Adams v Adams [2001] NSWSC 456

New South Wales Supreme Court

CITATION : Adams v Adams [2001] NSWSC 456 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4468/99 HEARING DATE(S) : 30/05/01, 31/05/01, 01/06/01 JUDGMENT DATE : 1 June 2001

PARTIES : Peter John Adams and ors v Jennifer Anne Adams - Estate of Meryl Audrey Adams JUDGMENT OF : Master Macready at 1

COUNSEL : Mr J.D. Shaw for plaintiff Mr S. Stewart for defendant SOLICITORS : H.M. Symonds & Britten for plaintiff Webb Thom & Associates for defendant CATCHWORDS : Family Provision. Application by three children. Conduct disentitling in respect of one child. Discussion of principles. Orders made in favour of two children. DECISION : Paragraph 72

2 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Meryl Audrey Adams who died on 16 April 1999. 3 Her husband predeceased her and she was survived by her six children. In this judgment I will refer to the children by their christian names as they have been referred to in that way in the course of the evidence. Two of them, William and Suzanne, have been notified of the proceedings and make no claim. They in fact have given evidence in the proceedings. 4 Three of them, Peter, Victoria and Debbie are the plaintiffs in the action. The remaining child Jennifer is the defendant. Jennifer was appointed the executrix of the deceased's last will made on 13 September 1991 and she receives the whole of the estate. 5 There was a declaration made by the deceased, which is exhibit 1 in the proceedings, to which I will refer later, in which she gave the reasons for excluding four of her children from the will. The estate is a simple one consisting of the property at 15 Patricia Street, Rydalmere which has a value of $310,000. Jennifer has paid all the administration expenses and legal costs involved in administering the estate. 6 In this matter there are costs that have been incurred on both sides. The defendant's costs are in the order of some $19,000 and the plaintiffs' a little over $25,000. This will mean that either the house will have to be sold to meet the expenses, even those of the defendant, or alternatively, some finance obtained. 7 It is useful to deal with some of the history of the family. The oldest child, Suzanne, was born on 7 March 1947. Peter was born on 10 July 1948. At that stage Shirley Andrews came and lived with the deceased and her husband for some 12 months. She had contact with the family and gave evidence in these proceedings. The daughter, Vicki, was born on 31 January 1962 and Jennifer was born on 13 February 1957. Debbie was born on 4 January 1960. 8 The evidence includes statements by the plaintiffs relating to assaults by the deceased on them. There has been a substantial debate on the evidence before me about these assaults. It is difficult to resolve them all but in part it seems to me that there have been some assaults, but I will come to the details in due course. 9 Vicki suggests in 1971 when she was nine years old her mother grabbed her by the hair, dragged her into the bathroom and held her head and face under a shower. 10 The deceased and her husband, William Adams, moved into 15 Patricia Street, Rydalmere in 1964. In about 1965 - and at that stage Peter was 17 - he left home for a while but following entreaties by the deceased he returned. The youngest son, William, was born in 1966. 11 At about this stage one has allegations by Vicki of her being beaten by her mother, she apparently used her husband's belt to do so. Also at this time it is apparent that Vicki was placed in a psychiatric unit on a few occasions by the deceased. 12 The evidence, of course, is very minimal in respect of matters like this. I do not have the benefit of any papers from the institutions or doctors' reports to find out the truth of the reason why she was so placed. I can only conclude, in the absence of any evidence, it was probably appropriate and Vicki needed some treatment. 13 In the late 1960s Peter and his father constructed a double garage at the property at Rydalmere. This involved the pouring of a concrete slab, erection of a large garage and it seems to have been done with Peter doing a lot of the labour he being supervised by his father. He said he contributed to some of the costs. Part of that structure ultimately became Peter's bedroom to allow his sisters to share the dwelling house. 14 In the late 1960s Peter had a difficulty with the deceased. He had a Studibaker which was apparently his pride and joy. The evidence suggests that his mother, in Peter's absence in Queensland - told a finance company that he had gone to Brisbane and would not be back. According to Peter, the finance payments were up-to-date. However, apparently the vehicle was re-possessed and sold, much to his disappointment. 15 The difficulties with Peter continued in the 1970s. He married his wife Judy and they had a son, Shane. During the course of some surgery that Judy was undergoing, complaints were made by the deceased to the Department of Community Services about the care of Shane by Peter and Judy. That ultimately led to litigation over a year and for that year Shane was looked after by the deceased. That litigation was resolved when Peter and his wife obtained custody from the deceased. According to Peter, it led to a break down of his relationship with his wife and subsequent divorce. 16 That, however, did not ultimately destroy the relationship between Peter and the deceased. The deceased's husband, William John Adams, died on 25 January 1971. Shortly thereafter Vicki left home for a couple of years. In 1973 Suzanne left to marry. She in fact married and moved away to a place near Griffith and slowly started to drift apart from the deceased. 17 In 1974 Vicki returned back to Rydalmere with a caravan, which she placed on the block, and at her mother's suggestion purchased a large cover which covered the caravan and provided some sheltered walkway into the house. Also in that year Debbie left school so that she could get some work and also help look after the children, William and Shane, who are the children of Peter. 18 Vicki moved away in the late 1970s and then came back again with her future husband. In 1978, a week after her 18th birthday, Debbie decamped from the home. She left at night and departed secretly with her boyfriend, who she subsequently married and to whom she is still married. Thereafter her horse riding equipment was disposed of and various statements made by the deceased about Debbie. 19 There was some dispute about whether the deceased had made allegations that Debbie was on drugs to some of her neighbours. It seems to me from the evidence given of an occasion which occurred on Anzac Day that it is fairly clear that she must have done so. Debbie denies ever having been on drugs or such matters. 20 In 1985 Vicki commenced living with Mr Knapp, who she subsequently married, and she had two children by him. In 1991 she also moved to Queensland. She was having difficulty handling favouritism by the deceased of one of her children over the other. She found out, once she moved, that a complaint had been made to the Department of Community Services by the deceased. That had not led to anything but it certainly affected Vicki. 21 The will was made in 1991 and the letter to which I referred was in October 1995. The deceased died on 16 April 1999. Jennifer did not tell her brothers and sisters of the death and they found out afterwards. This apparently was as a result of the deceased's wishes. It is unfortunate as it no doubt intensified what is clearly a very strong feeling of animosity between the various groups of the children. 22 Probate was granted and the proceedings were commenced within time. 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, 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.