New South Wales Supreme Court CITATION : Taylor v Bartlett [2005] NSWSC 980 HEARING DATE(S) : 26/09/05 JUDGMENT DATE : 26 September 2005 JURISDICTION : Equity Division JUDGMENT OF : Associate Justice Macready at 1 DECISION : Paragraphs 30 - 33 CATCHWORDS : Family Provision. Application by daughter, the only eligible person, who was omitted from the will. Order for provision. No matter of principle. PARTIES : Sandra June Taylor v Doreen Ivy Bartlett and Anor (Estate of Late Edna McDonald) FILE NUMBER(S) : SC 2640 of 2004 Mr R. Brender for plaintiff COUNSEL : Mr C. Simpson for defendants Campbell Paton & Taylor for plaintiff SOLICITORS : Foott, Law & Co for defendants LOWER COURT JURISDICTION : - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE MACREADY MONDAY 26 SEPTEMBER 2005 NO2640/04 - SANDRA JUNE TAYLOR v DOREEN IVY BARTLETT & ANOR JUDGMENT: 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Edna Dardanellers McDonald, who died on 7 October 2003. She was survived by her daughter, the plaintiff. The deceased's first husband and her second husband pre-deceased her. THE LAST WILL OF THE DECEASED 2 The deceased made her will on 16 December 1996. She left a legacy of $5,000 to a friend, Beryl Abbott, and she left the residue to the defendants equally. Doreen Bartlett was the deceased's sister in law and Alan Shore was a friend for many years of the deceased and her husband. 3 The plaintiff was omitted from the will. In her will the deceased said that she had not made provision in her will for her daughter because she had made adequate provision in her lifetime. What was the "provision" was not expanded upon, and I will come to that later. THE ESTATE OF THE DECEASED 4 The estate has been reduced to cash and amounts to $243,066.31. The plaintiff's costs are estimated at $30,000, the defendant's at $35,000, leaving a net cash balance of $178,066. There is some jewellery which is valued at $2,110. THE FAMILY HISTORY 5 The plaintiff's parents were apparently married on 17 December 1939 and the plaintiff was born on 2 April 1944. The plaintiff's parents separated in the late forties, when the plaintiff was four years old. In March 1951 the plaintiff contracted polio and that treatment continued up until 1962. Effectively for some five months at the commencement of the illness the plaintiff was confined to full time rest at home. The deceased remarried on 25 September 1952 to Mr Alan McDonald. There were no children of this second marriage. 6 By 1961 the plaintiff was completing her schooling, was offered several scholarships and accepted one to attend Sydney Teachers College. She stayed at home for another two years while she attended college and then moved to her first teaching position at Molong in the State of New South Wales. She met her husband, also a teacher, and they married in 1966, in which year she transferred to live in Orange. 7 At that stage the deceased and Mr McDonald sold their property at Curl Curl and moved to Grafton. 8 In 1968 the plaintiff and her husband purchased their home, which was four acres on the outskirts of Orange. The plaintiff has two children, one born in 1971 and one in 1973. At this stage the deceased and Mr McDonald came to Orange and the plaintiff and her husband mortgaged a property to lend $5,000 to the deceased to complete the purchase of the deceased's property at that stage. They remained there until 1976, when they sold the property and moved back to Grafton. The loan was repaid at that stage. 9 The evidence records that in the mid eighties the plaintiff travelled to stay with her mother after a skin cancer operation. It was in 1989 that eventually the plaintiff was fortunate enough to have contact with her father. She had had no contact with him since she was four years of age and her mother had discouraged contract by refusing to disclose her father's name. 10 In 1990 Mr McDonald, the deceased's second husband, died and the deceased simply told the plaintiff by sending her a note in the mail sometime after his death. In 1992 the plaintiff's father died and she received some $20,000 from him. I will come back to the circumstances of the contact between the plaintiff and the deceased. The last contact was in 1995. 11 In 1996 the plaintiff received disabilities as a result of an assault which she occasioned in her employment as a school teacher. 12 The deceased made her last will, as I have said, on 16 December 1996. She died on 7 October 2003. 13 The legatee, Beryl Abbott, who received a legacy of $5,000 died on 8 May 2004. ELIGIBILITY 14 Plainly the plaintiff is an eligible person, being a daughter of the deceased. In fact, she is the only eligible person following the death of the deceased. 15 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 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." THE PLAINTIFF'S SITUATION IN LIFE 16 The plaintiff is sixty one years of age, married with two children. Her children do not live at home and thus are only intermittently dependent on her. The plaintiff and her husband were teachers but have ceased work. They jointly own their home situated on the outskirts of Orange, which is valued between $330,000 and $350,000. They have a 2001 model car worth some $42,000, a second car worth $1,500, a caravan worth $20,000 a boat worth $1,900 and shares of some $68,000. The plaintiff's husband has an interest in his mother's estate who died recently. He will shortly receive in the order of $40,000. In due course when his father dies he is likely to receive approximately a further $80,000. No doubt it will be some years when that occurs but he is assured that that will happen. 17 The plaintiff's husband has some minor amounts of superannuation which are not of concern but the plaintiff's superannuation is quite substantial. She has, as at June 2005, the sum of $384,079. She could access this to the extent of $94,185 at the moment if she wished to do so. Her current plans are to invest that in about eighteen months time, when she is aged sixty three, into an annuity to supplement their income. At the moment she has a disability income of $26 per week and her husband receives an income of $485 per week. He did until recently have an income of $261 a week for casual work and, although that income will be available to him in the future, at the moment it is a little uncertain, as he has to grapple with looking after his father rather than returning to part time work. In essence, at the moment they have an income of about $26,500 per annum, but they also have the income from the shares which one would think would be another $5,000 or $6,000. In due course they will have quite a substantial income from the annuity which will be purchased with the superannuation. There is no evidence as to what that future income stream is likely to be. 18 In fairness to the plaintiff she has not put her case for provision on a need to provide additional income in the sense of letting the Court have accurate estimates of shortfalls and future requirements and what sum would be an appropriate lump sum to make that provision. It is plain that her general living expenses are in the order of $40,675 per annum. They enjoy travelling and those expenses, which I would not think excessive, amount to $12,000 per annum and they will probably incur some expenses of up to $5,000 for other trips to visit friends. Perhaps their annual expenses, leaving aside capital provisions, are in the order of $55,000. There are a number of things which they would like to do which they have thought about, and I will come back to those. 19 The plaintiff apparently is in good health. She did suffer the assault in 1996 and cannot now work. Her husband has had prostate cancer, but that presently is in remission and well controlled. 20 An important part of this case concerns the relationship with the deceased. As is apparent, the plaintiff's father left home when she was four. Naturally she did not recall much of that time. Apparently the deceased must have turned the plaintiff against her father to the extent that it was not until late in her life that she managed, with the help of the Salvation Army, to re-establish contact with her father. It also seems that the deceased was somewhat cruel to the plaintiff. She recounted a number of incidents of cruelty but, particularly, once she started to get to the age of ten, when her mother used to burn her with cigarettes. Plainly, when the plaintiff finished her teacher training in Sydney for two years she was pleased to take up an appointment to go to Molong as she wanted to get away from her mother. However, that did not distract her from the fact that she was her mother's daughter, because she still continued to keep contact with her mother and keep writing to her. 21 I have already recounted the time when she saw her mother when she had cancer, and visits they used to make, although they were rebuffed to quite an extent by the deceased. 22 There is evidence, which is unchallenged, that the plaintiff, when she was away from her mother, wrote to her continually. The attitude of the deceased is quite hard to understand and there has been very little other evidence to try and ascertain why it is that the deceased seems to have turned against her daughter. The plaintiff gives no evidence of that. She appeared to me to be a truthful witness. There was also the evidence from the plaintiff's husband, who had a good relationship with the deceased and continued to visit and keep in contact, even if the plaintiff's approaches to the deceased were rebuffed. The only clue in the evidence seems to be that perhaps the deceased felt some bitterness about the extent to which she had to spend time looking after the plaintiff when she suffered from polio. It is perfectly plain that the deceased's comments in her will are wrong. Indeed, it has been the plaintiff and her husband who have advanced money to the deceased and Mr McDonald when they moved home to Orange in 1973. 23 It seems to me that, notwithstanding what were numerous rebuffs to the plaintiff from the deceased, the plaintiff continually tried to be a dutiful daughter, to keep contact until 1995, when, having regard to the history of the rebuffs, she naturally, in my view, gave up and ceased contact. I am not critical of the plaintiff for so doing. She tried hard for a long time. 24 It is also necessary to consider the situation in life of others who have a claim on the bounty of the deceased. In this case these are beneficiaries under the will. As I have mentioned, the legatee for $5,000 Beryl Abbott, died on 8 May 2004 and her daughter takes her estate. Her daughter gave some details of her financial situation. It is not possible to know what is the actual situation after the mother's death because the extent of the mother's estate is not developed in that evidence. Plainly, she is working and married with a family but precisely what her asset situation is the Court does not know after her mother's death. However, in the context of this estate and the amount of the legacy it is not of great relevance. MRS BARTLETT 25 Mrs Bartlett is a widow aged seventy eight with no dependents. She has a few personal possessions but no assets of any substance. She survives on a war widow's pension of $648.70 per fortnight. She has to pay out of that rent of $142 per fortnight. She still drives and wants to replace her car in due course. She was, of course, the deceased's sister in law and has had contact with the deceased for a long time over the marriage of the deceased and her brother. She seems to have had constant contact by phone every few weeks or so with the deceased. MR ALAN SHORE 26 Mr Shore is eighty seven, married, and has no dependents. Unfortunately his wife has had to go into a nursing home so he is living at home by himself in their home, which they have had for many years. He has been married for some forty eight years and does not have any children. He and his wife own their home at Grafton valued at between $175,000 to $200,000, which is not subject to mortgage. He has investments of some $107,000 and his wife has investments of $65,000. He has a pension of $461 per fortnight, as does his wife, and he says his health is not bad for an eighty seven year old man. He intends to live there and make do on the pension until he has to move elsewhere. He has a car not worth much. It is plain that he also had a long relationship, particularly with the deceased's husband. They were friends who got to know each other in their walking and obviously spent a fair bit of time together. Because he became a family friend he helped when Mr McDonald was old and in hospital. He used to go to the hospital and shave him. He seems to be the person, after the deceased went into a nursing home, being on the spot (and this is probably how it happened)who took an interest in her and would go to the nursing home to look after her needs and see what she wanted. 27 It is, of course, necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. 28 As is usual in these matters, attention is not always given to these in the initial affidavits but they invariably are in the affidavits served shortly before the hearing. As is plain from the earlier affidavits, there needs to be work done on the house to fix it up where it is leaking. It was estimated at $20,000 originally and in the further evidence there is a quote for $17,237 to actually replace the roof. This seems to be not the only cost and there is evidence of damage to ceilings inside the house. So there is obviously further work that has to be done there. There are other internal repairs which would be necessary. Evidence was also given of the need to replace twenty year old furniture at a cost of some $20,000 to $30,000 and a need to up date a 1975 television set and purchase a DVD recorder. Although quotes for some $10,000 to $15,000 were suggested, obviously a far lesser sum would produce an adequate result. Other equipment in the home, such as white goods, need to be attended to in the sum of $5,000 to $7,000 and the plaintiff and her husband probably at this stage in their lives would need a ride on mower to keep control of their property. That would cost $5,000 to $7,500. Their present car is a 2001 model worth $42,000 and a new car which they obviously would like to purchase, which I think is probably a necessity sometime in the near future, would be about $67,000. No doubt they would have a substantial trade-in on the existing car. 29 I mention that the plaintiff and her husband, not unnaturally and probably not extravagantly for persons of their age, wish to be able to move around Australia and explore Australia as part of what they describe as the grey power of Australia. If they had the mother's estate and some other source, they might buy a mobile home but that is plainly beyond their reach. So another $50,000 to up-grade their caravan would probably be appropriate. It is these funds and costs for which they need to provide. Against this there is the monies from the plaintiff's husband's mother's estate. If anything is really urgent there are some super funds that could be used, although no doubt, sensibly, that will be used to provide income in a year or two's time. Naturally, of course, I think the deceased's duty to the daughter was the paramount duty. However, the friends and the sister-in-law did, in my view, extend some help and assistance to the deceased during the latter years. Unfortunately she needed this assistance and I think that can be accommodated within the size of the estate. 30 Accordingly, having regard to the matters to which I have referred and to the fact that the estate is probably in the order of $178,000 the order that I make is that the plaintiff receive a legacy out of the estate of the deceased in the sum of $120,000. 31 There are items of jewellery. That has some significance to the plaintiff and as I have not heard to the contrary I also order that the plaintiff receive a legacy of the deceased's jewellery. 32 I order that the plaintiff's costs on a party and party basis and the defendants' on an indemnity basis be paid or retained out of the estate of the deceased. Interest is to run on the legacy at the rate provided for under the Wills Probate Administration Act 1898 if it is not paid within one month from today's date and on and from that date. 33 The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.