Hulbert v Hulbert [2004] NSWSC 130

New South Wales Supreme Court

CITATION : Hulbert v Hulbert [2004] NSWSC 130 HEARING DATE(S) : 3 and 4 March 2003 JUDGMENT DATE : 5 March 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 67

CATCHWORDS : Family Provision Act - claim by adult son of deceased - legacy provided for the plaintiff inadequate - debt due to the deceased by the plaintiff forgiven - further provision made for the plaintiff. - Wills - construction of will. PARTIES : Russell James Hulbert v Eva Veronica Hulbert FILE NUMBER(S) : SC 2425/02 Mr J Wilson SC for plaintiff and 1st cross defendant COUNSEL : Mr C Harris for defendant Mr L Ellison for 2nd cross defendant Conroy & Stewart SOLICITORS : Tonkin Drysdale Partners L Rundle & Co for 2nd cross defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Friday 5 March 2004

2425/02 Russell James Hulbert v Eva Veronica Hulbert JUDGMENT 1 Master: This is the hearing of an application under the Family Provision Act (1982) NSW (the Act) in respect of the estate of the late Arthur John Hulbert who died on 5 May 2001 aged 83 years. It is also the hearing of a cross-claim brought by the defendant executrix who seeks a determination as to whether upon the true construction of the last will of the deceased, the person referred to as "Jamie Hulbert" in clause 3B of the will is the first cross defendant or the second cross defendant. A judge of the court has referred the hearing of the cross-claim to a Master for hearing. The family members 2 In order to understand the various relationships involved in the case it is necessary to have some understanding of the family of which the deceased was a part. The deceased married on two occasions and after the separation from his second wife he had a relationship with Daphne Gore. 3 The deceased married his first wife Shirley on 31 July 1948. There were three children from that marriage, his son John who died in 1980, his son Russell James Hulbert (the plaintiff) who was born in 1952 and his daughter Robyn who was born in 1954. The plaintiff had a family of four children including Jamie Russell Hulbert the first cross defendant to the construction summons. The deceased's daughter Robyn had four children. 4 The deceased and his wife Shirley were divorced in 1970. The deceased married Sylvia Hodge in December 1971. They had no children and they separated in 1983. 5 The deceased's brother was Edward. He married Yvonne, the executrix under the will of the deceased and defendant in the proceedings. Yvonne had one son by a former marriage known as Leonard who is one of the beneficiaries under the will of the deceased. The latter had three children, a son James Edward Hulbert also known as Jamie, a son Troy Daniel Hulbert and a daughter Melinda Jane Hulbert. The first of these children is the second cross defendant to the cross-claim. Last will of the deceased 6 The deceased made his last will on 20 November 1998 under which he appointed the defendant Yvonne Hulbert as executrix. His principal place of residence known as 32 Erina Avenue, Woy Woy, was to be held to permit Daphne Gore to reside in the house until her death with provision made in case she should vacate the property. In the events which came to pass after the death of the deceased, Daphne Gore vacated the property and her affairs were placed in the hands of the Protective Commissioner. Accordingly clause 3B of the will applies. That clause is in the following terms: "Daphne Gore's death or upon her vacating the property for a period exceeding three (3) months then the property is to be sold and then to be divided equally between Yvonne Hulbert, Russell Hulbert, Len Hulbert, Jamie Hulbert, Troy Hulbert and Melinda Hulbert provided and upon them surviving me and attaining the age of twenty-five (25) years." 7 In clause 4 there was a bequest of the sum of $5,000.00 to each of the deceased's children, the plaintiff and Robyn Hulbert. Apparently such legacies have not been paid. The residue, subject to some doubts about the construction of the clause, passes to Daphne Gore. However, in the events which have happened there is no residue in the estate. The estate of the deceased 8 The principal asset in the estate of the deceased was his home at Woy Woy. That has been sold and the estate comprises an amount of $219,366.00. There is also an amount held in a building society in trust for Robyn in an amount of $5,294.59. Later in this judgment I will refer to a loan due to the deceased by the plaintiff and I find that at the date of death there was an amount of $6,000.00 owed by the plaintiff to the deceased. This is the only other asset apart from some items of personality, which have not concerned the parties to this litigation. 9 There is still some cost to be incurred in the administration of the estate estimated at $550.00. The defendant's costs in respect of these proceedings are estimated at $28,524.00 and those of the plaintiff at $26,000.00. The plaintiff's solicitors act for the first cross defendant and their costs include such costs. The second cross defendant's costs are estimated at $18,506.00. These costs total $73,030.00. 10 One can see that one is dealing with an estate that will be reduced if orders are made in the plaintiff's favour. Because of the order of application of the assets, the defendant's costs of these proceedings will be applied to the residue and then to the legacies in favour of the plaintiff and his sister Robyn. In these circumstances, the amount set aside for Robyn will be used for such costs. The amount of the estate less all costs to date referred to above will come to $157,630.00. The plaintiff's share of this sum is $26,271.00. This is on the basis that he repays the $6,000.00 to the estate. Family chronology 11 The deceased was born in 1918 and he married wife Shirley on 31 July 1948. Their three children were born between 1950 and 1954. The deceased separated from his wife in 1964 and his wife moved out of the home with the children. 12 The plaintiff left school in 1966 and for a while worked with his mother and her friend. Between 1969 in 1979 the plaintiff and the deceased worked together at the Clyde railway works. 13 As I have mentioned, the deceased divorced in 1970 and married his second wife in 1971. The deceased and his wife moved to Woy Woy where he purchased the property, which is now part of its estate. 14 In 1975 the plaintiff moved to Parkes in connection with his employment with the railway. He married his wife in March 1976 and they then had 4 children. Jamie was born on 31 August 1976. In 1976 the plaintiff and his family moved to Caragabal where they lived in a home that was provided to them rent-free. 15 In 1979 the plaintiff moved to Orange and purchased a house. The purchase price was $25,000.00 and the house was purchased using $3,000.00 given by the deceased. The plaintiff borrowed about $22,000.00 from the bank and contributed a small amount from his savings to the purchase. There is no doubt, given the statutory declaration signed by the deceased, that he intended this amount as a gift. 16 In probably about 1983 the deceased advanced $20,000.00 to the plaintiff, which was used to pay off the mortgage to the bank as that mortgage, attracted a very high rate of interest. I will return to the arrangements for the repayment of this advance, as it is a matter of some controversy in the proceedings. In 1983 the deceased and his wife Sylvia separated. 17 In 1984 the plaintiff and his family moved from Orange to Spring Terrace and then in 1988 moved to Koorawatha. In 1992 the plaintiff was made redundant from his position with the railway department and he received a redundancy payment of somewhere between $70,000.00 and $74,000.00. He applied $45,000 of this to pay off a home loan which he had acquired by that stage on the Koorawatha property and $15,000.00 for the purchase of a car. 18 In 1993 the plaintiff wrote to the deceased sending him a cheque for $1,000.00 in part repayment of the loan and mentioned that he was selling the property. He also mentioned that it was hard to sell and he was out of work. In 1994 a sale of the property was achieved and he and his family moved to Lawrence where they purchased a 300 acre farm. They still reside on that farm. 19 On 16 May 1995 the deceased made a will in which he left his two children a legacy $3000.00 each and otherwise disposed of the residue of his estate. He was critical of the plaintiff and his sister as clause four of this will was in the following terms: "4 I state that I have made no further provision in my will for my son Russell James Hulbert or for my daughter Robyn Hulbert as they have chosen not to contact me or see to my welfare in my later life. I further state that I have provided for them during my lifetime." The proper construction of the deceased will 20 Before proceeding to deal with the application under the Family Provision Act it is necessary to determine who was entitled to the one sixth share of the house which under the will is to pass to "Jamie Hulbert". 21 In submissions the first cross defendant emphasised the usual rule that the court cannot consider extrinsic evidence in order to determine to whom the testator was referring unless there is any ambiguity. Reference was made to National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children (1915) A.C. 207. There it was said inter alia: "My Lords, I think the true ground upon which to base a decision in this case is that the accurate use of the name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances." 22 In Perpetual Trustee Co Ltd v Attorney General (NSW) and Public Trustee (estate of late Richard Harris) unreported 2063/86, Bryson J, 27/3/87, said: 'I was referred to a number of authorities. However, none of them appears to me to decide any matter binding on me and compelling any particular conclusion on the construction of the will before me, and as always it is necessary to remember the need to construe the words of the instrument in question, the meaning of which is incapable of being established by any earlier judicial decision which does not deal specifically with that instrument itself. The meaning of wills are not to be discovered by reference to a body of jurisprudence which has developed around any particular word or phrase and can be taken to establish a legal meaning for it; the cases cited to me almost all precede the decision of the House of Lords in Perrin v organ [1943] AC 399, in which Viscount Simon, LC, at p 406, said the following: 'My lords, the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course what the testator meant to do when he made the will, but what the written words he uses mean in the particular case – what are the "expressed intentions" of the testator. In the case of an ordinary English word like "money", which is not always employed in the same sense, I can see no possible justification for fixing on it, as the result of a series of judicial decisions about a series of different wills, a cast-iron meaning which must not be departed from unless special circumstances exist, with the result that this special meaning must be presumed to be the meaning of every testator in every case unless the contrary is shown. I agree, of course that, if a word has only one natural meaning, it is right to attribute that meaning to the word when used in a will unless the context or other circumstances which may be properly considered show that an unusual meaning is intended, but the word "money" has not got one natural or usual meaning. It has several meanings, each of which in appropriate circumstances may be regarded as natural.' It is, after all testators who are telling the courts what dispositions they wish to make, and the process of construction of wills is not a process of legal education administered by court to testators." 23 His Honour's reference to the consequences of only one natural meaning is of course apposite to present case as is His Honour's admonition in the last sentence. 24 In the present case, the first cross defendant who is the son of the plaintiff has his name recorded in his birth certificate as Jamie Russell Hulbert. The second cross defendant who is the son of Leonard has his name recorded in his birth certificate as James Edward Hulbert. In these circumstances neither name is precisely the same as that used in the will. It is of course common for people to be known by other names rather than the names with which they are christened. In this respect there is more room for confusion particularly if the person uses a nickname or perhaps is known to a testator by that nickname. 25 In the present case there is adequate evidence to show that during his early school years the second defendant was known as "Jamie". It was only when he moved to senior school that he started to adopt the name James. It is also abundantly clear that his grandfather, the deceased, only knew him as "Jamie". 26 If one turns to the words in clause 3B of the will, one sees that the testator has referred to persons in descending order of generation. The defendant is the oldest generation, the plaintiff and Leonard are the next-generation and the following three are the third generation. It has to be borne in mind that each of the cross defendants is one of a number of children in their generation. There are only three children of Leonard and thus it is likely that the deceased might have been referring to these three children as their names follow the name of Leonard. If that is the case it is notable that the three children are named in order of seniority. 27 There are in evidence greeting cards sent by the deceased to Jamie Russell Hulbert, the son of the plaintiff. They are however all from early years in the late 1970s or early 1980s. The evidence also discloses that Jamie Russell Hulbert did not have contact with the deceased in the later years of his life no doubt because of the distance which separated his family from the deceased and the reasons to which I will refer later in this judgment. This factor is important because the question of identification has to be considered as at the time of execution of the will, which was in 1998. At that stage the deceased had not seen Jamie Russell Hulbert since 1992 when Jamie was 16 years of age. In contrast he had seen James Edward Hulbert on many occasions about and prior to the making of the will. This included taking part in his 80th birthday celebration, and indeed helping organising it during 1998. 28 In the circumstances I am satisfied that the correct construction of the reference in clause 3B of the will to "Jamie Hulbert" is to the second defendant James Edward Hulbert. The plaintiff's eligibility 29 The plaintiff being a son of the deceased is clearly an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 has set out the two stage approach that a Court must consider. At 209 the following was said:- "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 deceased's arrangements to pay creditors."