New South Wales Supreme Court CITATION : MILLER v MILLER [2002] NSWSC 250 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2410 /2001 HEARING DATE(S) : 20/03/2002 JUDGMENT DATE : 22 March 2002 PARTIES : CLARICE MARCIA MILLER v DENIS JAMES MILLER & GREGORY NEVILLE MILLER JUDGMENT OF : Master Macready at 1 COUNSEL : Mr J.K. Chippendall for plaintiff Mr M. Willmott for defendant SOLICITORS : Peter M. Wayne & Associates for plaintiff Thurlow Fisher for defendant CATCHWORDS : Family Provision. Application. Application under Family Provision Act by a daughter in respect of a modest estate. Plaintiff received sufficient benefits under will of the deceased. Summons dismissed. DECISION : Paragraphs 56-58 - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY FRIDAY 22 MARCH 2002 2410/01 - CLARICE MARCIA MILLER v DENIS JAMES MILLER - ESTATE OF ETHEL MAY MILLER & ANOR JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of Ethel May Miller who died on 8 November 1999 aged eighty-six years. The deceased was survived by her three children who are the parties in these proceedings. 2 The deceased made her last will on 20 November 1996. Under that will she appointed her son, Denis Miller, as executor and in clause 3 made a direction that her daughter, the plaintiff, would be entitled to reside in her property at 76 Gueudecourt Avenue, Earlwood, rent-free for a period of three years after her death. At the expiration of three years, there was a direction to sell the property and give fifty per cent of the proceeds to her daughter and twenty-five per cent to her son Denis and twenty-five per cent to her son Gregory. She gave the residue of her estate, particularly including cash, to her daughter Clarice, the plaintiff. 3 The estate consisted of the deceased's house at 76 Gueudecourt Avenue, Earlwood and cash amounting to $55,114. The plaintiff has lived in the deceased's house for all of her life and still resides there. 4 There is a dispute as to the present value of the estate property. The plaintiff's valuer, Mr Wills, valued it as at 9 April 2001 at $530,000 using comparable sales. When he was called as a witness, he said that having had the benefit of the defendant's later valuation and without referring to any more recent comparables, he thought it was valued at $550,000 at the date of the hearing. 5 The defendant's valuer, Mr Orphanou, valued the property as at 10 November 2001, using recent comparables, at $630,000. In the witness box at the hearing, he thought the value at the date of the hearing was of the order of $640,000 to $650,000. 6 The defendant's valuer was one who had many years' experience in the area and whose experience suggested that over the last two years there had been a minimum increase in residential values at the rate of half a per cent per month. Mr Wills had not analysed such increases and could not accept this proposition. 7 There was cross-examination on comparables and the following important points emerged: (1) Mr Wills' best comparable for his April 2001 valuation was 34 Kitchener Avenue, Earlwood which sold in March 2000 for $552,000. He could not explain satisfactorily why that did not suggest a higher value, particularly if there had been a six per cent per annum general increase in the area. (2) Mr Orphanou referred to two comparables in the same street: number 69 which sold for $604,000 on 10 March 2001 and number 71 which sold for $630,000 on 3 November 2001. They were both three bedroom, in contrast to the subject property which was two bedroom. However, each had some deficiencies which the subject property did not have. They seem to me to be quite supportive of Mr Orphanou's valuation. 8 Having regard to the comparables and Mr Orphanou's experience of general increases in the area, I prefer his valuation of $640,000. 9 The property will have to be sold and the expenses will reduce the proceeds to somewhere in the area of $620,000. 10 The cash, after the expenses of probate, amounted to $52,954 and this sum was distributed to the plaintiff. She paid from her own resources the funeral expenses which were in the order of $5,000. 11 Costs have been incurred in this matter by the parties. The plaintiff's are estimated at $17,000 and the defendant's at $24,000, a total of $41,000. 12 I turn to deal with a little of the history of the matter. The deceased was born on 15 May 1913. Her daughter Clarice, the plaintiff, was born on 19 July 1937. Denis was born on 22 February 1939 and Gregory on 19 March 1949. 13 The home of the deceased was purchased in 1959. The purchase price was 3000 pounds. The house had been occupied by the deceased and her husband, he being a wharf labourer, and they rented it for some years. The landlord proposed to sell it and unless they could purchase it they would probably have to leave. He offered the place to the deceased and her husband and as a result of Denis making available his savings of 250 pounds, they were able to purchase it. This sum was the deposit that was required. Over the years thereafter the sum was actually paid back by Denis' parents because they did not charge him board for an appropriate period. 14 Denis grew up and married and left home in 1967. His father died in 1970. Gregory himself was then living at home. He was aged eleven and he eventually left home in 1980. 15 The plaintiff in 1984 purchased a home unit at 8/123 Cambridge Street, Penshurst. The purchase price was $48,000. Her mother gave her $12,000 towards the purchase. The property is now worth some $175,000 and, accordingly, there was a substantial benefit provided by the deceased to the plaintiff in this respect. 16 Gregory married in 1987. His older brother Denis retired in 1994. A will was made in 1996, as I have mentioned, and the deceased died on 8 November 1999. There was a grant of probate and the proceedings were commenced within time. 17 In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At 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. 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." 18 I turn to the plaintiff's situation. She is sixty-four years of age, single with no dependants and in good health. She works as a computer operator at a job she has held for many years. Her taxable income for the year ended 30 June 2001 was $46,153 which included her wages, interest and rental income. There is no evidence of her outgoings. Her present asset position, which includes the money she has so far received from the estate, but which does not include the amount of $18,000 she has recently paid to her solicitor for the cost of these proceedings is as follows: Interest in the estate property $310,000, Moneys in accounts and on deposit $120,000, The unit at Cambridge Street, Penshurst $175,000, 1998 BMW car $34,000, Superannuation (old) $7,909, Current statutory superannuation $10,000, Total $656,909. She has no liabilities. 19 The plaintiff had a good relationship with her mother and had always lived at home with her. Her father died after Denis had left home but when Gregory was aged eleven. She, obviously, helped with his upbringing. 20 The deceased was eighty-six when she died and by that time was frail but living at home. The plaintiff cared for her. There is evidence from neighbours which demonstrates that the deceased appreciated the help she received from the plaintiff. Apart from cooking and home duties, the plaintiff took her mother to some doctor's appointments. The defendants also assisted in this process, particularly while the plaintiff was working. There is no suggestion that the plaintiff had to alter her lifestyle or working arrangements as a result of the care she extended to her mother. 21 I need to consider the benefits the plaintiff has received from her mother. In 1984 she purchased her home unit for $48,000 and, as I indicated, her mother gave her $12,000 towards the purchase. Curiously, this fact was not disclosed in the plaintiff's affidavit in support of her application. 22 I am satisfied that the plaintiff paid for the BMW which she acquired in 1998 new and that she received no benefit from her mother in this regard. 23 There have been contributions to the estate property by the plaintiff from time to time. In 1980 she ceased paying board and took over payment instead of the outgoings for the property. This allowed the deceased's pension to be banked and accumulated. The plaintiff says that since 1990 she spent funds on various improvements to the house. There was some debate on the evidence about some of these items. 24 The evidence, in my view, establishes that the plaintiff paid for the following: The garage door, $1,200, Bathroom, $8,500, Hot water, $1,500, Stove, $998, Lino in the kitchen, $600, Total, $12,798. 25 Generally the plaintiff's evidence was imprecise and often not based on any documentary evidence. In respect of the remaining items in paragraph 23 of her affidavit, I am not satisfied that she paid for these amounts. 26 It is necessary to have regard to the situation of others having a claim on the bounty of the deceased. The first of these is Denis Miller, the deceased's son. He is the oldest child aged sixty-three and married with no dependent children. He retired from his position as a bank manager in 1994. 27 He and his wife own their house at Caringbah, which is unencumbered, and worth $850,000. He has various pensions and investments resulting from his payout on retirement. Their present details are not available but they were then in the vicinity of $410,000. His income from these and his pension is about $62,000 to $63,000 per annum gross. He has an older car as does his wife. 28 He made an important contribution in 1959 when he put up a deposit of 250 pounds for his parents to purchase their house. Although this was repaid over time, as I have indicated, I think it is quite likely that his parents would not have been able to purchase the house without his assistance, given his father's occupation and situation in life. In all probability, they would have continued to live in rented accommodation. 29 Denis had a good relationship with his mother and helped her over the years with her financial affairs. 30 I turn to Gregory. He is fifty-three years old and married with two children aged eleven and twelve. He is a sales manager at a car sales firm and earns by way of salary and bonuses a gross wage in the order of $75,000 to $85,000 per annum. 31 His wife Linda has a part time job earning $3,585 per annum. Apart from this she, their children and his wife's aunt, who lives with them, are dependent on him. 32 Given his expenses, which he details in his affidavit, he has little spare cash and he is facing increasing expenditure for his children as they get older. He suffers from hypertension, has high blood pressure and cholesterol problems. 33 He and his wife own their home at Menai worth $580,000 on which there a mortgage of $8,253. It needs repairs and repainting which he cannot afford without further borrowings. 34 Gregory also had a good relationship with his mother and assisted her from time to time. For example, he would often supervise tradesmen and make all the necessary arrangements for them to quote and do the work. He was the one who did the odd jobs about the house that did not require tradesmen and he mowed the lawns at some stages during his mother's life. 35 In the last year or so he would often visit the deceased while the plaintiff was at work, particularly when she was busy and had to leave early. In 1972 he installed a double garage at the cost of $2,500, which he paid. 36 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. 37 The case was put by the plaintiff on a number of alternative bases: (a) that she should receive the house absolutely, (b) that she should be allowed to acquire her brothers' interests in the house, (c) that she should have a life interest in the house, (d) that she should have an income supplement as she approaches retirement. 38 All of these claims face major evidentiary difficulties. In this regard I am reminded of what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992 where 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 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. 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 s 9(2) 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." 39 That emphasises how I cannot guess and I have to act on the evidence. I turn to the individual claims: (a) That she should receive the house absolutely. 40 This effectively means that the plaintiff suggests to the Court that she should have the whole estate. There is no evidence of why she needs the particular house. All she says in her affidavit evidence on this aspect is as follows: "Paragraph 31. In the events that have happened, I believe it is reasonable that more adequate provision should be made because I am single and older than my brothers and have no income or support, apart from the rent and income from my salary. If the house is sold I will have to find other accommodation." 41 There has been no evidence by her to say that she cannot afford to buy a suitable home such as a villa or a unit with the proceeds she will receive under the will of the deceased. 42 The further problem is the extent of the obligation on a testator to provide for a child. I will deal with this in a little more detail later, but I will just refer to what was said by Young J in Shearer v The Public Trustee and Hawke v The Public Trustee (unreported, 23 March 1998). There his Honour had this to say: "The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants. Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own." (b) Purchase of her brothers' shares. 43 Although she did offer her brothers $100,000 for their shares quite some time ago, she has not specified the price at which she is now prepared to purchase their shares. She has given no evidence which would enable me to conclude that she would be able to borrow the necessary funds. (c) A life interest. 44 Her brother Gregory is at a stage in his life where he needs assistance and a life estate would prevent this happening. In any event, she has been given three years from the date of death to reorganise her living arrangements under the will. (d) Some income supplement. 45 This submission was made without the basics of the necessary evidence being present. So far as her employment is concerned, she said in paragraph 16 the following: "I believe that I will be able to continue working for a reasonable period of time because my health is reasonably good and I have been a long term employee of my present employer." 46 Nothing is said there about when she wishes to retire or when she is likely to retire. Her affidavit gives her income and annexes tax returns but there are absolutely no details of her expenditure. She has savings and, obviously, has been able to save over the years. She has led a single life and she now has the savings to demonstrate that fact. 47 There is no evidence of what any future shortfall might likely be once she does retire, whenever that might happen. I have not been given details of her life expectancy. 48 The simple fact is that I cannot be expected to pluck out of the air figures to provide for such a sum. This is quite contrary to my obligation and was particularly referred to by the Court of Appeal in Singer v Berghouse to which I have referred. 49 If one stands back and looks at the situation, one finds one is dealing with a modest estate. The plaintiff herself did more of the caring for the deceased over the lifetime of the deceased than her brothers although they each helped in their own way. The plaintiff contributed some $12,000 to improvements but it was in the 1990s; in other words, in recent years. 50 Denis, the deceased's son, was the one who actually gave the springboard for there to be any estate at all in this matter. 51 The other son, Gregory, is in a situation where he certainly needs funds. 52 It seems to me that the decision that the testatrix made in drawing her will was the most appropriate one in all the circumstances that she was facing. The plaintiff gets $310,000 from the property and $52,000 from residue. Each son gets $155,000. 53 Clearly, the plaintiff can buy a new residence somewhere and relocate. 54 The simple fact is that the testator had limited funds and the plaintiff cannot expect to be totally provided for at the expense of her brothers who have a proper claim on the bounty of the testator. 55 In my view, the plaintiff's claim fails. 56 Accordingly, I dismiss the summons. (After hearing argument on costs.) 57 It seems to me that it is appropriate that on and from 17 November 2001, the plaintiff pay the defendant's cost on an indemnity basis and I so order. 58 The exhibits can be returned. ********** Last Modified: 04/12/2002 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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