Towers v Towers [2004] NSWSC 1231

New South Wales Supreme Court

CITATION : Towers v Towers [2004] NSWSC 1231 HEARING DATE(S) : 13, 14 December 2004 JUDGMENT DATE : 17 December 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 50

CATCHWORDS : Family Provision. Application by two sons where the deceased left estate to her daughter. Legacies ordered. No matter of principle. PARTIES : Robert Towers v Janese Ann Towers Gregory Connell Towers v Janese Ann Towers (Estate of Norma Anne Towers) FILE NUMBER(S) : SC 2436 of 2004; 5323 of 2003 Mr B.M. Antcliffe for Robert Towers COUNSEL : Mr J. Anderson for Gregory Towers Mr G. George for defendant Austin & Giugni for Robert Towers SOLICITORS : Jackson Smith for Gregory Towers Chris Peacock & Co for defendant

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

Master Macready

Friday 17 December 2004

5323/03 Gregory Connel Towers v Janese Ann Towers 2436/04 Robert Towers v Janese Ann Towers (Estate of late Norma Anne Towers) JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Norma Anne Towers who died on 21 November 2002 aged 78 years. The parties to these proceedings are her three children. Her husband predeceased her. The will of the deceased 2 The deceased made her last will on 19 July 2002 in which she appointed her daughter, the defendant in both these proceedings as executrix of her will and left the whole of her estate to her daughter. Apparently the deceased thought that her sons each owned a house and had good jobs. As her daughter did not have a house she wished to leave her house to her. An earlier will provided that the estate was to be divided equally between her three children. Assets in the estate 3 Apart from some furniture worth $2,000.00 the only asset in the estate was the deceased's home at 602 Mowbray Road, Lane Cove. That has been transferred to the defendant and it is agreed that it now has a value of $680,000.00. 4 The defendant's costs amount to $47,000.00. The plaintiff Gregory's costs amount to $56,150.00 and those of Robert are $24,000.00. The defendant has already paid $30,000.00 of her costs. Family history 5 The parties' father, Kenneth Towers was born on 12 December 1924. The deceased was born on 3 January 1925. Their son Robert was born on 17 September 1948, Gregory on 10 January 1950 and their daughter, Janese, on 23 January 1952. 6 In 1954 Mr and Mrs Towers (senior) moved into a Housing Commission house at 602 Mowbray Road, Lane Cove that they later purchased. 7 The plaintiff Gregory married Kerrie Coleman on 26 September 1970 and his son Darren was born on 11 March 1971. His daughter Karen-Lee Towers was born on 11 May 1973. 8 The defendant left school in 1966 and married Trevor Sherwood in November 1972. After that marriage ended in 1974, she travelled to England where she stayed until 1976. She returned to Australia at her father's request after he was diagnosed with lung cancer. The parties' father died in 1978. 9 On 9 June 1980 the defendant's son Brett was born. Between 1980 and 1985 Gregory lived at home with the deceased and the defendant 10 In May 1980 Robert Towers married his wife and purchased a home at Telopea and moved to live there. 11 It was also in 1980 that Gregory's wife Kerry died. Shortly thereafter, the deceased had a heart attack and was cared for by the defendant. 12 In 1981 the defendant began using heroin and this led to her treatment at Odyssey house between 1983 and 1985. At the end of that time she commenced a relationship with Mark Trass who she met during that period. In 1989 Mark Trass developed Hodgkin's lymphoma and in 1992 he had his leg amputated. In that year the defendant, Mark Trass and the defendant's son Brett moved back to live in the deceased's house. They remained there until 1994 when they moved to Beecroft. 13 In 1998 Mark Trass died from Hodgkin's lymphoma. There is a dispute as to what happened with some of the funds from his estate with the defendant suggesting that the plaintiff Robert took some of the funds. After the death of Mark Trass, the defendant and her son Brett returned to live in the deceased's house. Brett left home shortly after the deceased's death and moved into a flat. The defendant still remains living in that house. 14 In 1981 the plaintiff Robert purchased a hardware store at Granville and was occupied with that businesses for some time. His son, Christopher, was born on the 14 August 1983 and his daughter Rebecca was born on 5 October 1986. Shortly thereafter, the plaintiff Robert and his wife purchased a further hardware store at Rydalmere. They had two further children, a son Luke who was born on 4 April 1988 and a son Joshua who was born on 12 January 1990. 15 In 1999 due to a downturn in the hardware business the plaintiff Robert closed the two stores and commenced work in an employed position as a store manager. In 2001 the plaintiff Robert and his wife sold their house for $370,000.00 and purchased a new house at Pennant Hills. 16 In 1985 the plaintiff Gregory and his partner moved into the deceased's house. They remained there until 1988 when they purchased a house and moved out from the deceased's home. Their relationship finished in 1995 and the plaintiff Gregory returned to live in the deceased's house. In that year the plaintiff Gregory suffered an injury to his lower back, which has caused him considerable problems. In 1998 he had a further work injury when he fell about five metres. He suffered broken vertebrae and was later found to be suffering from a broken neck. 17 On 19 September 1998 the plaintiff Gregory married his wife Diana Fiel. She and her son moved into the deceased's house. In 1999 the plaintiff Gregory had a motor vehicle accident, which led to him being treated for depression. Eventually in March 2003 he received $143,000.00 as compensation for injuries suffered as a result of the accident. 18 As already stated, the deceased made her will on 19 July 2002 and the deceased died on 21 November 2002. The summons in the plaintiff Gregory's matter was filed on 5 October 2003 and on 21 November 2003 the house was transmitted to the defendant. The summons was filed in Robert's matter on 16 April 2004 and accordingly both proceedings have been commenced within time. Eligibility 19 Both plaintiffs are clearly eligible persons. In the matter of Singer v Berghouse (1994) 181 CLR 201 the High Court has set out the two stage approach that a Court must take in dealing with applications under the Family Provision Act. 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. 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."