New South Wales Supreme Court CITATION : Butler v Public Trustee [2001] NSWSC 633 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4835 of 2000 HEARING DATE(S) : 9 July 2001 at Newcastle JUDGMENT DATE : 9 July 2001 PARTIES : Patricia Margaret Butler v Public Trustee - Estate of Francis McMahon Beagan JUDGMENT OF : Master Macready at 1 COUNSEL : Mrs M. Bridger for plaintiff Mr J. Wilson for defendant SOLICITORS : Bilbie Dan for plaintiff P.J. Whitehead for defendant CATCHWORDS : Family Provision. - Application by a child who had no contact with father for many years. - Small estate. - Adjustment to legacies and no order for plaintiff's costs. DECISION : Paragraph 34 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Francis McMahon Beagan who died on 29 September 1999. The deceased was survived by his three children, one of whom is the plaintiff. 2 Under his will, made on 20 May 1998, he left a legacy of $2,000 for the plaintiff, gave a legacy of $3,000 to his daughter Cheryl Dacey, gave a legacy of $10,000 to Alan Lane and left the residue of his estate to his daughter Debbie Beagan. 3 The estate at the date of death consisted of a home at 59 Third Street, Weston, worth in the order of $59,000 at that stage, cash of $860, a 1980 Toyota car worth $3,000, together with an Optus refund due to him of $11. 4 The evidence as to the value of the home indicates that it is probably now worth $49,000. 5 The car in the estate was taken by Cheryl Dacey in lieu of her legacy, presumably by arrangement with the defendant. 6 At the present time there are a number of debts to which the estate is subject. Firstly, the house is clearly going to have to be sold and there will be costs on the sale of the house of some $3,000. There are a number of debts of the deceased and commission due to the Public Trustee in the amount of $3,500, and the residuary beneficiary Debbie has paid the funeral expenses of $3,197 and she will have to be repaid. There is also a liability for a headstone, which apparently the parties are happy for there to be erected on the deceased's grave; it at the moment has no headstone. That headstone will cost $4,500. 7 The total of those amounts is $14,197. 8 The plaintiff's costs in this matter are estimated at $13,000, and the defendant's costs are estimated at $15,000. This is a total of some $28,000. 9 After one takes out the debts and the costs out of effectively the $49,000 left in the estate, one is left with a figure of $6,800. Clearly this is another classic illustration of those cases which say that where there is a small estate it is improper to bring claims and to dissipate the estate in costs. There is no point in doing it if, at the end of the day, there is nothing left. 10 I will deal with just a few details of the family history. The plaintiff was born on 10 February 1952. Her parents did not marry and did not reside together. The plaintiff was brought up by her mother and maternal grandparents, and never knew who the father was and never had contact with him for most of her life. It appears that the mother was not willing to inform her, and ultimately she did make contact through the good services of the Salvation Army. 11 On 18 June 1960 the deceased's daughter Debbie Beagan was born. The plaintiff had children in 1976 and 1978. Debbie Beagan married in 1981; her marriage did not last for very long. She had children, and I will come back to those in due course. 12 According to the plaintiff, it was in 1984 that she learned the identity of her father. Debbie puts that at 1987, but in the scheme of things the difference is not terribly material. 13 The plaintiff had contact with the deceased in 1984. At about this time the deceased's son, Colin, apparently died. In 1985 the plaintiff's marriage had broken down and so she, following discussions with the deceased, moved to Newcastle and she kept up contact with the deceased, being then closer to him. In fact in December 1986 the plaintiff remarried and the deceased gave her away at that wedding. 14 She then moved back to Sydney and for some years the deceased and the person Hazel Lane moved to Boggabri. The evidence before me has not gone into the debate as to whether Hazel Lane was the de facto partner of the deceased or merely a friend. Clearly the deceased lived there for some two years and the plaintiff says she visited the deceased in Boggabri. On 20 May 1998 the deceased made his will, the contents of which I have described. The deceased died in September 1999. 15 During the year 2000 Debbie Beagan received some $20,000 under the Criminal Injuries Compensation Act, which she put towards acquiring a car. 16 In applications under the Family Provision Act the High Court has recently, in Singer v Berghouse (1994) 181 CLR 201, set out the two-stage approach the court must take. At p 209 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 interrelationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Ltd . 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 et cetera 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." 17 The plaintiff is now forty-eight years of age. She is married and she has no dependants. She has minimal assets. Her furniture is worth $5,000 and her 1988 car, which is now unregistered, is worth some $1,500. She has debts of $1,000. 18 Because of difficulties at her workplace, she finds that she can only work a limited number of hours, and seems to average between $280 and $290 per week. Her husband is unemployed and he receives $117 per week. 19 The relationship between the plaintiff and the deceased was one of which there was some criticism in the evidence, but I do not think that is of great moment. Clearly it was a relationship which was only commenced when the plaintiff was thirty-two years old, and it went for some fifteen years. There is no evidence of contributions to the estate by the plaintiff. 20 The plaintiff puts forward a number of ways in which she says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. She points to the difficulties that she has with her car, and also the fact that she has had to give up her medical insurance. She would like to be able to have that insurance. Obviously she has absolutely nothing behind her in terms of funds to fall back on if she has difficulties such as illness. 21 So far as the daughter Cheryl Dacey is concerned, there is no evidence from her at all. Similarly with Alan Lane, there is no evidence from him, and accordingly the court would conclude that they do not want the court to take into account their financial position in considering the present application which is before the court. Alan Lane was the son of Hazel Lane, who I have referred to, and there was evidence from her that in fact when she moved in to live in the house of the deceased in 1988 she sold her house and gave $10,000 for repairs to the deceased's house. 22 There is evidence from a friend of the deceased about a number of conversations which include discussions between the deceased and her about why he had made his will, in that he said he had to leave Alan, Hazel Lane's son, $10,000, "which is $5,000 I loaned Frank and another $5,000 for fencing that Alan gave to Frank. Alan told Frank he did not want any money for it because it had been given to him." 23 However, according to the deceased he saw it somewhat differently. He thought he had repaid his debt to Hazel and the family, he had given her a rent-free home for seven years and looked after her when she was ill; but in any event he made the will as he did make it. There is also evidence that Alan Lane, immediately after the death of the deceased, came to his home and took a heavy duty trolley and a large toolbox full of tools. There seems to have been some cleaning out of the deceased's house. 24 The residuary beneficiary, Debbie Beagan, is forty years of age. She is single and she has three children. Two of them shortly will not be dependent upon her, but she does have a one year old child who is dependent upon her. She lives in a Housing Commission flat and has income which consists of a pension of $662 per fortnight, out of which her rent for the Housing Commission flat is paid. She has a car worth $25,000, and furniture it seems of the value of $50,000. There is little cash, $4,000 owing, and bank credit card and other credit card debts. 25 In Day and McLennan v Public Trustee, a decision of mine in April of this year, I have set out at length a review of the authorities which deal with the question of a child who has had no contact with a parent for a substantial part of the child's life. I will not repeat that discussion of the cases, but what it does illustrate is that in most cases one has to have full regard to the whole of the facts and circumstances that led to the lack of contact, in order to try and come to a view to see whether the community would expect that a person in the position of the testator ought to have made a particular provision for the child in question. 26 It is clear that the plaintiff did have contact with the deceased and it was important to her. She obviously had been trying to find her father, and she did. Having made that contact she kept it up, notwithstanding her separation from the deceased by distance at various times. 27 However, the sad fact of the matter is that it was only contact during the last fifteen years or so of the deceased's life. It was not the fault of the plaintiff that this occurred. Probably, if anyone, it was the fault of the mother, who may have had good reason to decide not to put the plaintiff in touch with her father. 28 Similarly, there is nothing in the evidence before me which would suggest that it was the testator's fault that he did not have contact with his daughter. 29 The fact of the matter is, however, that the deceased did have contact with his daughter Debbie for the whole of her life. He was the one who was involved in bringing her up; he had no doubt the difficulties and the ups and downs of raising children, no different to anyone else, and accordingly there was a substantially greater amount of contact between the deceased and his daughter Debbie. 30 That is one element that has to be taken into account in the equation. Other elements which have to be taken into account of course are the financial circumstances. In respect of both the plaintiff and also the residuary beneficiary, Debbie, they are both in marginal circumstances, which is very unfortunate and probably no doubt not of their making. The only difference in assets would appear to be that Debbie has, as a result of her Criminal Injuries Compensation Act claim, a good car, whereas the plaintiff has been reduced to not being able to afford to use a car. 31 The real problem about this matter that if costs come out of the estate it will mean that the residuary beneficiary will receive nothing from the estate. This is not the correct result, because in my view, although the plaintiff has what might be called a good claim by a daughter, it is not superior to that of the residuary beneficiary, because of the different period that they were together. They are both in difficult financial circumstances, and a little for each of them would help. 32 Accordingly, in the ordinary case where the estate is small, it would be appropriate, and this is a case where it would be appropriate, to dismiss the plaintiff's claim. However, there is, out of what limited amount there is left in the estate, an ability to make some adjustments to legacies, bearing in mind where the burden of those legacies should fall if the plaintiff is not allowed costs out of the estate. 33 As I say, I indicate that I think the ordinary course would lead to a dismissal of the plaintiff's claim, with different cost consequences. 34 What I propose to do is this: (1) I order that the plaintiff's legacy be increased to $5,000; (2) I order that the burden of the plaintiff's legacy be borne by the legacy of Alan Lane, such that his legacy will be reduced to $5,000; (3) To further adjust the burden of the legacies I order that in lieu of the pecuniary legacy of $3,000 to Cheryl Dacey, that she receives a bequest of the deceased's motor car; (4) I make no order as to the plaintiff's costs; and (5) I order the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. Last Modified: 07/26/2001 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.