RANDALL & ORS v PUBLIC TRUSTEE [2000] NSWSC 500

New South Wales Supreme Court

CITATION : RANDALL & ORS v PUBLIC TRUSTEE [2000] NSWSC 500 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3207/98 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 May 2000

PARTIES : MICHELLE LEE RANDALL & ORS v PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF ROBERT RANDALL JUDGMENT OF : Master Macready at 1

COUNSEL : Mr. P.M. Skinner for plaintiffs Mr A.L. Hill for defendant SOLICITORS : Peter Murphy & Co. for plaintiffs Mr P.J. Whitehead for defendant CATCHWORDS : Family Provision. Claim by children of the deceased. Orders made. No matter of principle. DECISION : Paragraph 20

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

MASTER MACREADY

Monday 22 May 2000

3207/98 - MICHELLE LEE RANDALL & ORS v PUBLIC TRUSTEE OF NSW - ESTATE OF ROBERT RANDALL

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Robert Randall who died on 16 September 1997. The deceased was survived by his three children, who are the plaintiffs in the action, and also by his wife from whom he separated many years ago in 1976. His wife has been notified of the proceedings and brings no claim. Accordingly her interests can be disregarded. So far as the plaintiff, Michael, is concerned, no evidence has been led on his behalf because he was not available for cross examination and accordingly that means his application will fail. 2 The will of the deceased was made on 23 May 1995 and under that will he appointed the Public Trustee as executor and trustee and gave the whole of his estate to his step brother, John Franklin. A default provision is that if that beneficiary did not survive the estate was to go to Michelle Randall, one of the plaintiffs. Mr Franklin has survived. There was an earlier will on 23 August 1992 in which the deceased left his estate to his three children equally. 3 The estate is a small estate and the amount in the estate, adding in both capital and income in the books of the defendant and also anticipated further income, amounts to $64,021.39. From this is to be paid $3,353.59 for the funeral expenses, outlaid by Christopher Randall, the defendant's costs of $18,000, some further claim of $500. That leaves a balance of $42,167.80. If the plaintiffs are successful, their costs will be paid out of the estate. These are estimated at $12,500. The balance of the estate therefore can be expected to be in the order of $29,667.80. The effect of the costs can be seen from a recounting of the figures. 4 In a small estate such as this it is appropriate that it be settled early in order to avoid the amount of costs. I do not know why this did not happen on this occasion but it is a matter which requires the attention of people, particularly those experienced in the area, such as the defendant, to try to make sure that at a very early stage attempts are made to settle. Be that as it may, the matter has proceeded. 5 I will deal with some of the chronology and history of the matter. Michelle was born on 17 May 1964. Michael, the son who has no evidence before the court, was born on 18 August 1966 and Martin was born on 5 October 1967. The plaintiffs' parents separated in 1976. In 1992 the deceased had a fall in which he fell from a verandah and suffered brain injury. It as thought that he might recover but it turned out that this affected him for the rest of his life. Precisely when in 1992 it is not clear from the evidence. 6 On 28 August 1992 there was the other will in which the deceased left the estate to his three children. By 1994 the deceased was moved into a nursing home at Genista at Burwood. On 20 June his estate was placed under the management of the Protective Commissioner. In late 1994 7 Mr Franklin met the deceased again and asked to assist him with his difficulties for nursing homes. The will in respect of which probate was granted was dated 23 May 1995. As a result of efforts by Mr Franklin the deceased was eventually transferred to another nursing home on the northern beaches, Ocean View, at Mona Vale and that occurred on 3 June 1995. Unfortunately because of his violent behaviour as a result of his injuries, he had to leave. Then in March 1996 he was transferred to Macquarie Hospital in North Ryde. Thereafter he went to Rose Hill Nursing Home and he died in September 1997. Probate was granted in November 1996 and these proceedings were commenced on 17 July 1998, within time. 8 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the approach that the court must take. At 209 the court 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' et cetera 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 et cetera 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." 9 As indicated by the High Court, it is necessary to consider the situation of the plaintiffs. I will firstly deal with the situation of Michelle. She is a single person having two children who are approximately 11 and 9. They are not residing with Michelle, the father of the children now having their care for the time being. She resides in Queensland at Lot 5, Kin Kin-Pormona Road, Kin Kin. She is unemployed and has been for a long time. She left school at the age of 14 and has had no opportunity to learn a trade or have any substantial form of education. She does not own a vehicle, does not own any real property and has negligible savings. She lives in a wooden and tin shed on a five acre property in Queensland and apparently has occupation of it in return for doing clearing work and work on the five acre property growing paw paws and other items. She is in reasonable health and her only income is the amount she receives for social security which is $330 a fortnight. At this stage she has little prospect, with very few savings, of having her children with her and there are probably no doubt problems with accommodation. She had to borrow some $500 from social security to provide for clothes for her daughter when she was living with her. 10 It is necessary of course to have regard to the relationship between the plaintiffs and the deceased. The plaintiff, Michelle, left home when she was 15 years old. She has been back and lived with him once for a week or so, which was really a visit, and she has endeavoured to keep in contact with letters, cards and phone calls. When she heard about his accident she came back to Sydney and stayed for two weeks in order to be near her father when he was in hospital. Since that time she has not been able to come back to Sydney although it is clear from cross examination that she has her father's interests in mind and has endeavoured over the years to keep in contact with him or at least those in the nursing homes who are responsible for his care. She would ring and when she found that he had moved to another nursing home, she would then trace him down, make contact and find out how he was going. Clearly Michelle is in a difficult situation and she probably did not have the funds to be able to travel and probably did as much as she could. 11 The other plaintiff is Martin. Martin is about 33. He is single. He does not have any dependants and he lives in rented accommodation, also in Kin Kin in Queensland. He currently also survives on social security. He receives $370 per fortnight from which he pays out $60 a week in board for his accommodation. He seems from time to time to have worked but his history is one of long periods of unemployment and certainly he does not seem to have any formal qualifications, having left school in year 10. In Queensland at the moment he is doing some work helping a friend on a property doing some mowing and things of that nature. He has a Subaru car which is a 1984 model which cost $1,600 and he has recently received a gift from his mother and also had a repayment of a debt due to him by someone who owed him some money and that is $15,900 on long term deposit. That is the extent of his assets. 12 He has had contact with his father for a while. He lived at Mona Vale and he would keep in touch with his father. He says there were about twenty occasions he saw him and tried to make contact between 1992 and his father's death. There was little he could do other than see him occasionally. He does not however seem to have been taken into the confidence of the beneficiary, Mr Franklin, at least as far as the deceased is concerned. However there certainly were contacts. There was some criticism that he perhaps may have done something else, when his father came home to see him, but I think that is quite inappropriate. Obviously his father had serious problems as a result of his brain injury and required careful treatment in hospital and Martin on those occasions when his father did come home, arranged to have him taken back to those who could care for him. 13 Apart from the two plaintiffs, it is of course necessary to consider the relationship in the circumstances of the other people who have claims on the bounty of the deceased. The only person in this category is Mr Franklin, the beneficiary. As I have mentioned, he is a step brother and got to know the deceased for the first time in the 1960s. His reacquaintance started in 1994 and apparently the deceased asked him to try and find some better nursing accommodation on the northern beaches. This started Mr Franklin on a long train of inquiry and obviously he put in a lot of his personal effort in order to get him some better accommodation. He spent a lot of effort in trying to get him accepted into a Salvation Army Hostel but ultimately that hostel would not take the deceased because of the deceased's medical condition. He then made complaints about that to the Human Rights and Equal Opportunity Commission but achieved no change in the situation. Eventually he got him into a nursing home. That only lasted for a while when the deceased had to be moved because of his violence towards other inmates. 14 Mr Franklin is 50. He is married. His wife does not work and he has two step children. One of them, a girl who is at TAFE, receives Austudy but contributes little to the household. Mr Franklin's financial situation is one which has changed recently. He lives in rented premises and he currently has employment as an administrative assistant with the University of New South Wales and is in employment for 35 hours a week. His income is $628 which is substantially used for his expenses. He has a vehicle which is worth probably something in excess of $7,500 but after allowing for debts he has a little over $8,000 in a cash management account. That is the extent of his assets. 15 The court of course in the present matter can only make an order if a person who qualifies as an eligible beneficiary has been left with inadequate provision for their proper maintenance education and advancement in life. The court has no jurisdiction to make an order which the parties might think fair or just or to make a will 16 It is necessary to demonstrate how the testator has left them with inadequate provision. 17 If I turn to what is said by the plaintiffs about how they have been left with inadequate provision for their maintenance, education and advancement in life. I must say I am reminded by what was said by Sheller JA in the case of Singer v Berghouse on 23 July 1992. There his Honour had the following to say: "I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income or outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in section 9(ii) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant." 18 One turns to the affidavit evidence of the plaintiffs. There is nothing in their affidavits which actually addresses, in direct terms, the way they have been left without adequate provision. Similarly no oral evidence was sought to be led from them in this regard. One does however have the parlous state of their financial affairs. One can glean from the background and the way that the plaintiffs have struggled in life, that it has not been easy for them. They have little qualifications and they have little behind them. Martin of course does have some $15,900. Clearly he makes his way but the difficulties with employment are apparent. He is in a position in his life where he is still single. He has no dependants but he is in his early thirties and some provision now might enable him to further his life or at least have something behind him to relieve the uncertainty. With the difficulties of employment with his history, it seems clear that some small amount might be appropriate to provide a hedge against future unemployment difficulties. 19 So far as Michelle is concerned, her plight is more obvious. Her education is probably less and she does have the responsibilities of children, who admittedly are not with her at the moment, but she is likely to help them in the future. In the circumstances obviously she needs something behind her to improve the situation and allow her hopefully to play a greater role in the children's lives. In the circumstances I think that the mere poverty of the plaintiffs and particularly of Martin in his unsatisfactory work history and the difficulties he has which demonstrate, in the context of this estate or the claims upon it, they have been left with inadequate provision. 20 Accordingly the orders that I make are as follows: (1) I order that there shall be a legacy in favour of the plaintiff, Michelle Lee Randall, in the sum of $15,000;