Woodward v Whitelaw [2004] NSWSC 802

New South Wales Supreme Court

CITATION : Woodward v Whitelaw [2004] NSWSC 802 HEARING DATE(S) : 30 August 2004 JUDGMENT DATE : 31 August 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 48

CATCHWORDS : Family Provision - Claim by a step-grandchild. Order for small legacy. - No matter of principle. PARTIES : Shirley Marie Woodward v Leslie Whitelaw and Desmond Lewis FILE NUMBER(S) : SC 2507 of 2003 COUNSEL : Mr R.D. Marshall for plaintiff Mr D. Liebhold for defendants SOLICITORS : Nash Allen Williams & Wooton for plaintiff Shane Boesen for defendants

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

MASTER MACREADY

TUESDAY 31 AUGUST 2004

2507/03 - SHIRLEY MARIE WOODWARD v LESLIE WHITELAW - IN THE ESTATE OF THE LATE JAMES SYKES & ANOR

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late James Sykes who died on 28 October 2001. He was survived by the plaintiff who suggests she was a granddaughter of the deceased. In fact it appears she is a step-granddaughter. 2 The deceased made his last will on 8 September 1998. He appointed the defendants as executors and he left to the first defendant, Leslie Whitelaw, the home and contents. He left the residue of the estate between Alfred Jones and Desmond Lewis and Leslie Whitelaw. 3 At the date of death the estate consisted of cash in the sum of about $47,000 and the deceased's house worth about $146,000. All those assets have been realised and they have been distributed. Leslie Whitelaw received $160,362.99; Desmond Lewis $14,362.99; Alfred Jones $14,362.89. There have been costs incurred in the estate, the plaintiff's in the sum of $21,800 and the defendant's in the sum of $34,531.50. 4 It is necessary to deal with a little of the history of the matter. The deceased, Thomas Sykes, was born on 20 July 1916. The plaintiff's father, Kenneth Stanley Woodword, was born in 1927. In 1947 James Sykes, the deceased, married Sylvia Sykes. The plaintiff herself was born on 27 June 1958 and she had two siblings, a sister Margaret Jean Woodword, born in 1949, and a brother, Kenneth George Woodword, born in 1951. They are both now deceased. 5 Between 1964 and 1967 the plaintiff was often in the care of the deceased and his wife, as the plaintiff's parents worked as a station hand and a cook. They were thus often away in the country for long periods of time. 6 In this first period when the plaintiff was living with the deceased they lived at Glebe. The plaintiff can remember this, although she was only very young at the time, because she remembers Glebe Primary as her first school. 7 The plaintiff's parents separated in 1967 and at that time the plaintiff was living with the deceased and his wife and also her parents near Jerilderie in south-west New South Wales. 8 James Sykes, the deceased, who also followed the occupation of a station hand, retired in 1968 and he and his wife and the plaintiff moved back to live in Sydney. The plaintiff remembers attending Stanmore Primary School until 1970 when she then attended Petersham High School. She had been living with the deceased and his wife in that period. 9 She eventually finished high school and between 1974 and 1977 started work and worked at a number of vocations. She was either living with the deceased and his wife or with the sister Margaret or with other friends. 10 She married in 1977 at nineteen years of age and in 1978 the deceased and his wife came to live with the plaintiff for about a year. Thereafter they lived in several locations, ultimately on the Central Coast. 11 The plaintiff's father died in 1986 and apparently was destitute. For the period from 1984 when the deceased moved to the Central Coast, the plaintiff used to visit the deceased and his wife on a regular basis. She would help the deceased and his wife around the house on those visits. 12 The deceased's wife died in 1992. On 9 July 1992 he made a will which named the plaintiff as his sole executrix and beneficiary. After a period the plaintiff continued to visit the deceased on the Central Coast until 1998. On 15 November that year there was a confrontation between the first defendant and the plaintiff at the deceased's home and from then on the first defendant refused contact between the deceased and the plaintiff, although the deceased was visited on four occasions by the plaintiff when the first defendant was not home. 13 In 1998 the plaintiff made an application to the Guardianship Board, which was rejected. The deceased was placed in a nursing home in 2001 and died on 28 October 2001. 14 Grant of probate was made on 15 December 2001 and immediately thereafter the cash was distributed in the estate; the house was sold by May 2002 and the proceeds of sale were distributed to the first defendant. 15 It was not until January 2003 that the plaintiff discovered, through her sister's children, that the deceased had died. She commenced proceedings on 24 April 2003, just within time. Eligibility. 16 It is clear the plaintiff is not a grandchild of the deceased. She would, therefore, be an eligible person as she was sometime a member of the deceased's household and at some time dependent upon him. The plaintiff gave evidence of early childhood and living in the care of the deceased and his wife. The periods were substantial, particularly after the plaintiff's parents separated. Clearly she was a member of the household. Given her age at the time she would have also been dependent. 17 The plaintiff called no evidence from her mother, who is still alive. She would have been in a position to have given evidence corroborating the plaintiff's story. In these circumstances, I should assume that the mother's evidence would not assist the plaintiff's case and I should take that into account in deciding whether or not to accept the plaintiff. 18 The plaintiff's account is quite believable and it led to a long association between her and the deceased. She also produced family photographs which add substance to her story as they depict her in family situations with the deceased. 19 In the circumstances, I accept the plaintiff's evidence and I am satisfied she is an eligible person. 20 However, it is necessary under s 9(1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. T his means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and y et go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898 s 61B), whereas the classes affected by s 9(1) (former spouses and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which, when added to facts which render the applicant an 'eligible person", give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but "refuse to proceed with the determination of the application.'" 21 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, on some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 22 These principles have been applied at first instance for many years. there has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 23 The care of the plaintiff by the deceased during her childhood was for the greater part of her childhood. The continued contact thereafter was a continued family contact. This was recognised by the deceased himself when he made his 1992 will in favour of the plaintiff. In those circumstances, I am satisfied on the traditional test that factors warranting the making of the application exist. 24 I will move to consider the application to see if there are prospects of success. 25 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 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." 26 I turn to consider the situation of the plaintiff. She is forty-four years of age and lives with her partner in a de facto relationship. Her son Brian lives at home and she supports him, although he has recently started work and earns $325 per week. Apparently he pays no board as he is saving for a car. 27 The plaintiff works as a recreational activities officer at Marylands Nursing Home. She earns $1300 gross per fortnight and her partner earns $2400 net per month after tax. This puts their weekly combined income at about $1550 per week. Their expenses per week are approximately $600 together with the food for three people in the household. They are thus in a comfortable position so far as income is concerned. 28 They own a home worth $360,000 at Doonside on which there is a mortgage of $202,000. They have two cars and furniture. The plaintiff also has a personal loan of $20,000 which enabled her to buy the car. It is clear the plaintiff did not contribute to the estate of the deceased and it is necessary to consider the terms of the relationship between the plaintiff and the deceased. 29 It is certainly clear on the evidence it was good up until after the deceased's wife died in 1992. The provisions of his will confirm this. 30 There is evidence the second defendant, also a cleaner employed by the deceased, as to complaints made by the deceased in the 1990s about the plaintiff. Apparently she asked the deceased for money from time to time. She agrees she did do that on occasions. 31 I accept the plaintiff's evidence that she continued to visit the deceased up until 1998 on a weekly or fortnightly basis. By this time the first defendant, a neighbour who had known the deceased since 1996, had moved into the deceased's home and was his paid carer. 32 On 15 November 1998 there was an incident which followed a visit to the deceased by the plaintiff and her husband. The first defendant asked the deceased if he wished to see the plaintiff and he said no. When the plaintiff and her husband returned they were refused access but the precise reason for this does not appear in the evidence. 33 However, it is plain that thereafter the first defendant thwarted any access to the deceased by the plaintiff. He said he did this at the request of the deceased. 34 The evidence as to precisely what was the incident is in a very unsatisfactory state and, as a result of that, I do not conclude that the breach was as a result of some wrongdoing by the plaintiff to the deceased. 35 There seems to have been suspicion on the part of both the plaintiff and the defendant in respect of other motives. The plaintiff plainly tried to heal the breach by visiting the deceased thereafter but was prevented from doing so by the first defendant. 36 In those circumstances, I do not think that the incidents over the last few years of the deceased's life detract that there was in fact a good relationship for many, many years between the deceased and the plaintiff. 37 I turn to consider the situation of the defendant Leslie Whitelaw. He is seventy-five years of age, married but lives apart from his wife. He has no dependants. He lives on a pension and owns, with his wife, his home at 98 Kallaroo Road, San Remo. He retains $70,000 in a term deposit with the Commonwealth Bank and that amount comes from the distribution he received in the estate. 38 He had been a close friend of the deceased, particularly after the deceased's wife died in 1992 and obviously, as neighbours, the deceased would talk with him on many occasions. He was the carer of the deceased in the last three years of the deceased's life. He was paid to do this and was obviously of great assistance to the deceased, as the deceased had a type of colostomy bag which needed daily attention. Clearly the first defendant has not contributed to the estate of the deceased. 39 It is necessary to see how the plaintiff says she has been left without any adequate and proper provision for her maintenance, education and advancement in life. In her affidavit she spoke of giving a part of any amount which she might be awarded to the children of her sister. Clearly, in my task in considering her application, I have to consider her needs only. She did not make a claim on behalf of her nieces and they are not eligible persons. It is only the plaintiff's needs that the Court can recognise. Accordingly, I will proceed to consider what the plaintiff's needs are. 40 The plaintiff says that she wants to reduce her mortgage. There is still a substantial mortgage on her home and she has a $20,000 personal loan. Certainly some provision would assist, particularly if she can pay off her personal loan which has high weekly repayments. 41 Having regard to the relationship between the plaintiff and the deceased, I think it is appropriate that she receive a small legacy to help her with those debts. As the estate has been distributed, it will be necessary to designate some part of the defendant's property as notional estate and considering this the Court has to consider the matters referred to in s 27 of the Act. Section 27 is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: