Pavey v Statham and anor [2001] NSWSC 365

New South Wales Supreme Court

CITATION : Pavey v Statham and anor [2001] NSWSC 365 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2170/2000 HEARING DATE(S) : 30/04/01, 01/05/01, 02/05/01 JUDGMENT DATE : 2 May 2001

PARTIES : ROBERT EDWARD PAVEY v VALDA JEAN STATHAM AND ANOR - ESTATE OF EDWARD ALFRED PAVEY JUDGMENT OF : Master Macready at 1

COUNSEL : R.H. Taperell for plaintiff M.K. Meek for defendants SOLICITORS : Baker Love for plaintiff Cantle Carmichael Lawyers for defendants CATCHWORDS : Family Provision. Application for adult son suffering from schizophrenia. Conflicts with testator when plaintiff's illness not diagnosed. Small estate. - Order for legacy. Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Kleinig v Neal (1981) 2 NSWLR 532 AT 540 said: Court of Appeal Goloski v Goloski (unreported 5 October 1993) DECISION : Paragraph 39

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Edward Alfred Pavey who died on 20 December 1998 aged 69 years. The deceased was survived by his son and 3 daughters and the first defendant with whom he was living in a de facto relationship at the time of his death. His son is the plaintiff. 2 His will of 9 February 1998 appointed the first defendant and his daughter, Cheryle Annette Pavey as executrix. After a bequest of furniture, the precise destination of which is not clear, the main provisions of the will were as follows: "I give devise and bequeath my real estate known as 2A President Wilson Walk, in the said State unto my trustees to be held upon the following trusts: (a) To permit my companion, Valda Jean Statham to reside in my said real estate known as 2A President Wilson Walk in the said State until her death or until she expresses the wish in writing to my trustees that she no longer wishes to reside therein and during her occupancy of the said real estate my said companion is to pay all rates and insurances and other outgoings including repairs and other maintenance costs in relation to my said real estate. (b) After the death of my said companion, Valda Jean Statham, I direct that my said real estate known as 2A President Wilson Walk, Tanilba Bay be sold and converted into money at such time and in such manner as my trustees in their absolute discretion shall think fit regardless of the nature of such estate without being responsible for any loss and to hold the proceeds of such sale upon trust to my three daughters, Suzanne Louise Reid, Cheryle Annette Pavey and Michelle Gaye Painter. (c) If my companion, Valda Jean Statham, expresses the wish in writing that she no longer wishes to reside therein I direct that my said real estate known as 2A President Wilson Walk, Tanilba Bay be sold and converted into money at such time and in such manner as my trustees think fit with power nevertheless to postpone such sale and conversion for such period as my trustees in their absolute discretion shall think fit regardless of the nature of such estate without being responsible for any loss and to hold the proceeds of sale upon trust as follows: (i) One half share of the proceeds of sale to Valda Jean Statham. (ii) The remaining one half share of the proceeds of sale to be divided equally between my daughters Suzanne Louise Reid, Cheryle Annette Pavey and Michelle Gaye Painter as tenants in common." 3 As is apparent, the plaintiff has been left out of the will. 4 The estate has a value of $312,035.85, which comprises the deceased's home at 2A President Wilson Walk, Tanilba Bay valued at $280,000. There are cash assets of $32,035.85. The costs incurred to date are the plaintiff's costs $32,056.03; first defendant, $38,207.62; estate costs, $33,085.90, a total of $103,350.55. 5 It is abundantly plain that the house in which the first defendant is still living will have to be sold. After allowing expenses of sale there will be left about $200,000 in the estate, assuming that the plaintiff is successful in his application. Even if he is not, the house will still have to be sold to meet the defendants' costs. 6 In these circumstances, it is necessary to have a view as to the entitlement to the estate of the first defendant and the 3 daughters. Fortunately that has been made clear as the first defendant has given written notice she no longer wishes to reside in the matrimonial home. Thus after payment of the costs, the first defendant as the will presently stands will receive over $100,000, and the 3 daughters, will share the remaining $100,000. 7 I will deal with first some matters of general chronology. The deceased was born on 6 February 1929 and the first defendant was born on 14 September 1931. She is now thus 69 years of age. Suzanne Reid, one of the daughters was born on 21 December 1950; Cheryle Annette Pavey, another daughter on 25 September 1952; the plaintiff was born on 7 October 1954 and the third daughter, Michelle Gaye Painter was born on 16 January 1965. 8 In 1980 there was an early will of the deceased in which the deceased left his assets to his wife with provision for a small amount to be provided for the plaintiff. The deceased's wife died on 19 May 1983. The first defendant and the deceased had known each other before the death of his wife but did not have any relationship until about 1987. Their relationship was such that they would spend time at each others homes but ultimately in 1991 the first defendant moved into the property at Tanilba Bay and commenced living with the deceased. That purchase had been made in 1989. 9 Ultimately the deceased's will was made, as I have said, in February 1998 and he died on 20 December 1998. Probate was granted in due course and the application made within time. 10 It is also useful to recount a little of the history of the plaintiff himself in order to get a feeling for his life and what has happened to him. He obtained the Higher School Certificate in 1972 and then started working as a spare part foreman for BHP. He came back to schooling after that to try and improve his results. He did not complete the year. 11 In 1975 he worked as a storeman for Great Northern Motors for 10 months. By 1976 he was playing music and working in music shops. Music interests him and is a major part of his life. In 1979 he worked as a fettler with the Department of Railways and in 1981 transferred to Parkes with that department. He moved to Fingal Head in 1981 and married. He worked in a resort doing cooking and gardening and worked at the Tarong power station. He and his wife bought some land at Glenn Innes and he worked in real estate for a short period before moving back to Newcastle where he worked as a builder's labourer. 12 His son, Michael Pavey, was born. He and his wife separated in 1983 and he continued with his employment as a builder's labourer and musician. He at one stage in 1986, after returning to Newcastle, formed a band which played for some 18 months. In 1987 he moved to Adelaide and worked as a car salesman and musician. 13 He married again in 1990 but unfortunately his wife in 1991 attempted suicide as a result of which she had irreversible brain damage. It was apparent that she needed substantial care and ultimately the plaintiff and his wife separated. 14 This had an adverse effect on the plaintiff and ultimately in 1993 he moved to Melbourne to be with his sister, Michelle. He was unemployed and ultimately fell out with his sister. He then moved to Byron Bay and worked on a nut farm for some 6 months. 15 In 1994 he went to Western Australia and worked as a driver and cook on various tours. In 1994 he came back to Newcastle for a short period and then back to Byron Bay and then ultimately Melbourne. By 1994 he was back in Newcastle and by 1997 he was diagnosed as suffering paranoid schizophrenia, something which became evident in a marked way at that stage when some friends suggested he obtain proper help. The type of matters that he talks about that started to affect him in his early teens would seem to indicate that schizophrenia had probably existed for most of his life. Certainly it would explain the relationship that existed between him and the deceased and also explain the difficulties that occurred with his father. 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 that a court must take. At page 209 it said the following: "The first question is, what 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.