Britton v Small [2006] NSWSC 419

New South Wales Supreme Court

CITATION : Britton v Small [2006] NSWSC 419

HEARING DATE(S) : 4 May 2006 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 05/04/2006

DECISION : Plaintiff receives a legacy of $110,000 in lieu of the provision made for him under the will of the late Wilfred Franklin Adams.

CATCHWORDS : SUCCESSION [309]- Family Provision Act- Whether plaintiff is an eligible person- Whether relationship with testator was landlord/boarder or carer/dependant- Whether plaintiff left with insufficient provision- Rebellious behaviour- Other beneficiaries include two of testator's foster daughters who have needs- Plaintiff suffers from past substance abuse- Protective Commissioner manages plaintiff's financial affairs- Will's provision found to be inadequate.

LEGISLATION CITED : Family Provision Act 1982

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

PARTIES : Jesse Britton by his Tutor The Protective Commissioner of New South Wales (P) Michael Owen Small (D)

FILE NUMBER(S) : SC 6418/04

COUNSEL : L Ellison SC (P) E Cohen (D)

SOLICITORS : E H Tebbutt & Sons (P) Neil J O'Connor & Associates (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 4 May 2006

6418/04 – BRITTON BY HIS TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v SMALL

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 by a gentleman who resided with the testator, Wilfred Franklin Adams, for various periods between 1994 and 2003. The late Mr Adams died on 31 May 2003, having made his last will on 21 September 1999, probate of which was granted to the defendant, one of the executors named therein, the other having renounced his position on 13 August 2003. 2 Mr Adams has left an estate which appears to consist of his home at No 9 The Anchorage, Tweed Heads, valued at approximately $600,000 plus about $60,000 in cash. The will is unusual, partly because of the group of people that Mr Adams gathered around him. Those people included the plaintiff and two sisters, Alicia and Megan McKnight, and also a young man Cory Andrew Fisher. 3 I will come back to the relationships of those people with Mr Adams in due course, but for the moment I will focus on the will. Essentially the will gave two tranches of legacies to Alicia, Megan and Cory. The first tranche was $20,000 each when they attained 18, and the second when they attain 25. He also gave a legacy of $14,000 to the plaintiff which was not to be paid in full until the plaintiff attained 31. The plaintiff, having been born in March 1973, is now 33, so that that condition has been fulfilled. The legacies thus total $134,000. There is no fund to pay them, but as I understand it, it is now common ground that the house will need to be sold in order to pay the expenses and the will means that the legacies will be paid out of the proceeds. 4 The will gave the house to Alicia and Megan in equal shares and then provided that the residue would go three eighths each to Megan and Alicia, and two eighths to Cory. However, this is academic as there is no residue. 5 Accordingly, assuming that the will is construed in the way that is now common ground, and assuming that the house can be sold for $600,000, and assuming the costs of sale are no more than $10,000, there is a distributable estate of somewhere about $456,000, after the legacies and expenses have been paid. Adding back in the plaintiff's legacy of $14,000 produces a figure of $470,000 for the purposes of this case. 6 The plaintiff was living a dissolute life in the Pyrmont area when he was approached by Mr Adams and invited to live with Mr Adams at his Tweed Heads home. The plaintiff accepted that invitation, though the initial invitation was made in 1991 and he did not move to Tweed Heads until 1994. As I have said, the plaintiff lived in the Tweed Heads home with Mr Adams from then until 2003 but with very significant absences. The most significant absence is or for most of the period 2000 to 2002. However, the plaintiff suffers from diseases, including a bipolar disorder. He has a past history of substance abuse. The evidence, however, is that he appears to have overcome those problems and hopefully might be able to live a relatively normal life in future years. 7 In the year 2000 the Guardianship Tribunal sat at Tweed Heads and heard evidence from the plaintiff, Mr Adams, and a social worker, and as a result of that hearing, the Tribunal was satisfied that the plaintiff was not capable of managing his affairs and those affairs were committed to the Protective Commissioner. The case manager for the Northern Rivers Area Health Service gave evidence to the Tribunal that he had been the plaintiff's case manager for two years, that the plaintiff was on a disability support pension and that he was unable to adequately provide for his basic needs without the care and attention of his carer, Mr Wilfred Adams. He said that both Mr Adams and himself were concerned that the plaintiff was vulnerable to exploitation and that when the plaintiff went to the bank his "so called friends and drug users often ambush him". These views were accepted by the Tribunal. 8 In 2002 by telephone hook-up there was another hearing before the Guardianship Tribunal. Again Mr Adams gave evidence. He was described by the Tribunal as the foster father of the plaintiff and he gave evidence that he had collected the plaintiff when the plaintiff was discharged from hospital in 2002 and he was concerned that the plaintiff had a longstanding pattern of disappearing on the day he received his pension and returning with no money and that he might still be affected by drugs. He gave evidence that he was hopeful that the plaintiff might be employed doing garden maintenance work and that he had provided the plaintiff with a mobile phone and was responsible for the payment and that the plaintiff was paying him $24 a month. The Tribunal confirmed the financial management order. 9 Alicia McKnight gives evidence that her father was the foster child of Mr Adams and grew up with him. Her father died in 1987. Her mother went to gaol in 1991 and in 1992 Mr Adams took the McKnight sisters to live with him at Tweed Heads with the appropriate authority from the Department of Community Services and they have lived with him ever since, until he died. He treated them as his children and they had a very happy relationship. Mr Adams was like a father to them and cared for both the sisters and they felt like they were his family and there is no wonder why he made the provision for them that he did. Neither lady is in a particularly strong financial position. They would like to continue to live in the house at Tweed Heads but as I have said, everyone now realises that that is not possible. Cory is their half brother and he too was assisted by Mr Adams. 10 It is in this factual background that I must approach the question as to whether the plaintiff is entitled to any further provision out of Mr Adams' estate. Three questions are posed for the Court, which I will deal with in turn, namely (1) whether the plaintiff is an eligible person; (2) the first limb of Singer v Berghouse (1994) 181 CLR 201 (that is, whether the testator made adequate or proper provision for the plaintiff); and (3) whether, if question (2) is answered in favour of the plaintiff, what amount should have been provided for him. 11 Section 6(1) of the Family Provision Act 1982 defines eligible person in (a)(ii) as "a person with whom the deceased person was living in a domestic relationship at the time of the deceased person's death", and in (d) as: "A person - (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and (ii) who ... was, at that particular time or at any other time, a member of a household of which the deceased person was a member." 12 Ms Cohen, who appeared for the executor, thought that when one looked at the evidence one must draw the conclusion that the plaintiff was no more than a boarder. She says that there are various factors in the evidence which demonstrate this, including: