Drevon v Windeyer [2006] NSWSC 1091

New South Wales Supreme Court

CITATION : Drevon v Windeyer [2006] NSWSC 1091

HEARING DATE(S) : 17/10/06

JUDGMENT DATE : 17 October 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 10/17/2006

CATCHWORDS : Family Provision. Application under Family Provision Act 1982 by son. Orders made. No matter of principle.

PARTIES : Yves Jean Louis Drevon v Robert Francis Windeyer

FILE NUMBER(S) : SC 2512/05

COUNSEL : Miss J Needham SC for plaintiff Mr C Harris SC for defendant

SOLICITORS : Teece Hodgson & Ward for plaintiff Atkinson Vinden Heazlewoods Lawyers for defendant

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

MACREADY AsJ

TUESDAY 17 OCTOBER 2006

2512/05 - YVES JEAN LOUIS DREVON -v- ROBERT FRANCIS WINDEYER ESTATE LATE PIERETTE PROBST

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Pierette Probst who died on 23 October 2003. She was survived by her son, the plaintiff, and a number of distant relatives. Her second husband predeceased her. The Will of the Deceased: 2 The last will was executed on 10 March 1988 and the plaintiff was appointed the sole executor. The defendant is a solicitor who has been appointed to represent the interests of the many beneficiaries under the will. 3 The will divides the estate into 200 parts and nominates 20 persons to receive various proportions of the divided estate. The plaintiff received 20 parts, in other words, 1/10 of the estate. The other beneficiaries include the two grandchildren of the deceased who have 22 parts each, 12 nieces and nephews of the deceased who have three parts each and relatives of the deceased's husband, Wilhelm Probst, who each take 20 parts of the estate of the deceased. The Estate: 4 The estate is reasonably substantial and has been reduced to cash and the current amount is $1,233,542.61. 5 The estate is, of course, subject to costs in the proceedings. The plaintiff's costs are estimated at between $38,000 and $45,000 and the defendants' costs at $75,000. Thus it could be the situation that the estate would be depleted by up to $120,000 leaving a balance in the estate of $1,113,542. This would put the plaintiff's share of the estate at $111,354. These figures would be subject to adjustment because there is one person, Gertrude Liebermann, who died before the deceased. Under clause 6 of the deceased's will there is a provision that children should take if a person predeceases but if a person predeceases without children then the surviving beneficiaries will take their share in the same proportions that they are entitled to share in the estate. Accordingly, there will be some slight increase because of the falling in of those 20 shares into the estate. 6 The plaintiff was born in France on 29 November 1935. His mother, the deceased, married her second husband, Wilhelm Probst, in 1950. They came to Australia in 1952, with the plaintiff remaining behind to finish his schooling. 7 In 1955 the plaintiff's father died and in 1959 the plaintiff came to Australia and commenced to live with his mother. He married in 1965 and along with his wife he moved back to France for two years after which they returned back to Australia. The plaintiff's son, David, was born in 1969 and his daughter in 1971. In 1980 the plaintiff and his family holidayed in France with the deceased for some three to four weeks. 8 The plaintiff has had a number of medical problems and he started being treated by the Park Family Practice at Bondi Junction in 1984. He was diagnosed with hypertension and hyperlipidaemia in 1984. Those conditions still continue and are treated with diet and tablets. 9 On 10 March 1988 the deceased made her will. 10 In 1990 the plaintiff was diagnosed with cancer in the right nasal tract and parts of the brain. He was operated on and his right eye was removed and thereafter he had radiation therapy for his cancer. This led to the removal of his upper teeth. 11 In 1992 the deceased started to suffer from Alzheimer's disease and in 1997 was moved into a nursing home. Shortly thereafter in 1998 the plaintiff suffered a severe stroke which has affected his ability to walk. 12 The deceased's husband died on 21 April 1999 and thereafter the wife of the plaintiff, Josette Drevon, was appointed the financial manager for the deceased. 13 In 2003 the plaintiff was diagnosed with an enlarged prostrate and in July of that year he was diagnosed with dental abscesses and all his lower teeth were removed. 14 The deceased died, as I mentioned, on 23 October 2003. In January 2004 the plaintiff and Josette moved from their home, where they had been living at Dover Heights for some 14 years, to Kensington in a town house in order to reduce their expenses. 15 Later in 2004 the plaintiff suffered a stroke which affects both sides of his body and caused further deterioration to his mobility. He continually suffers from transient ischaemic attacks and has to be treated for those from time to time. In 2004 he was diagnosed with prostrate cancer and he is treated with Zoladex implants every three months rather than having surgical intervention. 16 Proceedings were commenced within time and in due course Mr Windeyer was added as a defendant. In June last year the plaintiff was hospitalised due to urinary sepsis and subsequent unconsciousness. He also developed severe balanitis and on 1 November 2005 he had a dorsal preputial slit. The eligibility of the plaintiff: 17 The plaintiff is, obviously, an eligible person and is the only eligible person who survived the deceased. 18 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 says 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 called 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 circumstances: 19 I turn to the plaintiff's circumstances. He is 70 years of age and married with two children who, apparently, are not dependent upon him. His wife is 68 and does not work as she has to be his full-time carer. He and his wife have reasonably substantial assets mainly consisting of shares, an investment unit (owned by his wife and daughter), allocated pension funds and a residence, totalling some $2,656,581.48. They have liabilities of $205,000 (most of that being the mortgage on the investment unit). They have income of $78,166.35 per annum including the rental from the investment property, pensions and dividends. They receive no government pension because of their assets. Their expenses are estimated at $73,228. 20 As I mentioned, they recently sold their house in Dover Heights and downsized and are living in a town house so as to reduce their costs. The new house does need some repairs to make it liveable because he is now permanently wheelchair-bound. The present value of the unit is $1,150,000 and his wife's share in the investment unit is $215,000. 21 It seems plain on the evidence that the plaintiff and his family had a good relationship with the deceased and he was a dutiful son to his mother. The plaintiff's health is the critical matter and, obviously, he is unable to work and has been unable to do so since 1990. As I have said, he was diagnosed with hypertension and hyperlipidaemia in 1984 and he continues to suffer from those conditions. 22 I have already recounted the effects of the surgery as a result of his cancer in 1990 and the operation which followed and his radiotherapy. Not only does he no longer have a right eye but he has no hearing on his right side. The side effects of that are that he suffers stroke like attacks. He also has bleedings in his eye, his eye socket, and infections there and those infections have to be treated regularly. As I mentioned, he has mobility difficulties and he has difficulties with prostrate cancer. He also is presently suffering from asthma and sciatica. He has a substantial need for medications and part of his expenses include a sum for these expenses. 23 A doctors report in 2004, from a doctor who has treated him for some 10 years, concluded his discussion that his problems were these: "His daily living requirements is also a considerable task. He needs help in most of daily living activities and he needs transport to his medical practitioners frequently. His wife is providing the daily care at the moment. As Yves condition is gradually deteriorating, care management is more and more demanding and his wife will need the help of a professional carer in the future. Mr Drevon's medical expenses are no doubt very high. Due to complexity of his problems he requires often very specialised and expensive medical investigations and treatment and that will continue in to the future. He would also have considerable expenses to help with daily living e.g. house alterations for wheelchair access, bathroom alterations for disabled person, walking aids, just to name a few. Despite his increasingly frail health Mr Drevon could live for the next 10-20 years." 24 This report was updated in October this year and it was made plain that his wife will need help in the future for his care. 25 It is necessary to consider the situation and life of others having a claim on the bounty of the deceased. The defendants' solicitors over the last year or so have gone to extensive lengths to contact all the beneficiaries to see if they wish to put on evidence of their situation in life and their relationship with the deceased. They were unable to contact one person, Dominique Gandolfi, and the plaintiff believes that he is dead. A number of the beneficiaries responded saying that they did not wish to put on evidence. Some indicated that they wished to do so but did not follow it through. There were in the upshot only two beneficiaries who filed evidence. These were Myriam Cardi and Miriam Rayn. 26 In respect of Myriam Cardi, she was a niece of the deceased and was born in October 1927 in France. The plaintiff was quite close to Myriam because he was looked after by her mother when he was young, presumably when his parents came to Australia. Their age differences were some eight years. She gives evidence of continuing contact over the many years between herself and her aunt and uncle and refers to the visits to her when the deceased would travel to Europe. 27 She is the mother of three children, one of whom have died. She worked as a teacher until she was 71 when she had health problems which stopped her working. She lives in rented premises and has minimum resources. Physically she is not well. She has had two knee replacements and she is forced to stay at home. Her only leisure is television and her sight is substantially diminished. She has to be taken by ambulance if she has to go to a medical appointment. She wishes to receive a share in the estate. 28 Her expenses exceed her income by some €2600 per year. She also gives evidence of her medical problems which I have summarised and from which she suffered. Plainly, she is in difficult circumstances and any assistance that she could have from the estate of the deceased would be most welcome. 29 The other person who has put on evidence is Miriam Rayn and she is a daughter of Kurt Liebermann. She was born in 1947 and lives in Israel. She married and both herself and her husband are physically disabled. She has been assessed as having 100% permanent disability and she has not been employed since 1991 as a result of the illness that prevents her from carrying out physical work. 30 Her husband is 61 and receives an old-age pension. He has suffered from an amputated hand, his right leg is not functioning as a result of tuberculosis and he is disabled. 31 They own a unit which is worth about a bit under $AUD300,000 and have a modest income from pensions which they spend on their maintenance. Plainly, she also would benefit from any assistance that could be obtained from the estate. 32 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his education, maintenance and advancement in life. He gave evidence that he still needed to renovate the kitchen and install a ramp for wheelchair access to his unit, to which he has now moved. He also gave evidence that they will need a new car to accommodate a wheelchair at a cost of approximately $35,000 and that he would need a motorised wheelchair. 33 It is plain that he has become far more wheelchair-bound in recent years, particularly since his recent strokes and, obviously, a motorised wheelchair would help him be able to travel out of doors. He also needs a hoist in the bedroom and a hospital type bed as it is difficult for him to get in to bed without help. They need to update their computer and obtain various matters connected with that. None of those matters, in the way the evidence was admitted, was costed. However, in cross-examination it was conceded that the share that the plaintiff presently will receive will enable them to receive those needs. More importantly, in his most recent affidavit in paragraph 12 he set out the real needs which are the subject of this application. "My wife and I have not been able to go away on a holiday since 1998 when we went to France. My wife is my primary carer and she needs some regular respite. My wife will be 68 in November 2006 and we are concerned that as we both age my care needs will become greater and she will no longer be able to care for me alone and we will need to employ a carer. As we rely upon our capital to produce income we have not wanted to draw down on our capital. As my future health needs are uncertain I would like to have a capital sum that is not needed to produce an income and that I can access for unforeseen expenses and can be used to produce care for me." 34 It is the uncertain medical needs and the certainty that extra care will be needed to look after the plaintiff in the next 10-20 years that are critical in the needs of the plaintiff. The cost of the carer is $52 for two hours at present and if one assumes care for 12 hours a day this expense is $312 a day or $2184 per week and six hours a day $192 per week. 35 The plaintiff's wife has been the carer for him on a full-time basis for the last 13 years and given her age it will be increasingly more difficult for her to continue to do this. The plaintiff's life expectancy on the tables is 14 years at age 70 and the doctor opines that he may live for some 10-20 years. 36 The problem with the matter is that I have no evidence as to how much care will be needed and for what period and in those circumstances any assessment for some contingencies and his care will have to be very much under estimated. 37 It was the defendant's submission that all the needs can be met from the existing provision and the plaintiff has not satisfied the first limb of Singer v Berghouse. It was submitted that the absence of evidence precluded the finding of any other need. 38 The question of what is an appropriate provision with respect to a large estate is dealt with by Young J in Anasson v Phillips, 4 March 1988, where he had the following to say: "...with a very large estate... there is a great temptation on a court to be over generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one the court has a slightly different approach. The basic principles are the same, that is, the will can only be a affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is the large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed to, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412." 39 In this case, at the time the will was made, the plaintiff was not suffering from the enormous problems he is now facing. There is in this case little competition between beneficiaries. It is clear that professional care will be needed for a period which may possibly be 10 years. The daily level is not properly addressed in the evidence and nor is there any evidence addressing what is the sum which would be appropriate to provide funds into the future for the provision of that care if it was fully assessed by some expert. 40 The plaintiff's income just covers his expenses and his present assets are needed by him to generate that income. Any use of his capital will put him in a situation where his income will not be sufficient. He has already sensibly taken steps to downsize his home to improve his economic position. There are debts which are due to the daughter of the deceased of $30,000. There are also the borrowed funds on the investment property. I think I will accept that there is the need to repay the daughter but I think the other one, the need to repay the investment unit, is not so pressing. It is merely a matter of financing the investment unit. 41 In my view, he has been left without adequate and proper provision for his maintenance. Assessing the level of care as a conservative figure and allowing for contingencies and the need to repay the daughter, I am of the view that an additional provision of $350,000 is appropriate. 42 The burden of such legacy should I think be borne, and I will hear submissions on this, by the share of the beneficiaries who have not put on any evidence and that includes the grandchildren and it should be borne by them rateably. It should not be borne by the share passing to the two beneficiaries who have put on evidence. I think it might be convenient just to bring in some short minutes. Obviously, the costs come out of the estate on the usual basis. 43 Short minutes to be brought to court tomorrow morning. **********