New South Wales Supreme Court CITATION : Alley & Robertson v Public Trustee [2001] NSWSC 124 FILE NUMBER(S) : SC 2005/00; 3248/00 HEARING DATE(S) : 6-8 December 2000 JUDGMENT DATE : 8 March 2001 Heather Jean Alley, Barbara Edith Watson, Neil James Robertson (Plaintiffs, 2005/00) PARTIES : Joan Phyllis Robertson (Plaintiff, 3248/00) Public Trustee (Defendant) JUDGMENT OF : Master McLaughlin M. Willmott (Plaintiffs, 2005/00) COUNSEL : M. Painter (Plaintiff, 3248/00) J.R. Wilson (Defendant) Eric Butler Solicitors (Plaintiffs, 2005/00) SOLICITORS : Wood Roberts Solicitors (Plaintiff, 3248/00) P J Whitehead (Defendant) CATCHWORDS : Family Provision - Small estate - Deceased, a widower, left entirety of estate to one child - Claims by three other adult children - Financial and material circumstances of each Plaintiff - Competing claim of beneficiary LEGISLATION CITED : Family Provision Act 1982 DECISION : See paragraph 66 to 69 1 MASTER: These are two sets of proceedings under the Family Provision Act 1982. 2 By summons 2005 of 2000 filed on 6 April 2000 the Plaintiffs, Heather Jean Alley, Barbara Edith Watson and Neil James Robertson, claim an order for provision for their maintenance, education and advancement in life out of the estate and/or the notional estate of their late father, Reginald Byron Robertson (to whom I shall refer as "the Deceased"). 3 By summons 3248 of 2000 filed on 18 July 2000 the Plaintiff Joan Phyllis Robertson claims an order for provision for her maintenance, education and advancement in life out of the estate and/or the notional estate of her late father, the Deceased. 4 At the commencement of the hearing I made in each proceedings by consent an order that the two sets of proceedings be heard together and that the evidence in the one, so far as is relevant, be treated as evidence in the other. 5 At the commencement of the hearing Barbara Edith Watson abandoned her claim. Accordingly, the hearing proceeded upon the claim of the remaining Plaintiffs (to whom I shall refer as Heather, Neil and Joan). 6 The Deceased died on 4 July 1999, aged 87. He left a will dated 26 March 1982, probate whereof was on 25 August 1999 granted to the Public Trustee, the executor named in such will (who is the Defendant to each of the present proceedings). 7 The Deceased, who was widower at the time of his death, was survived by five of his six children, being Heather Jean (Mrs Alley), Barbara Edith (Mrs Watson), Neil James, Joan Phyllis and Ian William. 8 By his will the Deceased, in the events which have happened, gave the entirety of his estate to his son Ian absolutely. 9 The Deceased left an estate which, for probate purposes, was valued at $191,687. At the date of the hearing the distributable estate, before any provision be made for costs, was in an amount of $195,000. 10 The significant assets in the estate were the residence of the Deceased at 18 McIsaac Street, Tighes Hill (a suburb of Newcastle), and moneys in accounts with the Colonial State Bank and the Newcastle Permanent Building Society, totalling $114,830. The present value of the house property is $85,000. 11 Each of the Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings. It will also be appreciated that the beneficiary, Ian, as a child of the Deceased, is also an eligible person in relation to the Deceased. There are no other eligible persons apart from the five surviving children of the Deceased. 12 Estimates of costs, in accordance with the prescribed practice, have been placed before the Court. It is estimated that the costs of the Plaintiffs in proceedings 2005 of 2000 will total $25,000; that the costs of the Plaintiff in proceedings 3248 of 2000 will total $20,000; and that the costs of the Defendant will total $20,000. Irrespective of the outcome of any of the claims of the Plaintiffs, the Defendant will be entitled to his costs out of the estate. Accordingly, the amount available for distribution will be no more than $175,000. In the event that one or more of the Plaintiffs be successful, that amount will be further reduced, possibly to as little as $130,000. 13 In approaching the claims of the Plaintiffs which are before the Court, it is appropriate that I should set forth, at least in summary, the financial and material circumstances of those Plaintiffs and of the beneficiary. 14 Heather was born on 17 November 1950 and is presently fifty years of age. 15 Heather lived at home with her family until she was aged sixteen. At that time she had left school and was in employment. Heather married her present husband, Colin Alley, in June 1969. It would appear that the Deceased did not approve of that match. He did not attend the wedding and expressed the view that Heather was too young to get married, she being eighteen at the time. 16 From 1974 until 1996 Heather and her husband were actively involved in the Salvation Army, being stationed in Sydney, Newcastle, Northern New South Wales and Northern Queensland. Although a degree of coolness between Heather and her father appears to have continued, she maintained contact with her parents both by telephone and (especially during the period of five years whilst she and her husband were residing in Newcastle) by visiting them. On almost all those occasions, the contact was initiated by Heather. 17 In 1996 Heather and he husband resigned from the Salvation Army, and they commenced an electrical business. 18 In their first full year of conducting that business, Heather's net income was $13,000 and that of her husband was a little under $28,800. Their joint assets consist of two motor vehicles, an amount of almost $10,000 held in a credit union account, and personal effects. They have trade debts of $15,000, and owe an amount of $8,000 on one of the motor vehicles. They live in rented accommodation at Banora Point (on the North Coast of New South Wales), for which they pay almost $11,000 a year in rent. They estimate their total outgoings at $35,700. 19 Barbara was born on 12 September 1944, and is presently fifty-six years of age. As I have already recorded, at the commencement of the hearing she abandoned her claim. Accordingly it is unnecessary for me to set forth details of the financial and material circumstances of Barbara and of her husband. 20 Neil was born on 6 April 1955, and is presently forty-five years of age. 21 He left school in 1970 at the age of fifteen, to commence employment as a telegram boy at the Newcastle Post Office. Neil left home at the age of seventeen in 1972. Thereafter he maintained regular contact with his parents. He married in 1978, and the Deceased attending that wedding. 22 The relationship between Neil and his father deteriorated in the 1980's, on account of the situation concerning another son of the Deceased, Reg, who died in June 1991. Apparently it was Neil who precipitated an investigation by the Protective Commissioner into the affairs of Reg, which had up to then been under the control of the Deceased. 23 However, after the death of Reg, Neil initiated a reconciliation with his father, and from mid-1991 until the death of the Deceased Neil had a good relationship with him. 24 Neil is still employed by Australia Post as a postal services officer. He receives a net salary of $824 a fortnight. His assets (apart from the residence to which I will shortly refer) consist of a motor vehicle ($12,000), superannuation entitlement ($140,000), small amounts in a bank account ($300) and shareholding ($800), together with personal property and effects ($3,000). 25 Neil and his wife divorced in 1 February 2000. As part of the divorce arrangements Neil has transferred the matrimonial home to his former wife, who will be responsible for the mortgage thereon. He will also pay her $80,000 from his superannuation entitlement when that interest vests. That entitlement is presently an amount of $220,000, and in consequence, Neil will ultimately be entitled to about $140,000. 26 In July 2000 Neil purchased a residence at 13 Holt Street, Mayfield (a suburb of Newcastle) for $88,000. That purchase was funded by a housing loan of $83,000 from the ANZ Bank, and the surrender of two endowment policies totalling $13,700. In addition, Neil has borrowed from Citibank amounts of $1,450 and $1,200, to meet his legal fees for the present proceedings. At the present time he owes to Citibank and to AGC amounts totalling about $6,000. 27 Neil's daughter Rebecca, who is presently seventeen years of age, resides with and is supported by her father. Rebecca, who is in Year 11 at school, receives Austudy in an amount of $224 a month, from which she pays towards the household expenses $40 a month. In addition, Neil pays child support of $150 a month for another child of his marriage, presently aged fourteen. That child support will increase to $300 a month when Rebecca attains the age of eighteen. 28 Joan was born on 13 January 1953, and is presently forty-eight years of age. 29 Joan left school when she was aged fifteen. I would here interpolate that the evidence appears to disclose that each of the Plaintiffs was required by the Deceased to leave school at the age of fifteen, and to commence to earn a living. 30 Joan continued to reside at home with her parents until about 1974 when she was aged about twenty-one. Joan and Neil, who moved out of the family home at the same time, set up residence together in a flat at New Lambton (a suburb of Newcastle). Joan remained with Neil in that flat until she married her husband, Leslie Attwater on 25 June 1977. Both her parents attended that wedding. Of her marriage to Mr Attwater Joan had four children. 31 Joan and Leslie separated in June 1985, and were divorced in about September 1988. 32 Joan met her present partner, Paul James, in about 1987. He is the father of her three youngest children. Although Joan and Paul became engaged in about 1988, they have not yet married, and have no current plans as to when they will be married. Joan and Paul do not live together, although they see each other every day. Joan's youngest child was born in 1994. Joan and six of her seven children reside in a house property owned by Paul at Mayfield East (a suburb of Newcastle), for which she pays to him rent of $200 a week. Her eldest child has moved out of home and is no longer financially dependent upon her. 33 According to Joan her relationship with her father was a close and loving one. 34 Joan's income consists of a sole parent pension of $360 a fortnight, together with family tax benefit, large family supplement and rent assistance, totalling $459 a fortnight. Thus, in totality, she receives $819 a fortnight. Joan has not received any maintenance payments from her former husband. However, Joan has recently instituted proceedings for maintenance against her former husband. It would appear that those proceedings have been settled on the basis that Leslie will pay to her maintenance of $39 a week for the children. However, to the date of the hearing, she had not yet received any such payments. When she commences receiving those maintenance payments from her former husband, Joan estimates that her income on a fortnightly basis will total between $907 and $912. 35 Paul retired from employment in about November 1999. Since then he has paid between $10 and $15 a fortnight by way of maintenance for the three of Joan's children of whom he is the father. 36 In addition, Paul contributes to expenses of Joan's household. He purchases some food and groceries as needed, he pays for some clothing for the children, he pays for most of the entertainment for the children, he buys take-away food, he pays all council rates and water rates on Joan's residence. 37 Paul is presently aged about forty-four. Joan in her affidavit states that he is not sure whether he will work again, although she does not explain why he might not be able to continue in employment. 38 Joan states that she lives from week to week, and that the entirety of her income is expended on supporting her children and herself. 39 It will be appreciated that the applications by the Plaintiffs must be approached in the light of the competing claim of the Defendant. Further, that the Defendant is the chosen object of the testamentary beneficence of the Deceased. The Defendant does not have to justify his entitlement to the estate of the Deceased. It is for the applicants to satisfy the Court that it is appropriate that the testamentary provisions of the Deceased set forth in his will should be altered to the extent necessary to make provision for one or more of the Plaintiffs. Nevertheless, the financial and material circumstances of the Defendant may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which one or more of the Plaintiffs might otherwise have established. 40 Ian, the Defendant, is the youngest child of the Deceased. He was born on 26 November 1958 and is presently forty-two years of age. 41 Ian remained living at home with his parents until he married in 1984. He then purchased a house located only about 300 - 400 metres from the residence of his parents. According to Ian the reason for purchasing a house in such proximity to the residence of his parents was so that he could continue to assist them. After his marriage Ian visited his parents twice a week, giving them assistance around the house. As the health of his parents declined, Ian did their shopping, banking, paid their bills, took them to doctors and to hospitals. He always visited them on Christmas Day, Mother's Day and other special occasions. He usually visited on a Friday after work. Ian organised meals-on-wheels to minister to his parents in their declining years. 42 I gather, although the evidence was not precise in this regard, that Ian is no longer married. It would appear that he has children (although, once again, the evidence was not precise in this regard), in respect of whom he pays child maintenance of $320 a week. 43 Ian was until recently employed in a temporary capacity as an infrastructure worker with State Rail, receiving a salary of $28,000 a year. His only other income is dividends upon shares and interest upon money in a bank account, that income totalling about $4,000 gross a year. In his oral evidence he was very confident of obtaining employment. 44 Ian's assets are a house at Tighes Hill (worth about $125,000); a trail-bike, a station wagon and a 1970 Volkswagon sedan motor car (having a total value of about $7,500); shares (worth about $15,000); funds in a bank account totalling about $100,000 (being the proceeds of a redundancy package); furniture, tools and personal effects (to which a value of $5,000 is ascribed); and a superannuation entitlement presently worth about $85,000. 45 During the course of his cross-examination it emerged that Ian after the death of the Deceased had discovered a quantity of money in old bank notes which were located in envelopes in the garage of his father's residence. According to Ian that money, which he said totalled between $4,500 and $5,000, was placed by him in a safe deposit box which Ian maintained. Ian asserted that part of that money belonged to him and part to the Deceased. He said that the bulk of that money remained in his safe deposit box. Information concerning this additional asset held by Ian was not disclosed by him in his affidavit evidence, and emerged only under cross-examination. 46 Apart from the responsibility for child maintenance to which I have already referred, Ian's only other liability is a loan from AGC, in an amount of about $2,500. 47 Much of the evidence of the Plaintiffs in support of their respective claims and of the Defendant in resisting those claims was of an anecdotal nature, a substantial part of it dealing with incidents during the childhood of each of the children of the Deceased. That evidence was, as I understand it, directed to establishing the relationship between the Deceased and each of his children. 48 It should be emphasised that an order for provision is not made as a reward for good conduct; neither is it withheld as a punishment for some perceived misconduct on the part of an applicant. 49 It must also be appreciated that an order for provision under the Family Provision Act constitutes a qualification upon the freedom of testamentary disposition, which is a right of every citizen of this State. 50 Very little of the anecdotal material filed on behalf of each Plaintiff is of significance in the present proceedings. It emerged from that evidence, however, and there appeared to be little dispute, that the relationship between each of the Plaintiffs and the Deceased was not a particularly close or harmonious one, whilst the relationship between the Defendant and the Deceased appears to have been a close and affectionate one. It is quite apparent that the Defendant did a great deal in a physical and practical sense to assist both his parents during their later years and during their periods of declining health. 51 Although the claims of all the Plaintiffs were heard together, each claim must however be decided upon its own merits. 52 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those written submissions will be retained in the Court file. CLAIM OF HEATHER JEAN ALLEY 53 Heather and her husband have a combined income which can only be described as modest. They live in rented accommodation at Banora Point, and have little in the way of assets. 54 Although the relationship between Heather and the Deceased was probably not as close as Heather would have the Court believe (especially in the latter years of the Deceased's lifetime), nevertheless I consider that Heather has established an entitlement to a modest legacy which would have the effect of enhancing her somewhat frugal lifestyle. I propose, therefore, that she should receive a legacy in the sum of $40,000, which will enable her to provide a deposit on a residence, and to go some way towards discharging her present debts and financial liabilities. CLAIM OF BARBARA EDITH WATSON 55 As has already been recorded, this Plaintiff abandoned her claim at the commencement of the hearing. CLAIM OF NEIL JAMES ROBERTSON 56 As a result of his marriage break-up Neil will be left, effectively, only a contingent asset, being that part of his superannuation entitlement remaining after the transfer of part of that entitlement to his former wife. His present liabilities total $103,600. 57 Again, as in the case of Heather, I am satisfied that the relationship between Neil and his father was far from close. Although Neil is in secure employment, his income is not great. On account of his responsibilities for maintenance of his two children, and the recent acquisition by him of a residence with a substantial mortgage, his financial position can be regarded as (in the words of his Counsel) "very tight". Accordingly, I consider that Neil has established an entitlement to a modest legacy, which will enable him to reduce his mortgage and pay his immediate debts. I propose, therefore, that he should receive a legacy in the sum of $20,000. CLAIM OF JOAN PHYLLIS ROBERTSON 58 Joan's financial and material circumstances are far more satisfactory than those of Heather or Neil. Joan is in receipt of two parcels of Government assistance, as well as a rental allowance. She receives maintenance from both her former husband and her present fiancé. It would appear that the sole purpose for the arrangement whereby she lives in a house owned by her fiancé for which she pays $200 a week is so that she is enabled to receive rental assistance from the Government. Her fiancé provides additional financial assistance for the clothing, food and welfare of the three of Joan's children of whom he is the father. Joan's daughter Jo-anne Leigh is in receipt of Government assistance, but makes no contribution towards the support of her mother. 59 Although Joan's fiancé, Paul James, was retired from work on the ground of ill health in November 1999, Joan professed to be unaware of his financial position. She said in explanation that she was not his wife. Although she has three young children from her relationship with Mr James, she appears content to rely on Social Security to support those children, disregarding any obligation upon Mr James to maintain them. 60 I an in agreement with the submission made by Counsel for the Defendant that Joan's attitude towards her own welfare and that of her children is puzzling. Whilst she holds herself out as being engaged to Mr James, she said in evidence she would not marry him until her youngest child had left home, in about twenty year's time. She has recently obtained a maintenance order against her former husband, but has not received any payments from him, despite the fact that the maintenance provided by Mr James is extremely modest. The reason why Mr James does not pay adequate maintenance for his children was not disclosed, and Joan appeared to have little interest in pursuing this matter. It is difficult to resist the conclusion that Joan is satisfied with her present circumstances. She is secure in her accommodation. She has a substantial income from public sources. 61 I am not satisfied that Joan has established relevant need. I propose therefore to dismiss her claim. 62 It follows from my foregoing conclusions that legacies totalling $60,000 will be payable out of the estate of the Deceased. That means that there will remain for the benefit of Ian an amount of no less than $90,000 (possibly somewhat more, depending upon the costs payable by and recoverable by the estate). That amount, when taken with Ian's other assets, is such that his competing claim upon the testamentary bounty of the Deceased will not have the effect of reducing, or even extinguishing, the foregoing orders for provision which I propose to make. 63 I have not heard any submissions concerning costs. My tentative views, however, are that, since Heather and Neil have each been successful in their respective claims, each of those Plaintiffs is entitled to an order for costs out of the estate of the Deceased. No explanation was offered for the abandonment by Barbara of her claim. She, therefore, must pay the costs of the Defendant in respect to her claim. Joan having been unsuccessful in her claim, must also pay the costs of the Defendant in defending that claim. 64 The Defendant is, of course, entitled to an order for costs out of the estate, irrespective of the outcome of the proceedings. I would propose, therefore, that his costs of the proceedings, to the extent to which they may not be recovered from either or both of Barbara and Joan, should be paid out of the estate of the Deceased. 65 However, if any party wishes to make submissions as to costs different from the tentative views which I have just expressed, an opportunity will be given to that party to do so. 66 Accordingly, unless within seven days of the date hereof any party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 67 2005 of 2000 (1). I order that the Plaintiff Heather Jean Alley receive out of the estate of the late Reginald Byron Robertson ("the Deceased") a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 22 March 2001, and if not so paid to bear interest at Supreme Court Rates. (2). I order that the claim of the Plaintiff Barbara Edith Watson be dismissed. (3). I order that the Plaintiff Neil James Robertson receive out of the estate of the Deceased a legacy in the sum of $20,000, such legacy not to bear interest if paid on or before 22 March 2001, and if not so paid to bear interest at Supreme Court rates. (4). I order that the Plaintiff Barbara Edith Watson pay the costs of the Defendant of and incidental to her claim. (5). I order that the costs of the Plaintiffs Heather Jean Alley and Neil James Robertson, such costs to be on the party and party basis, and the costs of the Defendant of and incidental to the claims of Heather Jean Alley and of Neil James Robertson, such costs to be on the indemnity basis, be paid out of the estate of the Deceased. (6). I order that the difference between the costs of the Defendant of and incidental to the claim of Barbara Edith Watson on the indemnity basis and the foregoing costs which the Defendant may recover from that Plaintiff on the party and party basis be paid out of the estate of the Deceased. 68 3248 of 2000 (1). I order that the summons be dismissed. (2). I order that the Plaintiff pay the costs of the Defendant. (3). I order that the difference between the costs of the Defendant on the indemnity basis and the foregoing costs on the party and party basis which the Defendant may recover from the Plaintiff be paid out of the estate of the Deceased. 69 In each proceedings the exhibits may be returned. ********** Last Modified: 05/25/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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