New South Wales Supreme Court CITATION : O'Dea & Anor v O'Dea: Estate Phyllis L.M. O'Dea [2005] NSWSC 46 HEARING DATE(S) : 7 and 8 February, 2005 JUDGMENT DATE : 8 February 2005 JURISDICTION : Equity Division JUDGMENT OF : Palmer J DECISION : Time for making application extended; provision for Plaintiffs ordered. CATCHWORDS : FAMILY PROVISION ACT - Claim by three grandchildren - extension of time sought. LEGISLATION CITED : Family Provision Act (1982) (NSW) - s.6, s.7, s.16 CASES CITED : Warren v McKnight (1996) 40 NSWLR 390 Tina Louise O'Dea - First Plaintiff Jason Mark O'Dea - Second Plaintiff PARTIES : Scott Patrick O'Dea - Third Plaintiff Lynette Elizabeth Robertson - Defendant FILE NUMBER(S) : SC 6042/02 Ms E. Cohen - Plaintiffs COUNSEL : A.L. Hill - Defendant La Fontaine Solicitors - Plaintiffs SOLICITORS : Susan Goodsell - Defendant LOWER COURT JURISDICTION : Ex tempore 1 Before the Court are three applications under s.7 of the Family Provision Act (1982) (NSW) for provision out of the estate of the late Phyllis L.M. O'Dea. The applicants are three of her grandchildren, Tina, Scott and Jason O'Dea. For the sake of convenient reference and without intending any disrespect I will refer to the Plaintiffs as Tina, Scott and Jason and to the Defendant, the deceased's daughter, as Lynette. 2 The late Mrs O'Dea died on 3 January 2001 leaving a will dated 27 August 1999. Probate of the will was granted to Lynette on 6 June 2001. Lynette is the sole beneficiary of her mother's estate under the will. 3 The estate is a very modest one, comprising nothing except a house in Percival Road, Stanmore, in which the deceased and her husband, who predeceased her, had lived. They had owned it for many years as the matrimonial home. 4 Lynette had not received notice of any prospective claim under the Family Provision Act by the time the period provided by s.16(1)(b) of the Act had expired, that is, by 3 July 2002. In October 2002, she sold the deceased's house, realising net proceeds of sale of $511,348. 5 On 14 October 2002 Jason's solicitor sent a letter to Lynette advising of a claim by Jason against the estate under the Act and seeking an undertaking from Lynette not to dispose of the estate pending determination of that claim. Lynette says that she did not receive that letter but Mr La Fontaine, Jason's solicitor, says that he sent it. It was correctly addressed to Lynette's home. There is no explanation why the letter, having been duly posted and correctly addressed, would not have been delivered in the ordinary course of mail. I find that the letter was sent and was received by Lynette on or about 14 October 2002. 6 In February and March 2003, after the settlement of the sale of the Percival Street property had occurred, Lynette used part of the proceeds of sale to purchase two studio units as investments for herself. She used part of the proceeds to buy herself a car and also to make gifts of $30,000 to each of her three children. Those dispositions were all made after she had received notice of Jason's claim. 7 On 10 February 2003 Lynette was served with the Summons by which these proceedings were commenced, that is, almost eight months after the expiration of the period prescribed by s.16(1)(b) of the Act. 8 Each of the Plaintiffs, being a grandchild of the deceased, is an eligible person as defined in s.6(1)(d) of the Act. The Plaintiffs seek an extension of time for the commencement of these proceedings under s.16(3) of the Act. 9 I am satisfied that the reason for the failure on the part of the Plaintiffs to commence proceedings within the statutory period was a complete unawareness on their part that they might have any legal claim upon the deceased's estate. It was only when Lynette ejected Jason from the house at Stanmore in preparation for the auction of that property in October 2002 that Jason spoke to a solicitor, Mr La Fontaine, and was advised that he might have a successful claim under the Act against the estate. I am of the opinion that sufficient cause has been shown for the Plaintiffs' failure to commence proceedings under the Act was in time. 10 The other discretionary factors which should be taken into account in an application for an extension of time under s.16(3) are whether there would be prejudice to beneficiaries, whether there has been unconscionable conduct by the Plaintiffs, and the strength of the Plaintiffs' case: see Warren v McKnight (1996) 40 NSWLR 390, at 394. 11 In the present case, Lynette had made dispositions of the estate for her own benefit and for the benefit of her children after the statutory period expired, but also after she had received notice of a claim by Jason under the Act. It would not have been possible at the time that she received that notice to ascertain the quantum of a successful claim by Jason, so that Lynette clearly took the risk in making the dispositions which she did that at least one or more of them might have to be undone later. Most of the estate proceeds have been invested by Lynette in the home units to which I have referred so that in that sense the bulk of the estate has been preserved and is available to meet any claims against the estate under the Act which might prove to be successful. 12 As to the third discretionary factor, unconscionable conduct, I take this to refer to unconscionable conduct relevant to delay in commencing proceedings under the Act. An example would be statements by a plaintiff throughout the statutory period that no claim would be made, thereby inducing the beneficiaries to act to their detriment. No unconscionable conduct has occurred in the present case. As to the strength of the Plaintiffs' case, it is sufficient in my opinion to warrant the making of the applications, as will appear shortly. In these circumstances, an extension of time under s.16(3) of the Act is, in my opinion, justified. I therefore grant the extension of time. 13 The facts, in brief, are as follows. The deceased was born in 1916 and had three children, Lynette, Phillip and Warren. The family moved into the Stanmore house in about 1953. Lynette married in 1968. She had three children. She has been divorced since 1988. The evidence is not clear whether Phillip married, but he had three children, Tina born in November 1971 (now 34), Scott, born in April 1973 (now 31), and Jason, born in March 1977 (now 27). The deceased's third child, Warren, predeceased her. 14 In about 1978 or early 1979, the mother of the Plaintiffs apparently left and was no longer involved in their upbringing. The children and Phillip moved into the deceased's house at Stanmore and lived there for a number of years with the deceased, her husband and Warren. 15 In 1980, Phillip purchased a house at Kingswood. He lived there for a short time with the Plaintiffs but, because of his work in Sydney, he returned to live at the Stanmore home during the week and stayed at the Kingswood house on weekends. However, the Plaintiffs continued to live at the Stanmore house until they moved out, as will shortly appear. 16 I am satisfied that while the Plaintiffs were living at the Stanmore house the deceased was their primary carer and fulfilled the role of a mother to them. During that time the Plaintiffs were totally dependent upon her and her husband. It may very well have been that Phillip, their father, made some contribution to their maintenance but it is quite clear that the deceased really stood in the place of the mother of the children. 17 In 1987, Tina moved out of the deceased's home in acrimonious circumstances. Scott moved out in about 1996. Jason has moved out of the house and returned on several occasions, as I will explain shortly. 18 The deceased and her husband lived in very modest circumstances. The relationships within the family were often stormy, accompanied by violently abusive language amongst the grandchildren. There was also a history of alcohol abuse. It seems that the deceased was a kind and decent person who did her best to inculcate certain standards of good behaviour in her grandchildren but, at least to her perception, without much success. 19 I think it may be said, without intending any disrespect, that each of the three Plaintiffs in adult life has led a shiftless and unsettled life. Each of them clearly has had a history from early adolescence of drug and alcohol abuse. None has ever found regular employment. Indeed, there is no evidence that any of them has made any serious endeavour, either to obtain any particular employment skill or to find any steady remunerative employment. 20 Tina is now the mother of four young children. One has a learning difficulty and another has medical problems. The fathers do not seem able to make any material contribution to their maintenance. Tina has received $28,000 from the estate of her father, Phillip, who died in March 2003. After payment of various expenses Tina retains, in an account controlled by her solicitor Mr La Fontaine, the sum of some $12,000. 21 It is clear from the evidence that after Tina left home she did not remain very close to the deceased. She certainly attended family functions on occasion but there were frequent disputes, between her and the deceased's husband in particular. The deceased certainly endeavoured to maintain a relationship with Tina, but it cannot be said that that relationship was, at least on Tina's part, a close, loving and supportive relationship. The deceased nevertheless acknowledged that she had played the role of mother to Tina for some years. 22 Apart from the sum of some $12,000 which is the remainder of her distribution from her father's estate, Tina has no assets and no income other than what she receives from family assistance and parenting assistance from Centrelink. She receives approximately $1,132 per fortnight and her expenses are barely covered by that income. 23 Scott, as I have said, left the deceased's house in about 1996. He has had occasional employment. There has been a history of excessive alcohol consumption on the part of Scott and there is also evidence of drug abuse. It is clear that Scott was often abusive towards his grandmother. At one stage she took out an Apprehended Violence Order against him. However, there is no evidence of any physical violence by Scott directed towards the deceased. It seems that the relationship between the deceased and Scott was a troubled one and that Scott often took advantage of the deceased's generosity in terms of money and other conveniences. 24 I accept that when the deceased's house was destroyed by fire in October 1997, Scott did some work towards its restoration. However, I am quite satisfied that the vast majority of such work as was undertaken to restore the property and make it to some extent liveable was done by Lynette and by others whom she supervised. Nevertheless, as I have said, Scott did something to assist his grandmother after that disaster. 25 Scott now has two children and he is living in a relationship with their mother. He is presently employed on an average of about one day a week at a remuneration of about $80 per day. Otherwise, he is dependent upon the supporting parents' benefit. His partner does not work and is a full-time mother. She also receives social security benefits. Scott, his partner and the children live in a caravan park. Like Tina, Scott received a distribution of $28,000 from his father's estate. After payment of debts and other expenses, some $6,000 remains. He has no assets of any real value. 26 Jason lived with the deceased on and off through most of his late adolescence and until her death. Jason has had a very troubled history. It is clear that from early adolescence he developed a severe alcohol and drug abuse problem. He has conceded in the witness box and in his affidavits that he has frequently taken money from the deceased for alcohol and particularly for drugs. Some of that money he, in short, badgered out of the deceased. Other money he took surreptitiously or dishonestly. He applied money given by the deceased to him for the payment of various household bills towards his drug and alcohol habits. He forged her signature on a bank account and withdrew money. He used her credit cards for his purposes. It is, indeed, a shameful course of conduct and in the witness box Jason confessed to that shameful conduct. It must really have been very distressing for his grandmother to have had to deal with that sort of deception on the part of Jason, quite apart from all of the other difficulties which he was causing her. 27 Jason began to be a trouble to his grandmother from early adolescence. He took to wandering off or absenting himself from home from about the age of twelve or thirteen and others had to go to find him, often at Kings Cross or Darlinghurst, and bring him back. His drug habits led Jason into crime. In June 2003, he was sentenced to a term of imprisonment, having been convicted of obtaining a benefit by deception. He was released from gaol in 2004 and shortly afterwards was arrested for breaking into a house. He was convicted and has again been sentenced to gaol. He is presently serving a term of imprisonment and is due for release on 8 July 2005. 28 The life of Jason to the present time can fairly be described as the life of a deeply troubled young person, completely aimless and shiftless without any regular form of employment and, I think, spending most of his time in a daze, induced either by alcohol or drugs or a combination of both. Jason would often stay at other friends' places or move temporarily into accommodation with other people, only to return periodically to his grandmother's house. He often brought friends with him, likewise affected either by drugs or alcohol, and this no doubt caused the deceased a great deal of distress. However, it is clear that the deceased regarded Jason very much as a child of hers and was prepared to put up with a great deal of bad behaviour on his part, although not without considerable complaint to the rest of her family. 29 Jason's position at the moment, therefore, is that he is in gaol serving a term of imprisonment and is shortly due for release. He has received, like Tina and Scott, a distribution from his father's estate. After payment of debts and expenses, Jason has a balance of some $8,500 in an account held by his solicitor. Jason has no other assets, no income and no skills or training for employment. He is doing a course while in gaol which he hopes will assist him with employment when he is released. 30 The position of Lynette must now be considered. In my opinion, the foremost testamentary obligation of the deceased was to make provision for her daughter, Lynette, who accepted the prime responsibility for looking after the deceased and caring for her in the last years of her life. It is clear that there was a very good and supporting relationship between Lynette and the deceased and that Lynette did what she could to help her mother in dealing with the hardships of her later years, most of them caused by Phillip's ill health and the difficult behaviour of the Plaintiffs, particularly Jason. 31 Lynette's position is as follows. She is a fifty-five year old single woman and does not enjoy good health. She owns her own home at Bondi Junction, said to be valued at $500,000. She has not been employed for many years. Her only income now is the income from the two studio apartments which she has acquired as investments out of the estate's funds. One, purchased for $180,000, produces a net weekly income of $115, and the other, purchased for $170,000, produces a net weekly income of $143. Accordingly, from both units she receives a total of $258 nett per week. Lynette is studying to complete a diploma of health and science course, but ill health has temporarily suspended her attendance at that course. If she is successful in completing the course, she will be qualified to carry out various forms of massage from which she may derive some remuneration. However, it must be accepted that she will then be almost fifty-eight years of age and prospects of obtaining employment are not particularly good. 32 It is quite clear that due to Lynette's age and her condition in life, the deceased's primary testamentary obligation was, as I have said, to provide for her. The Plaintiffs are, each of them, young and in good health. They each have their lives ahead of them. They have every opportunity to make something of their lives with effort and perseverance. Nevertheless, they are clearly in extremely difficult financial circumstances. I say that particularly of Tina by reason of the fact that she has the responsibility of caring for four young children and, to a somewhat lesser extent, of Scott as well who has two young children to care for. Jason has no dependants and no responsibilities but he is clearly without any means to establish himself in life if he ever forms the desire to establish himself in a secure life rather than leading the sort of life he has lived up to the present. 33 It seems to me that because the deceased fulfilled the role of mother to the three Plaintiffs in their early childhood and into their adolescence, she had some testamentary obligation to provide for them, subject always to the primary obligation to provide for Lynette. 34 It is true that the Plaintiffs have not had particularly successful lives, at least in financial terms, up to the present time and that that is due to a large degree to their own behaviour, but that does not disqualify a child or a dependant in a close relationship with a testator from any consideration in testamentary obligation. 35 It seems to me, therefore, that some provision should have been made out of the testator's estate for each of the Plaintiffs. The amount of such provision now to be made depends upon their needs and the paramount needs of Lynette. The estate which is to be disposed of must be left in such a way that Lynette has a substantial income out of at least one of the units which she has purchased. The estate, as I said, is some $511,000. Legal costs of these proceedings, if paid out of the estate, will total $124,000, that is, some $64,000 for the Plaintiffs' legal costs and some $60,000 for the Defendant's legal costs. I think this is a case in which it is proper that legal costs on both sides be paid out of the estate. If legal costs amounts to $124,000, it is clear that one of the two investments of Lynette will have to be sold, that is one of the two units. If the unit acquired for $170,000 is sold for about that figure, there will be some $45,000 left in cash from the proceeds of sale. 36 I do not think that any more than a total of $45,000 should be paid to the Plaintiffs, for two reasons. The first is, primarily, that they do not demonstrate a need individually or collectively for a total sum greater than that amount. The second is that confining the further provision to that amount will at least leave Lynette with one of the units as an investment for her future in life. The income from the units represents her first secure income for quite some time. A provision of some $45,000 from the estate will therefore leave Lynette with her house and one of the units from which to derive an income. 37 It seems to me that the distribution of $45,000 from the estate should be apportioned amongst the three children as follows. By reason of the fact that Tina has four children to care for, two of them with difficulties which will doubtless cause additional expenditure, she should have a sum of $25,000 from the estate. Scott has two children to care for. Reflecting that circumstance, in my view a proper provision for him out of the estate would be $12,500. As I have said, Jason should receive something to enable him to get a new start in life, if he chooses to take that opportunity. I think that he should receive $7,500 out of the estate. That amount reflects two things. Firstly, the fact that Jason has no dependants; secondly, that it is quite clear from the evidence that Jason's behaviour towards the deceased has been, to say the least, very selfish and unsatisfactory. He has already derived considerable financial benefit from her, often by dishonest means. In those circumstances, I think that provision in the sum of $7,500 for Jason is adequate. 38 The orders of the Court will be that there be provision out of the estate of the deceased in favour of Tina in the sum of $25,000, for Scott in the sum of $12,500 and for Jason in the sum of $7,500. 39 I order that the Plaintiffs' costs be paid out of the estate and that the Defendant's costs be paid out of the estate, on a full indemnity basis. 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