Baker v Colyer [2007] NSWSC 1225

New South Wales Supreme Court

CITATION : Baker v Colyer [2007] NSWSC 1225

HEARING DATE(S) : 31/10/2007

JUDGMENT DATE : 31 October 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 31 October 2007

CATCHWORDS : Family Provision. Claim by daughter. No matter of principle.

PARTIES : Glenic Almeda Baker v Christopher Colyer

FILE NUMBER(S) : SC 4395 of 2006

COUNSEL : Mr M Condon for plaintiff Mr B Sharpe for defendant

SOLICITORS : Turnbull Hill for plaintiff Fowler Predny for defendant

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

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 31 OCTOBER 2007

4395/2006 GLENICE ALMEDA BAKER v CHRISTOPHER COLYER

JUDGMENT 1 HIS HONOUR: This the hearing of an application under the Family Provision Act in respect of the estate of the late Jane Robinson who died on 6 April 2005 aged 77 years. The deceased was survived by her three children. She had two children by her first marriage and they are the plaintiff and defendant in these proceedings. She was divorced from her first husband and remarried and had a second son named Robbie Murray Robinson born in 1975. The will of the deceased 2 The deceased made her last will on 7 May 1991 and under that will she appointed her son Christopher, the defendant, and Robbie Robinson, as executors. Robbie Robinson could not be located for the purposes of taking out Probate and a grant was made to the defendant. 3 Under that will she provided that a half share go to her son Robbie Robinson, a quarter to her daughter Glenice Almeda Baker and a quarter to her son Christopher Colyer. The estate of the deceased 4 By the time of the date of the death of the deceased her property had been sold and there was an amount of some $200,000 or slightly in excess of that amount held by the Protective Commissioner, which was looking after the estate of the deceased. That amount was received by the defendant and a distribution of a quarter of that amount was made by to the plaintiff and defendant in accordance with the terms of the will. The solicitors now hold the balance of $119,000 in their trust account which would be the amount payable to the son Robbie Robinson under the terms of the will. 5 There have been costs incurred in this matter both in respect of the hearing of the present application before me and in respect of the summons seeking judicial advice which was dealt with last week. The costs of the defendant total $28,137 bring the estate down to $90,663. The plaintiff's costs are in the order of $30,000, also further reducing the estate. Family History 6 The deceased son, the defendant, was born on 29 June 1947 and the plaintiff, the daughter, was born on 30 January 1950. The deceased and her first husband were divorced in 1963. Having grown up the plaintiff left home in 1967 and moved to set up her own life. 7 In about 1971 the deceased remarried one Murray Robinson and the son Robbie Robinson was born on 6 January 1972. The second husband, Murray Robinson, died in 1990. 8 The deceased made her last will in 1991 and made the provisions to which I have referred. At that stage the son Robbie was 16 and the difficulties which the deceased suffered at his hands probably had not started to occur. 9 In 1995 the plaintiff and the defendant's father died. It was at about this time that the son Robbie also left home. In 1999 the Protective Commissioner was appointed as her financial manager and, as I have mentioned, she died on 6 April 2005. Probate was granted on 27 July that year. 10 The plaintiff on 23 May 2006 had a right knee replacement which was one of the many medical difficulties she has had to suffer and still continues to suffer. Eligibility 11 The plaintiff is an eligible person being a daughter of the deceased. 12 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 from arrangements to pay creditors". 13 I turn to consider the situation in life of the plaintiff. The plaintiff is 57 years of age and suffers from a number of medical problems. These include degenerative changes in her tibio- femoral joints with spiking of the tibial spines and virtual complete obliteration of the medial joint compartment; degenerative changes in both patello-femoral joints, she is in need for further knee reconstruction, she has blood pressure problems and arthritis in many parts of her body. She is married and lives with her husband who also has injuries to his back and neck and arthritis and he is in pain for a lot of time. The plaintiff is involved in his pain management. 14 The matters I have referred to explain why the plaintiff is unemployed and it is perfectly plain she has no prospect of obtaining future employment. The plaintiff and her husband receive a carer's pension of $449 per fortnight. Those funds barely cover their living expenses. 15 Their assets total $54,000. There is a mobile home which is worth $10,000, a vehicle worth $12,000, personal property to the value of $25,000, and a bank account containing $7,000. That is the total left from the distribution that was made to the plaintiff of a quarter share in the estate. She has used those funds for necessary medical expenses. 16 It is necessary to see what the relationship was between the plaintiff and the deceased. The plaintiff kept up her contact with the deceased throughout her life and, importantly, in the 10 years before the death of the deceased after Robbie had left she was the one who looked after the deceased for that period of time. She lived about an hour away and she would frequently drive to see her mother, to do the shopping, take her to medical appointments and a number of other matters. 17 Effectively, the plaintiff had a fairly full time job looking after her mother who clearly deteriorated, became deaf, and had a number of other disabilities which are all referred to in the Guardianship Report before me. She was a very good daughter and devoted a lot of her time to her mother. 18 It is necessary to see why the plaintiff says she has been left without adequate and proper provision. There is evidence of future medical treatment she will incur, and some alterations to wherever she might live will cost in the order of $93,000. She also has little or no assets, she does not have a home and she has nothing to provide a fund for contingencies which are necessary at this stage of her life. 19 The small amount the plaintiff has received from the estate is obviously partly consumed by medical expenses. It is also necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case one of those is the defendant, Christopher Colyer. Christopher takes the view that he does not wish to make any further claim on the estate and is happy to support his sister's claim for the balance of the funds. He and his wife currently receive a weekly salary before tax about $2,830 and have assets in the order of some $800,000 which includes a home, a motor vehicle and superannuation entitlements 20 Another person which the Court has to consider is, of course, the son Robbie. The defendant's solicitors made extensive enquiries as to the whereabouts of Robbie. There have been advertisements over a period of time. There have been searches of police records, electoral rolls searches, and a number of other searches which in a very thorough way have gone towards trying to locate him. 21 The only addresses that have turned up are those which appear in police records of 2001 and letters have been sent to him trying to contact him so that his input into the matter can be received but to no avail. All letters have been returned including one from an address where he might have been recently but which was refused. In the circumstances, although it may not be particularly apposite in terms of section 20, I determine that service of any notice under that section on Robbie is impractical because of a lack address or the ability to locate him. 22 In terms of considering his interests in the claim which is now before me, nothing is put forward and in these circumstances I think I am at liberty to disregard his interests in my consideration. 23 Even were I not to disregard such interests, there is another reason why I think the interests of the plaintiff should be preferred over the interests of Robbie. The evidence discloses that for the latter time that Robbie was at the house which he shared with his mother he became quite violent towards her. This extended to physical assaults upon her, destruction of property and causing a great deal of hurt and pain to the deceased. The police records support the evidence that is given in this respect by both the defendant and the plaintiff. 24 Having regard to those matters it would seem to me that the conduct of Robbie, absent any explanation from him, would be conduct disentitling. 25 Having considered the matter it seems to me that the plaintiff has been left without adequate provision and it seems to me that the appropriate order is for her to receive Robbie's half share of the estate as an additional provision to her out of the estate of the deceased. 26 The burden of the defendant's costs and the plaintiff's costs of the application are to be borne by that share of the estate. Subject to comments by counsel the orders I make as follows: 27 I make the following orders: 1. That the plaintiff receive, in addition to the provision that she has already received under the will of the deceased, the half share of the estate bequeathed to the deceased's son Robbie Murray Robinson. 2. Such additional provision is to bear the costs of this application. 3. I order that the plaintiff's costs on a party party basis and the defendant's costs on an indemnity basis be retained out of that part of the estate of the deceased which I have indicated is to bear the burden of those costs. 4. I dispense with the service of a notice under form 89B on Robbie Robinson as required by paragraph 9 of schedule J of the Supreme Court Rules. 5. The exhibits can be returned. **********