New South Wales Supreme Court CITATION : David George BOOTH v John Robert BOOTH; Estate of the late George Aubrey Hugh BOOTH [2002] NSWSC 836 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4177/01 HEARING DATE(S) : 22/08/2002 JUDGMENT DATE : 22 August 2002 PARTIES : David George BOOTH v John Robert BOOTH; Estate of the late George Aubrey Hugh BOOTH JUDGMENT OF : Acting Master Berecry at 1 COUNSEL : Mr R. Cameron (Plaintiff) Mr B. Skinner (Defendant) SOLICITORS : Thomas & Bisley (Plaintiff) Kearns & Garside (Defendant) CATCHWORDS : Family Provision Act - son - large Estate - estrangement - no evidence of need - conduct. LEGISLATION CITED : Family Provision Act 1982 Stuart v McDougall (unreported, NSWSC 19 November 1987) CASES CITED : Eggler v Mitchelmore (unreported, NSWCA 11 November 1992) Singer v Berghouse (NSWCA, 23 July 1992) Pickett v Jackson (unreported, 15 March 1998) DECISION : Summons dismissed; Plaintiff to pay the defendant's costs. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING MASTER BERECRY THURSDAY, 22 AUGUST 2002 4177/01 - DAVID GEORGE BOOTH v JOHN ROBERT BOOTH - ESTATE OF GEORGE AUBREY HUGH BOOTH & ORS JUDGMENT 1 MASTER: These proceedings were commenced on 24 August 2001. The plaintiff, a son of the deceased, seeks an order pursuant to s 7 of the Family Provision Act 1982. 2 By amended summons on 28 May 2002, prayer 1 in the summons was amended by including relief in respect of the notional estate. 3 The deceased died on 28 September 2000. The application, therefore, is brought in time. The estate, for purposes of probate, had a value of approximately $1,150,000. Under the terms of the deceased's will he provided legacies for his grandchildren, some friends and the plaintiff. The plaintiff received a legacy in the sum of $25,000. The grandchildren and friends received legacies in the sum of $1,000. One beneficiary received a legacy of $2,000. 4 The balance of his estate was left to the first defendant in these proceedings, John Robert Booth, who was the other son of the deceased. Provision is also made for the daughter of the deceased. She received a legacy, together with provision in respect of certain other interests that he held. 5 The plaintiff was born on 22 January 1949. According to the evidence, the history of the family was unremarkable. There were three children and the mother and father throughout the time that the plaintiff lived at home. They resided in the Wollongong area on a dairy farm. The plaintiff attended the local school and completed his education in 1965, when he left school during fifth year. 6 Subsequently, he obtained employment with BHP and trained as a metallurgist. His employment continued with BHP. However, it was broken by an illness for a number of years during the 1970s. By 1981 the plaintiff had completed the TAFE course and was no doubt looking forward to a career with BHP. Unfortunately, in 1982, there appears to have been a downsizing in the steelworks and the plaintiff was made redundant. At this time the plaintiff was married and had two young children. 7 Shortly after he was made redundant by BHP he acquired a cleaning business. The evidence is that, over the eleven years that he ran this business, it was one that rarely produced a profit. He has given reasons for why the business did not succeed. In essence, there appears to have been a lack of capital in the business to enable it to acquire replacement equipment, and to repair equipment when it needed repairing. 8 1982 appears to have been a bad year for the plaintiff. Not only was he made redundant by BHP, but, by Christmas that year, his marriage had broken down. He and his wife subsequently separated, she moved to the Central Coast. Both had access to the children. The property settlement was effected in 1989. However, between 1982 and 1989 the plaintiff resided in the matrimonial home, they having purchased that during the course of the marriage. 9 The evidence was that the plaintiff used his portion of the proceeds of sale of the matrimonial home to purchase another house. He obtained a loan from Westpac to complete the purchase, and also obtained loans from Westpac in relation to the business. By 1993 things had become fairly tight for the plaintiff. The result was that he sold the house, discharged the mortgage, paid out the debts to Westpac. That left him with an amount of $20,000. 10 Prior to the business being sold, there was also another traumatic year in the plaintiff's life in the mid-eighties. An allegation was made by his daughter that the deceased had sexually assaulted her. This had unfortunate ramifications on the family. As a result of those allegations, a complaint was made against the deceased and committal proceedings were instituted at the Local Court in Nowra. 11 The plaintiff was cross-examined fairly extensively and robustly this morning in relation to matters surrounding the bringing of the charges of sexual assault against the deceased. The deceased was not committed for trial. 12 The plaintiff has still not accepted the decision of the Court. One can perhaps understand that, and one can understand the emotional turmoil that the plaintiff would have gone through in those years. To have a daughter make an allegation against a grandfather, your father, puts you in an invidious position. It is quite natural your first response is to protect the daughter, and no doubt that is what the plaintiff did. His intentions, no doubt, were good. 13 It was submitted today that much of the evidence he has given is contradictory of what happened in the mid-eighties and, therefore, much of his evidence today should be disregarded or given very little weight. But it seems to me that he was caught in a human tragedy and it is something that most people would not want to experience, and no doubt those who have, only them, understand the full traumatic impact of that occurrence. In any event, the relationship between the plaintiff and the deceased was broken. 14 There is some evidence that, in the following years, attempts were made to make contact. The plaintiff, on a few occasions, attempted to make contact with the deceased. Nothing was resolved. The relationship was not resumed. The deceased went to his death not having reconciled with the plaintiff. Having said that, it would seem to me on the evidence today, that the chances of reconciliation in any event were probably fairly remote. 15 The plaintiff, since selling the cleaning business, has, by and large, been unemployed. He worked for a short time assisting a milk vendor, and he worked for some months as a door to door salesman for Electrolux. However, for the vast majority of the time since approximately 1993/94 he has been unemployed. 16 Since selling the second home he has always lived in rented accommodation. He is currently on a pension and has been the recipient of social security benefit during the time of his unemployment. He was cross-examined on his attempt to seek work. His evidence was that he moved to Forster and then to Ettalong. However, that was the extent of the evidence. It was not revealed whether or not whilst at those places he attempted to find employment. 17 The plaintiff's evidence is that he is currently renting accommodation in the Wollongong area and he shares that accommodation with another person. The rent he pays per fortnight is approximately $195. On a weekly basis, that is approximately $97.50 per week. The benefit he receives from the Social Security is $256.77 a week. 18 The only evidence of expenditure of the plaintiff is his rent of $97.50 per week. That leaves the plaintiff with approximately $160 per week. Obviously there are living expenses which must come out of that $160-odd. There is no evidence, however, of how much he spends by way of living expenses, and how much, if anything, he has left over to spend on entertainment, hobbies, or whether or not there is any money left over to save. In all probability, there is very little money, if any, left over for purposes of savings. 19 The plaintiff has put on no evidence of what his needs are. True it can be said somebody on a pension, who is fifty-three years of age and has not worked for seventeen years, and throughout his working life, notwithstanding his training, and who has had difficulty in finding employment, does not have good prospects. However, nothing has been identified. It has been left to counsel to fill the gaps, and counsel has attempted to do that in the written submissions handed up earlier this morning, and his closing submissions, prior to lunch. 20 The bulk of the estate goes to his brother, the bulk of the estate being two properties in the Wollongong/Kiama area. It is said that because of the size of the estate, some additional provision should be made for the plaintiff. It is true that a large estate may be considered a bit more liberally than a small estate. However, where this has been identified by the Court, the Court has not moved from the position that it is still up to a plaintiff to be able to establish his case. 21 The application does not put an amount that the plaintiff seeks. That is left to counsel and it is said, because of the size of the estate, provision should be made for the plaintiff because it was manifest that the provision that was made for him was inadequate. 22 There are a few matters that need to be considered before a court can vary the terms of a will. In Stuart v McDougall (Unreported, NSWSC 19 November 1987) Young J said: "It is important to state what the Family Provision Act permits a court to do, and what it does not permit a court to do. The Act recognises that Australians have freedom to leave property by their will as they wish, with one exception. The exception is that a person must perform any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus in these cases one does not ask is the will fair, one does not ask why did the testatrix not divide her property equally; one does not ask a judge to say, how would I have made a will had I been the testatrix? What must be asked is whether the testatrix, by her will, failed in her moral duty to those who had a claim on her? Even if a court comes to the view that that question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent that proper and adequate provision is made to the eligible person in respect of whom the testatrix has failed in her moral duty." 23 Subsequently there have been decisions which have made certain comments in relation to the concept of moral duty. In a more recent decision of his Honour in Shearer v Public Trustee and Hawke v Public Trustee, 23 March 1998, his Honour expressed similar views in relation to the power of the Court to alter the terms of the will. T herefore, whilst it may be very inviting to look at the estate and say, it is a large estate and the plaintiff has little in the way of assets, if any, and has received a legacy of $25,000, in the context of the estate it is inadequate, there should be change, the plaintiff must establish that the provision made for him is inadequate and there ought to be some other provision made. 24 There have been a number of cases that have looked at the question of need and when that is established. In these proceedings, as I have already indicated, the plaintiff's evidence was merely a history. He did not go into what his needs are. Counsel's submission is that his needs are manifest, he is on a pension, he does not own property, and he needs something for later in life. What is proposed by counsel is that he be given a fund which can be used as an investment or, as a pool upon which the plaintiff can draw his weekly rent or, to enable him to buy a property, if not now, at the stage of his life when he may need the type of care that is provided by a retirement village or nursing home. 25 To accept that submission would be to fly in the face of the established authorities that is that there is no obligation of a parent to provide accommodation for a child. That has been expressed in a number of cases, in Shearer v Public Trustee and Hawke v Public Trustee, supra, once again Young J expressed that view. It seems to me, therefore, that I cannot look at the plaintiff's needs in terms of providing him with either a complete subsidy for rent, or a lump sum which would enable him to purchase accommodation which would be unencumbered. 26 It is clear that the plaintiff is not in as good as a position as the brother. There is no evidence before me, of course, about the brother's income. However, by the very fact that the brother has received the farm, he has realty. To that extent, he is in a better position than the plaintiff. 27 The problem that I have is caused by the comments that the Court has made on at least two occasions. In Eggler v Mitchelmore (Unreported, NSWCA 11 November 1992), Sheller JA said: "Unfortunately, in this application, as in many under the Act, a great deal of evidence has been led about the relationship between the deceased and the appellant, and the devotion and loyalty of the appellant, but very little to demonstrate any particular need of the appellant." 28 Similarly, in Singer v Berghouse (CA, 23 July 1992), Sheller J expressed a similar opinion in that case in which Cripps JA agreed. His Honour said: "I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and 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." 29 In Pickett v Jackson (Unreported, a decision of Needham J, 15 March 1998), his Honour made similar comments: "Another unusual aspect of the case is that, apart from evidence as to her means, the plaintiff gave no evidence of any particular need, nor did she suggest what she would do if a legacy were to be granted to her. It was suggested by her counsel that a sum should be awarded to her sufficient for her to pay a deposit on a home unit in the Eastern Suburbs, but the plaintiff made no suggestion that she wished to buy a home unit, nor, as I have said, did she suggest any short term or long term need." The current proceedings fall very much within those authorities that I have cited. 30 There was also an issue raised by the defendant concerning the conduct of the plaintiff. It was suggested that the plaintiff's conduct is such that it would disentitle him to any further provision from his father's estate. In my view the plaintiff's conduct is not of a nature that this Court, if that were the only matter that was a bar to provision being made, would not make provision for him. In my view, under the circumstances, the plaintiff acted quite naturally and normally. 31 It was always open to both of them to try and repair the damage. As I said earlier on, I think because of the plaintiff's strong belief that the Magistrate's decision was wrong, and the fact he cannot accept that the Court has made a decision which he finds unpalatable, he continued to blame his father and it would seem to me the chance of reconciliation was quite remote. 32 The notes attached to the affidavit of Mr Rose of 1 July 2002 are notes made pursuant to the provisions of s 32 of the Family Provision Act. I do not see anything in that statement in which the father believes that the conduct of the plaintiff was reprehensible. There is nothing in that statement which blames the son for the events of 1985/86. There is nowhere in that document where he excludes the plaintiff because of his conduct. Quite the contrary, it makes provision for him and then sets out reasons why that provision was made. 33 It seems that was a mistaken view. The deceased's view was that he had already made provision for him some years earlier. He did give some weight to the support and assistance given by his other son and daughter. The only matter of criticism of the plaintiff by the deceased is that the plaintiff showed no compassion towards the deceased or his mother during the Court case. That is probably understandable from the deceased, but I think the attitude of the plaintiff at the time was also quite natural and understandable. 34 There are notes attached to the affidavit of Mr Rendall. I think it is important to note that, once again, there does not appear to be a criticism of the son. However, there are notes which do raise the particular incident and that those notes are not directed towards the plaintiff. They are in fact directed towards Kelly, the granddaughter. In those notes there is no mention made at all of the plaintiff. If that were the only matter to weigh against the plaintiff, it would seem to me that there would be no basis for declining to make an order in favour of the plaintiff on the grounds there was some disentitling conduct. 35 It seems to me, were provision to be made for the plaintiff, it would only be for a small amount. It was always open to both parties, some time after 1986, to attempt to reconcile. There was no concerted effort made by either, on the evidence before me, to achieve that. It would seem, therefore, that if the plaintiff were successful, any provision would only be slight. 36 The difficulty that I have is that the authorities indicate that a plaintiff must establish that he has a need. It is not enough merely to say – I am on a pension and I do not own property. There is little evidence about his expenses. There is nothing to indicate that there is a possibility that he may lose his accommodation. There is no evidence that he is currently attempting to find employment. There is no evidence about what he would do with an additional fund, should it be made available to him. 37 He has received $25,000 out of the estate and that, as I understand it, is currently with his solicitor, on account of costs. Some moneys have been spent – a small amount in relation to a debt and another amount in relation to a holiday. There is nothing to indicate what the plaintiff would do if he were to receive an additional provision out of the estate. 38 In my view, the summons should be dismissed, the plaintiff to pay the defendant's costs. ************* Last Modified: 09/12/2002 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. 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