Andrew v Blair [2007] NSWSC 1003

New South Wales Supreme Court

CITATION : Andrew v Blair [2007] NSWSC 1003

HEARING DATE(S) : 29/8/07 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 29 August 2007

DECISION : Plaintiff to receive a specific legacy of testator's car and a pecuniary legacy of $66,000. Defendant's costs to be paid out of the estate.

CATCHWORDS : SUCCESSION [321]- Family provision application- Application by plaintiff adult son- Plaintiff lived with testator for 7 months shortly before his death- Plaintiff had little prior contact with testator- Will grants plaintiff $1,000- Estate valued at $204,000- Testator's provision for plaintiff inadequate in all the circumstances- Specific legacy of testator's car and pecuniary legacy of $66,000 appropriate with no order for plaintiff's costs.

LEGISLATION CITED : Civil Procedure Act 2005, s 60 Family Provision Act 1982

CASES CITED : Singer v Berghouse (1994) 181 CLR 201

PARTIES : James Richard Andrew (P) Stephen John Blair (D)

FILE NUMBER(S) : SC 3657/06

COUNSEL : L Ellison SC (P) R D Wilson (D)

SOLICITORS : Paton Hooke Lawyers (P) Eddelbuttel Law (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 29 August 2007

3657/06 – ANDREW v BLAIR JUDGMENT 1 HIS HONOUR: This is an application by a son under the Family Provision Act 1982. The deceased died on 26 April 2006, aged 76. He made his last will on 7 September 2005, probate of which was granted to the defendant on 26 May 2006. The deceased was not a rich man. His estate is only worth $182,202, plus an old car worth $20,000, and a mobility scooter worth $2,500. 2 By his will the testator gave the plaintiff $1,000 and left the balance of his estate to the defendant and the defendant's wife. 3 The deceased had been married twice. His second wife was the plaintiff's mother. Their relationship lasted four months in 1986. The deceased, according to the second wife, was not at all interested in either his wife or his baby son, though she does say that she called on the deceased before she left Australia, which she seemed to have done about 1989, when it was realised between them that things were too late to repair. Indeed, they were divorced on 11 August 1987. 4 There is only sketchy evidence as to the contact between the plaintiff and the deceased during the period 1989 to 2004. In his affidavit of 29 June 2006, in paragraph 20 the plaintiff said: "In the period I was living in the Philippines, my father and I kept in regular contact through letters and phone calls. The contact would vary, but in recent times I would speak to him at least once per month and would write him letters at least twice per month". 5 That paragraph was objected to by Mr Wilson, who appeared for the defendant. However, I admitted it, sketchy though it was. The question I think in Mr Wilson's mind, and certainly in mine, was that in cases where a person is seeking an order under this Act it is customary to put into evidence, as much as one can, the material from which the court can see that there has been a strong bond between the deceased and the child. Where a person has a solicitor acting for him, and he does not do so, the court is at liberty to be suspicious. When the court also sees that it was admitted in cross-examination that there were periods where there was no contact because the plaintiff did not know where his father was, because he had moved, and where one sees in the affidavit of the plaintiff that the deceased said that he could not afford phone calls, one is entitled to discount the material that the plaintiff puts forward as to the extent of the contact. 6 Mr Ellison SC for the plaintiff, boldly put that the court is not at liberty to do that and if there is not any direct challenge to the material then the court must "in fairness" accept it. With great respect, that does not appear to be the way in which I have read the role of trial judges. 7 The plaintiff came to Australia on 28 September 2004 and he went to live with the deceased in the Taree area. Mr Ellison boldly said that the testator enticed the plaintiff to come to Australia. I would, with respect, think that that is free advocate's licence. The plaintiff's situation was that he had had a very poor education in the Philippines. His mother had remarried and had moved to Germany. He was living with his grandmother. He felt he had very few hopes of employment in the Philippines, and one could well imagine that there was very little need for any enticement for him to come to Australia where he might well expect that his prospects would be a lot better. 8 The plaintiff came to live with the deceased but he only lived there for about seven months. He left to live in a group home in the Taree city area itself in April 2005. He says that he did that because it was too much to ride five kilometres in to Taree city and back again each day with what he had to carry. He says, however, that he visited the deceased at least twice a week for the period April 2005 until the deceased's death and he provided some services for the deceased. Mr Wilson cross-examined the plaintiff on his assertion that he had done as much as he purported. He said in paragraph 30 of his initial affidavit that he did yard work during the seven months that he lived with the testator. However, in cross-examination he admitted that there also was another friend who came in and mowed the lawns. 9 It is clear from the plaintiff's affidavit that one of the reasons he moved out of the testator's home was that he did not agree with the strict guidelines which the testator laid down about the persons with whom he could socialise. The plaintiff told the court in cross-examination that the father was quite insistent that he come home at a certain time and that there were some people with whom he worked of Filipino extraction that the father was very suspicious of. 10 It would seem that after the plaintiff moved out there was no contact for a few weeks and then afterwards the father rang the plaintiff and said he was sorry that the plaintiff had to move out and they kept in contact by telephone. The plaintiff would see the father on Tuesdays and Saturdays, as a general rule. When the plaintiff left, the father gave him $500. 11 The plaintiff said in his initial affidavit that he has been unemployed since he came to Australia and has been living on social services. However, in later affidavits and in cross-examination he said that despite general unemployment he had been working part-time at various stages as a trolley boy in shopping centres and other small jobs. However, he does not have a Higher School Certificate, though he has been doing an information technology course at a Taree school of further education. 12 The plaintiff has few assets. He is living in rental accommodation in Taree. He wants to move out of Taree and go preferably to Newcastle where he feels, first of all, that he can obtain his Higher School Certificate and then a university degree, and secondly, that he has a better chance of getting employment. 13 He tells us in his affidavit that this will cost quite a considerable amount of money and he suggests that the deceased should have fulfilled his moral duty to him by providing that sort of funding for him. He has virtually no assets and $20 in the bank. 14 The beneficiaries under the will were friends of the testator since 2004. They are not in substantial financial situations either. The executor is a bus driver whose usual run is from Taree to Newcastle and he works from twenty past six in the morning to ten to nine at night. He has accumulated few assets. It would appear that apart from the assets he has disclosed he also has superannuation of about $40,000. Mr Ellison strongly criticised him for not disclosing that and that criticism is justified, but even when one does take it into account, he has very few assets. Furthermore, it would appear that at the moment anyhow his wife's chances of good health and future employment are only marginal. 15 The estate, as I have said, consists of about $182,000 in cash. In accordance with the practice, the plaintiff's solicitor has told the court that his costs, including counsel's fees and disbursements, total $50,950. The defendant's costs, including counsel's fees, disbursements and GST, stand at $49,753. It was pointed out to the court that this included the costs of a failed mediation. However, when one looks at s 60 of the Civil Procedure Act 2005, which endeavours to provide that the costs are to be proportionate to the amount at stake, it is very hard for the court to justify any order that costs of $100,000 should be paid out of an estate of $182,000. That, of course, is easy to say. The practical problem is that it may well be that the executor is already duty bound in contract to pay his solicitor whatever the costs assessor considers to be the proper portion of $49,753, and the plaintiff is in the same position with his solicitor for approximately $51,000. 16 In cases such as this, one has got to say to plaintiffs, if there is a small estate and the case is dismissed, that you will end up paying the whole of the costs yourself, and to the defendants, if you don't accept reasonable offers of settlement early on then the costs are going to be so great that no one will win. 17 I now turn to the actual dispute between the parties. One has got to look at the way in which the court must approach these cases as laid down by the High Court in Singer v Berghouse (1994) 181 CLR 201. That involves a two stage process, the stages overlapping. The first stage is whether the deceased has left the applicant without proper support. The second is how much support the deceased should have provided. None of these cases can be looked on as a "standard case", nor is much to be gained by looking at other decisions. The question in every case is whether, in the circumstances of this particular testator and this particular plaintiff, the plaintiff has been left without adequate means of support in the light of the other considerations which properly would flow through a testator's mind. 18 The court in the past, however, has considered various cases where there has been very little more in the relationship between the plaintiff and the testator than biological paternity. The cases say that the fact of paternity must be taken into account, but it must be taken into account with all the other facts and circumstances. The question asked is: "Would the community think in all the circumstances that a wise and just testator would have made provision for his child and if so whether that provision would have been large, small, or total?" 19 The present case is one where, until the plaintiff was three, he had virtually no contact with the testator at all, save that he might have been taken to see him shortly before he left Australia. From 1989 to 2004 the evidence as to their contact is sketchy. All that really can be said is what I have set out in paragraph 20 of his affidavit. There was no financial dependence. It would seem that the mother had asked for some maintenance order at Manly court in the 1980s, but was unsuccessful. Certainly no money was paid. Indeed, there was no demand for money in that period. We then we have the plaintiff making contact with the father and the plaintiff coming to Australia in September 2004; living with the father for seven months; moving out after an argument about his life style; and then having intermittent contact for the last 14 months of the deceased's life. There was a small amount of financial provision but very little. 20 The plaintiff has no health problems as can be seen and has been mainly unemployed for the time he has been in Australia. He was left only $1,000 by the deceased. In those circumstances, has the plaintiff been left without proper and adequate means of support by the testator? It is very tempting to answer that question "No". The court must always bear in mind freedom of testation, as I have said previously, and whilst a person's "moral" duty to his spouse and his children are given paramount importance that does not mean, even with a person who has a very small estate, that where there is no close relationship between child and parent that the testator is shut out from recognising friendships that have been established which he feels he must assist, especially where the friends are relatively poor. 21 I think that, on balance, the first limb of Singer v Berghouse should be answered in favour of the plaintiff. I think that even though the plaintiff is an able-bodied son, without health problems, that the testator who had brought him to Australia should have thought that he would need to support the son to a greater extent than what he had done before his death, and after his death by the thousand dollars in his will. 22 However, on the second stage of Singer v Berghouse I do not consider that this is a case where the plaintiff should receive the whole of the estate. He is almost certainly in a better position in Australia to make a success of his life than he would have been in the Philippines. He is able-bodied and has received social security in the past without much assistance. He can, if he is in the right place, attain work and can almost certainly support himself, at least to some extent. His need is not for accommodation so much as to finance his education. The big problem is his bill of $50,950 to his solicitor, that was something he has contracted and will need to discharge. The plaintiff says that he has need of a car. The defendant says that there is a car worth $20,000 in the estate. The car he says needs repair. There has been obviously some animosity between the parties. The defendant would not let the plaintiff use the car in the meantime and Mr Ellison sought to make great capital of that but it is really, whilst a regrettable matter, a minor matter. 23 It is very awkward for the court to make a decision in these very small estates. However, I think that the way in which one has to approach the case is like this; that the estate consists of $182,200, plus the proceeds of the sale of the scooter, plus a car of $20,000; a total of approximately $204,000. The costs of the executor are close enough to $50,000, so that there is $154,000 to be provided to eligible beneficiaries. That would, divided in two, be $77,000 if I were to give the plaintiff half and the defendant and his wife half. 24 I think, in view of the large amount of costs which the plaintiff may have to bear, that that is probably just a little light, but it is generally close to what I believe the wise and just testator would have done. If the plaintiff were to have his costs covered and to have the car that would be $71,000. I think another $15,000 is really as much as the community would have expected the deceased to provide. 25 The proper way of putting the order is probably this: That in lieu of the provision made for him under the will of the late Richard Pentreath Andrew, the plaintiff is to receive a specific legacy of the testator's car and a pecuniary legacy of $66,000, there to be no order as to costs. The defendant's costs are to be paid out of the estate. 26 Both parties have now given me correspondence and a copy of an offer of compromise. They would have been better off had the matter been settled earlier, but in view of the fact that the plaintiff has no money to pay costs anyhow I do not consider it would be appropriate to make any variation in the order for costs I have already announced. The pieces of paper dealing with the offers can remain on the file.