Agcaoglyu v Public Trustee [2005] NSWSC 26

New South Wales Supreme Court

Agcaoglyu v Public Trustee [2005] NSWSC 26 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 02/02/2004

JUDGMENT DATE : 3 February 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 49

CATCHWORDS : Family Provision. Application by three children in respect of an estate left to a carer, a friend and charities. Order for legacies. No matter of principle.

PARTIES : Gloria Jean Agcaoglyu & March Ronald Northridge & Raymond Dennis Northridge

FILE NUMBER(S) : SC 3037 of 2004

Mr L. Ellison with Mr J Patey for plaintiffs COUNSEL : Mr Flaherty for defendant

Patrick Timbs & Company for plaintiffs SOLICITORS : Mr B Maher Solicitor for the Public Trustee

LOWER COURT JURISDICTION :

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

MASTER MACREADY

THURSDAY 3 FEBRUARY 2005

3037/04 - GLORIA JEAN AGCAOGLU & ORS v THE PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF THELMA DOROTHY NORTHRIDGE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Thelma Dorothy Northridge who died on 18 September 2003 aged eighty-seven years. The deceased was survived by her seven children. Three of the children are plaintiffs, the others having been given notice but making no claim. 2 The deceased made her last will on 21 March 2003. She left legacies of $15,000 to each of two of her children, June Rayner and Helen McCardell. She left a legacy of $100,000 to Dennis Vannatter, with a legacy of $50,000 to Veronica Teng. The residue of the estate was divided between the Salvation Army, the Children's Hospital at Westmead and the Royal Institute for Deaf and Blind Children. 3 It is plain on the evidence that there has been no connection between those institutions and the deceased in the deceased's lifetime to indicate any reason why she would wish to benefit them, other than her general charitable intention. 4 There was also found in the papers of the deceased a letter explaining why she made no provision for some of her children and that is dated 5 March 2001. 5 The deceased's house has been sold and the assets reduced to cash. The estate now amounts to a sum of $307,795.40. The defendant's costs amount to $27,500 and the plaintiffs', $42,745, a total of $70,245. Family History 6 The deceased was born on 8 October 1915 and her children were born on various dates. The first plaintiff Gloria was born on 9 March 1942, the third plaintiff Raymond on 6 December 1950 and the second plaintiff Mark on 3 November 1957. In the early 1960s Gloria married. Gloria and her husband lived with the deceased in her home. They eventually moved into Housing Commission accommodation in 1965. It was on 7 November 1967 that Dennis Vannatter was born. I will come back to his relationship with the deceased later. He was in fact a carer of the deceased in her later years. 7 By 1970 Raymond had left home to make his way in life and he married in September 1975. 8 The deceased's husband died in July 1977. Mark, who was somewhat younger, left home in 1982 and he married in that year. In 1986 the first plaintiff Gloria was divorced from her first husband. In 1989 Dennis Vannatter commenced to live in the deceased house. He apparently was introduced to the deceased by one of the other daughters who is not a party to the proceedings. 9 In 1995 Mr Vannatter became a full-time carer and was paid a carer's pension to look after the deceased. Mark's marriage, unfortunately, broke down in 1996 and between April and October 2000 he lived with the deceased at the Cabramatta property. 10 On 5 March 2001 the deceased wrote a letter which she said was to be placed with the will, which does not appear in evidence, outlining the reasons for disinheriting some of the children, particularly her other daughter who, it seems, caused her real problems. They have not made claims in these proceedings. Mark's marriage was eventually dissolved in March 2001. 11 Between April and November of 2002 Raymond also had matrimonial problems and he separated from his wife for seven months. At this stage he lived with the deceased for that period. He is now back together with his wife. 12 The deceased's will was made not long after this on 21 March 2003 and she died on 18 September 2003. Probate was granted and the applications before me were commenced within time. All the plaintiffs are eligible persons. 13 In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take. At p 209 it 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 inter-relationship which exists between 'adequate provision' and 'proper maintenance' et cetera 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 et cetera 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 any 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." 14 I turn to deal with the situation in life of the plaintiff, Gloria Agcaoglu. Gloria is sixty-two years of age, single, and has a dependent twenty-six-year-old child who suffers from psychiatric problems and will always be dependent upon the plaintiff. She lives in a one-bedroom Housing Commission flat. Melanie, her daughter, stays three days a week - the maximum permitted - and at other times with her aunt who cares for her. 15 The plaintiff normally relies on the pension which, in her case, is $387 per fortnight after the rent is deducted and her daughter Melanie receives a disability pension of about $520 per fortnight. They just manage to meet their expenses. The plaintiff has no assets of substance, apart from furniture. She has $52 in the bank and has debts to David Jones of $865. 16 She has occasionally helped her sister who runs a business but does not receive any payment for that. There was some suggestion she may have done some other work but I am not satisfied that there is any substantive evidence of her being able to do any other work. She in fact suffers from glaucoma, hypertension, rheumatoid arthritis and has stress problems. 17 It is necessary to see how she has been left without adequate provision for her maintenance, education and advancement in life. She lives a very restricted life with her daughter, who requires continual care and one thing she would like to have is a car which will enable her to have some flexibility in looking after her daughter. This is probably a proper matter and a car could be obtained for a figure between $21,000 and $25,000. She needs some dental work done at a cost of $4500 and will obviously need to repay her debts. 18 It is also apparent from her financial situation that if it is appropriate she should have something for contingencies because she has absolutely nothing behind her. Because she has always continued to be on the pension she is unlikely to ever achieve any other assets. She has to bear the uncertainty of Melanie's problems and is responsible for looking after her disabled daughter. 19 It is necessary, of course, to address the relationship between the plaintiff Gloria and the deceased. She was not provided for under the will and there is in evidence an instruction by the deceased which alleges that she and her brothers had no contact with the deceased and that they had, to use the expression, "ripped her off over the years". 20 The question of whether there was conduct disentitling was a matter of some contest and the clear evidence from the plaintiff was that she did have contact with the deceased. The letter in question of March 2001 is one which obviously concentrates very substantially on some of the other daughters and the difficulty the deceased had with them. It also contains an allegation that Gloria and her husband lived in the home and paid no outgoings for over five years. According to Gloria it was two years. Whether it was two or five years, the important thing is it was something which obviously was agreeable to the deceased and, more particularly, it occurred in the early 1960s. This seems to be something that has been thought up at a later time. 21 One would think, having regard to the long relationship between the plaintiff and her mother over the period that all that was well in the past. 22 A problem that arose in the family concerns the carer, Dennis Vannatter, who came into the home in 1989. There seems to be antipathy perhaps between him and the plaintiff Gloria because it seems that Mr Vannatter, who now, apparently, has adopted the surname of the deceased, would from time to time, if the plaintiff Gloria rang, avoid putting her through to the deceased. There is evidence given by one of the sons, when he was living in the house, observing Mr Vannatter acting in this way to persons who called to speak to the deceased. For reasons which I will express later, I accept that evidence. 23 It seems even notwithstanding these difficulties placed in the way, the plaintiff still managed to make contact with her mother and I am satisfied that there was appropriate contact between the plaintiff Gloria and the deceased. There was certainly no abandonment of the deceased. 24 The complaints in the letter of 5 March 2001 really seem to be that the plaintiff Gloria was in the background when the main fight occurred between the deceased and Noelene. Certainly there was nothing physically done by the plaintiff to the deceased in contrast to the other sister. It is also worth noting that there was continued contact thereafter between the plaintiff and the deceased and the incident, although clearly having a substantial effect on the deceased's attitude to her other children, does not seem to have interrupted any other arrangement with Gloria. 25 In summary, I do not think there is anything in the relationship between the plaintiff and the deceased to disentitle her to any claim or in fact to make any reduction in the claim. 26 I turn to deal with the situation of Mark Ronald Northridge. Mark is forty-seven years of age, divorced and lives in a flat with his son Benjamin, who is aged eighteen years. Benjamin is an apprentice electrician. He has a flatmate, Jeanette Choong, who is a forty-seven-year-old accountant. It was suggested in cross-examination she was the de facto wife of Mark. However, the only piece of evidence that could found any such assertion was a superannuation fund which is self-managed which was set up to cover both the superannuation of Mark and also Ms Choong. It is a self-managed fund and each has an interest in it and they are both parties to it. One has to bear in mind that Ms Choong is an accountant and no doubt it is convenient that if they have lived together to arrange their affairs in that way. But that is the only evidence. There is no evidence of familiarity or other indicia of such a relationship although on a couple of occasions Ms Choong was at the deceased's home with Mark. 27 Absent any other evidence which would suggest some relationship - and such evidence would not be hard to obtain if it did exist - I do not think there was any such de facto relationship and therefore her assets are, of course, quite irrelevant. 28 Mark worked at Telecom for many years and he has had various positions in marketing since then. He has good business qualifications, although he has not completed his Masters in Business Administration. Between June 2002 and 2003 he worked for a company Vircom at a reasonable salary of $65,000 per annum. In June 2003 he suffered a thyroid problem and was operated on and apparently has some damage to his voice. That, apparently, does cause him problems in dealing with clients and because of these problems he was in fact retrenched by his employer in June 2003. 29 He has had one consultancy job through a friend at Telecom since then which earned him a few thousand dollars in July that year but has not been able to obtain anything further. There is a substantial number of letters of refusal of employment. It seems to me that Mark has been diligently trying to obtain employment. He has, for instance, obtained qualifications in security and in the building industry, so he in fact can get jobs in those industries. Given his age and perhaps over-qualification, I do not think his prospects are very good. 30 So far as assets are concerned, he has a Holden Commodore 2000 model worth $35,000, a Mazda Bravo, which is now used by his son, valued at $10,000. He owes $27,000 on hire purchase. 31 Over the years he has used his retrenchment moneys to live on and he cannot, of course, get any Social Security until they used up. He now has a Newstart allowance of $491.40 per fortnight. He has recently had to borrow $4000 from the superannuation fund which he will need to repay by June 2005. 32 So far as his relationship with the deceased is concerned, there is, of course, the will instructions to which I have referred and the suggestion of having ripped off the deceased. 33 The evidence in the case is, of course, quite to the contrary. He did visit the deceased and kept in contact. Even at the time when he was visiting he noticed that the deceased would sometimes confuse his name with that of his brother and this showed some of the problems the deceased was having. He also gave evidence she would ask him for money and from to time he did give her money. It is also notable he reports the deceased accused Dennis Vannatter of taking her money. These things are important because they go to the accuracy of the allegations that have been made by the deceased and whether she may have been in the habit of making such allegations about others. 34 In my view there is nothing in the relationship between the plaintiff and the deceased which would in any way impact upon his claim. He obviously has needs, he has to discharge his debts, he has no work and he needs a fund which will help him until such time as he gets employment. The problems are not of his making. These are unfortunate circumstances in life. 35 I turn to the situation of Raymond Northridge. Raymond is fifty-five years of age, he is married with no children. He has no qualifications and worked as a labourer for many years. Over the last ten years he has been working as a distributor of firewood. It is difficult for him as he has back problems which have been exacerbated by a recent motor cycle accident. He has obviously in the course of that work got to load and unload trucks whilst in the course of his deliveries. He owns a truck worth $12,000 and a motor cycle worth $9000. He has some furniture and he has capital in his business which is used to buy and sell wood of some $7000. His wife has a car and some furniture. They live in rented accommodation and neither of them have any superannuation and, given the level of his employment, there is little prospect of them achieving any further savings. 36 So far as his relationship with the deceased is concerned, he, like his brother, lived with the deceased for seven months in 2002. According to his evidence he gave her money during the period even though he was on a pension and he contributed to the household. For instance, he bought a fridge for $800, which he left there, and he also would buy meals over a period. 37 There are a number of matters raised in respect of Raymond by Dennis Vannatter. One was a proposal which Mr Vannatter referred to where the property of the deceased was to be transferred to Raymond Northridge for no consideration. It is clear that Raymond found a solicitor who the deceased saw and nothing really transpired about the proposal as the solicitor was obviously concerned about it. According to Raymond this was something which was suggested by his mother. According to Dennis Vannatter it was Raymond's suggestion. 38 This raises a question of credit of the witnesses. Dennis Vannatter is a person who suffers from some intellectual difficulties. He is on an invalid pension and he has been on that pension effectively the whole of his life from when he was seventeen. He is now forty-seven years of age. 39 The precise nature of the difficulties was not dealt with in the reports of doctors. He seems to be concerned with the metaphysical and in some sense is an innocuous sort of person. I was not particularly impressed in the way he gave his evidence. Whether that is the result of his intellectual disabilities or otherwise is not clear to me. However, comparing him to Raymond, who I found to be a straight-forward, normal, hard-working person, clearly I prefer Raymond's evidence to that of Dennis. I might say that the same comments apply in respect of comparing Mark's evidence to Dennis'. 40 Another suggestion that was raised - and this does not really relate to the relationship with the deceased - was there were guns in the house. Clearly Raymond owned a gun and a pistol. According to him, when he separated from his wife they remained locked up in the safe in the matrimonial home and he did not have them at the property of the deceased when he was living there. I accept his evidence as to this but in any event it seems to me a somewhat irrelevant matter as the evidence did not affect the relationship with the deceased. 41 Clearly, Raymond has nothing behind him and he is unlikely to get anything behind him. His income, both of himself and his partner who earns a small amount of cash per week, only amounts to $850 per week and they have to live in rented accommodation which costs $200 a week. His future is uncertain and he will have no superannuation and only a pension to look forward to. 42 It is necessary to look at the situation in life of others who have a claim on the bounty of the deceased. In this case the first one is Veronica Teng. Veronica is a middle-age lady who is separated from her husband. She still resides in the matrimonial home which is apparently subject to some yet unmade claim by her husband, although she has been separated, I think, for ten or fifteen years. There is only a very small mortgage of some $3800 on the house and she has total liabilities of some $34,000. 43 Her income to support herself is $884.25 per fortnight and her expenses amount to $615 per fortnight. Her relationship with the deceased appears to be nothing more than a friend. She knew the deceased for some five years and used to visit from time to time. Apparently they had an interest in tarot cards and they had an ordinary friendship. 44 The other person is Dennis Vannatter. He is single and lives on a pension of $464 per fortnight in a Housing Commission flat for which he pays $113.80 per fortnight. He has never worked in his life because of his disability and it is obviously clear he will never work in the future. 45 Importantly, so far as his relationship with the deceased is concerned, he was a paid carer from 1995. He received a carer's pension and, although he says he offered to pay the rent, the fact of the matter is he did not pay any rent for his occupation of the deceased's home. It is to be borne in mind the period he was there was some fourteen years. 46 It seems to me in this matter the three plaintiffs have been excluded for reasons given by the testator which I do not accept existed. The problem may simply have been the ageing of the testator, the worries and concerns she had or they may have come from some other source. Whatever it is, I do not accept them. 47 All of these children have been left without adequate provision. They, in their applications, do not wish to disturb the gift of $15,000 to each of their siblings. This would leave a residue before considering costs of about $120,000 for paying for the legacies without disturbing the legacies which are to go to the two friends of the deceased. 48 In my view, I think the minimum amount which the three plaintiffs should have is an equal share in the $120,000. It seems to me that because of probably the misguided views that the deceased had there is really no reason why the two legatees, Dennis Vannatter and Veronica Teng, should receive such large legacies. Dennis Vannatter was a paid carer, as I observed, and had a substantial period of rent-free accommodation. 49 In the circumstances, the orders I make are as follows: 1. I order each of the plaintiffs receives a legacy of $40,000. 2. I order that the plaintiffs' costs on a party/party basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased. 3. I order the burden of the costs be charged rateably on the legacies given to Dennis Vannatter and Veronica Teng. 4. Interest is to run on the legacies at the rate provided under the Wills (Administration of Probate) Act 1898 after a period of one month from today's date on and from that date. 50 Before concluding this judgment it has been brought to my attention that Dennis Vannatter did in fact have some periods of employment in a chemical factory in Sydney and elsewhere. I take that into account and it does not affect the result of the case. I order the exhibits to be returned.