any way contributed to the build up of the estate of the deceased. I will come later again to the relationship between the deceased and the plaintiff. 24 It is necessary, of course, to have regard to the situation of others who have a claim on the bounty of the deceased. In the present case the only ones are the beneficiaries in England. Of those, only one of them has spoken of knowing and corresponding with the deceased. That was Dorothy Cole who said that she had talked to and corresponded with her aunt all her life and held an affection for her. She is in a situation where she and her husband receive a pension of some £40 a week. They live in a small bungalow which they own in Harlepool in the United Kingdom. She is sixty-four years of age. They have £300 in building society accounts, credit card liabilities of £110 and a loan of some £1600. Her husband apparently suffers from back problems and arthritis and they need a new car with controls which have to be modified so they can get about. The cost of that type of car would be in the order of £15,000 to £18,000, and that is what she would like to use the funds that come from the estate for such a purchase. 25 Rita Edwards is an aged pensioner; she is seventy-three years of age and is divorced; the deceased was her aunt. She lives in two-bedroom terrace at Harlepool, which is subject to a mortgage of £3000. The house apparently being in need of repairs she would like to spend £3000 or £4000 on repairs and set aside money for her funeral. 26 Jeanette Hilier lives with her husband in a three-bedroom house which they own. Her husband has six months work a year. She does some part-time work at the local comprehensive school. She has problems with arthritis and they have no savings. They are trying to replace their home with one that does not require stairs. Apparently homes would cost in the order of £70,000. 27 Harold Roy Montgomery is fifty-four years old. He is a sales manager with a company in the United Kingdom in West Yorkshire. He is married with two dependent sons. One of them is at university and the other is a motor technician. They own their residence at Weatherby and have a mortgage on that home. They would like to make some repairs costing between £5000 and £10,000. He has a problem with a tumour in his hand which might lead to the amputation of his hand. They have savings of some £6000 and shares worth £7000 and an old car. He thinks, because of the sale of his present company, that he may be out of work shortly. 28 Henry Montgomery is sixty-six years of age. He retired when he was sixty due to ill-health and suffers from arthritis and blood pressure. He depends upon Social Security and lives in his house which he owns. There is a mortgage on it of £5000. He is waiting for some treatments for work to his knees and cannot have surgery because of that because he cannot afford to pay for it. 29 William Walker is fifty-eight years of age; he owns a small terrace in which he lives. He has had heart problems and he has a small pension from the Water Authority, together with a small Government pension. He wishes to move from his terrace into a bungalow and would like to spend money on that if money becomes available to him. 30 As I have mentioned, only one of these beneficiaries mentions the fact that they had contact with the deceased, and apparently they are related through the marriage of the deceased to her husband. There is no other evidence of any contact between them. 31 When one looks at the plaintiff's claim, one of the important matters that comes from the evidence is the relationship between the plaintiff and the deceased. The mother's actions at the time the daughter decided to get married and leave home are very hard to explain except in terms of the deceased's own self interest. Commonly parents may feel disappointed with the marriages of their children but this is all part of life. The matter was put fairly clearly by his Honour Holland J in Kleinig v. Neal (1981) 2 NSWLR 532 at 540: "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 are not exceptional, it is the general rule, so some 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 of 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." 32 There was some rapprochement and in the 1970s there was some communication however, one thing that does stand out about the evidence is that the plaintiff herself was always the one who was trying to make contact and keep contact. She wanted a mother and wanted a mother's help. It was her mother's choice to, from time to time, not make that available. 33 In my view there was nothing in the conduct of the plaintiff that would lead me to reduce the claim which she has on the estate of the testatrix's bounty. She moved to Victoria, but that happens within many families and is not a matter which adds to the problem for her. It is necessary to look and see how the plaintiff might have been left without adequate and proper provision for her maintenance, education and advancement in life. There are a number of things which are put forward on the part of the plaintiff in this regard. 34 The first one is that they wish to repay the debt of $21,000 to their son. He is obviously not calling for it, but it is an obligation that they have felt obliged to meet and for many years they have reduced the principal by quite substantial amounts. I think their desire to repay their son is a proper one. At their stage in life to have to owe your children money is not something which is necessarily appropriate. 35 So far as the vehicles are concerned it is suggested that there should be a purchase of another Ford Falcon for $40,000 and another Ford Laser for $25,000. There is criticism made in cross-examination concerning this, it being suggested that the cars were expensive and that there would be plenty of good second hand cars. One of the things to bear in mind about this type of claim is the life expectancy of the plaintiff and her husband. They have a substantial life expectancy and to deny them the opportunity of some reasonable transport now while they are still active, would be extremely parsimonious. There is another perhaps twenty years where they will be using cars and this only allows for one. I am aware that the plaintiff's husband will be receiving his superannuation in about two or three years time and that sum will also help towards replacement of cars. 36 The other thing where the plaintiff says she is left without proper provision concerns their income. They are in a situation where they have tried to provide themselves for their own retirement. This is extremely commendable, and as I pointed out in argument is somewhat rare to see. They do not receive the pension and are not dependent upon the State. Accordingly, because they have assets which provide them with some rental income, one has to see this in the context that they are not dependent on the State for their income. 37 Two of the rental units have been recently been put up for auction; they were both passed in without a single bid. The third rental unit has been put in the hands of agents for sale and not one offer has been received on it. Clearly they are not able to be sold and accordingly, for some time, one would think that the plaintiff and her husband will just simply have to make do with the income which is received from those units. The gross income is only $11,600 per annum. 38 The other assets that they have are, of course, the investment shares which are also there to provide them income and give them some balance in their portfolio. They have the holiday unit; that is one which has increased in value and no doubt could be sold. It does not seem to be a unit which is used very often. However, when one takes all these matters into account, and particularly takes into account that the future is one that has to be provided for a period, for the plaintiff herself, of something in the order of twenty-five years, one sees that there will have been some appropriate provision made. One has to balance these with the claims of the persons in England whom the testatrix has chosen. They, however, are not blood relatives of the deceased and, prima facie, the daughter's claim should come well before their claim. 39 In the circumstances I think a legacy in favour of the plaintiff in the sum of $85,000 is appropriate. I so order. Interest is to run if the legacy is not paid within a month of today's date. I order the plaintiff's costs on a party and party basis and the defendant's on an indemnity basis to be paid out of the estate of the deceased. Exhibits may be returned. oOo Last Modified: 05/03/2001 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.