Dalton v Paull [2007] NSWSC 721

New South Wales Supreme Court

CITATION : Dalton v Paull [2007] NSWSC 721

HEARING DATE(S) : 28/06/07

JUDGMENT DATE : 29 June 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready

EX TEMPORE JUDGMENT DATE : 29 June 2007

DECISION : Paragraph 41

CATCHWORDS : Family Provision. Application under Family Provision Act by a stepson. Order for small legacy. No matter of principle.

PARTIES : Stephen John Dalton v Vicki Paull (Estate of Allan Cyril Hodson)

FILE NUMBER(S) : SC 2407 of 2006

COUNSEL : Mr R Wilson for plaintiff Mr L Ellison SC for defendant

SOLICITORS : Turnbull Hill Lawyers for plaintiff Adrian Holmes Lawyer for defendant

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

ASSOCIATE JUSTICE MACREADY

FRIDAY 29 JUNE 2007

2407/06 - STEPHEN JOHN DALTON v VICKI PAULL - ESTATE OF ALLAN CYRIL HODSON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Allan Cyril Hodson, ho died on 8 June 2005. He was survived by the plaintiff, his step grandchild, and the defendant, also a grandchild. The deceased's wife predeceased him, as did the father of the plaintiff. The will of the deceased 2 The deceased made his last will on 1 October 2002 under which he left the whole of his estate to the defendant and appointed her to be executor and trustee thereof. Assets in the estate 3 The deceased's home has been sold and the estate has been reduced to cash. There has been a distribution to the defendant of $30,000. An amount of $5,257 has been paid by the defendant in respect of her costs and the balance of the distributable estate is now $172,187. The plaintiff's costs are estimated at $33,948 and the balance of the defendant's costs are $15,712. There is a total of $49,660, leaving a distributable estate of $122,527. Family history 4 The defendant was born in 1957 and the plaintiff on 24 June 1963. In 1967, when the plaintiff, Stephen, was aged three or four he lived with his parents for a time in the home of the deceased and his paternal grandmother, Hazel. At that stage another step grandchild, Glenn Ridge, and his parents were also living with the deceased. It was only for a short period of time, although the evidence does not say precisely how long. In 1972 and 1973 the defendant lived with the deceased and his wife for a period of some 18 months between 1975 and 1976 for about a year. The defendant used to live at the deceased's place while she was working doing her morning shift at the Gosford Hospital. She was, at that stage, a student nurse and studying for her qualifications. At that stage the plaintiff was not resident in the deceased's house. 5 In 1975 the plaintiff's parents separated. Initially the plaintiff stayed with his mother but he then moved to his father and he and his father started living with the deceased and Hazel in their home at Hill Street, Gosford. The time when that happened was slightly movable in the plaintiff's evidence but probably was either at the end of 1976 or early 1977. There was a move by the deceased and his then household, which included the plaintiff, his father and Hazel, in 1980 to a property at 9 Lemon Tree Street Wyoming. At that stage Stephen had a separate bedroom which was an enclosed area in the verandah out the back. The house was only a two-bedroom house. In 1980 the plaintiff left his school and started to work as a spare parts salesman. He initially paid board of $25 per week increasing to $70 per week by 1988 according to his evidence. 6 On 27 April 1984 the plaintiff and his girlfriend bought a property at Ourimbah and they commenced to live there. In 1984 to 1985 the deceased and Hazel won $100,000 in the lottery and gave the plaintiff $1500 in cash and also gave the same amount to their other two step-grandchildren. 7 It was in 1988 that the plaintiff in his affidavit evidence suggested that he ceased to live with the deceased at the age of 25 years. Actually what happened on 16 February 1988 was that the plaintiff and his by now ex-girlfriend sold the Cambridge Circle, Ourimbah property. The address shown by him on the transfer at this stage was the Ourimbah address, although the address for his girlfriend was her actual address, being her parents' address to where she had returned. 8 In 1991 the plaintiff married his first wife, Nadine. The deceased and Hazel contributed $3000 to the cost of the wedding. In 1992 the plaintiff and Nadine purchase some land at Gorokan and sold it in 1994 and purchased land at Morisset. It was on 23 August 1995 that the deceased's wife, Hazel, died. In that year the plaintiff and Nadine separated. A couple of years later in 1998 the plaintiff moved to Queensland and suggested to the deceased that he might like to move to Queensland to live with him. 9 In 1998 the plaintiff's father died and the plaintiff came down from Queensland for the funeral and stayed for a few days with the deceased. 10 In 1999 the plaintiff married his second wife, Christine. In 2001 there were communications between the plaintiff and the deceased in which the plaintiff asked for financial assistance. That produced a rift in the relationship with the deceased. On 1 October 2002 the deceased made his last will leaving it all to the defendant. 11 In 2003 the plaintiff separated from his second wife. On 22 November 2004 the deceased wrote a letter to the plaintiff saying that he did not want to have anything more to do with him. The deceased gave the letter to the defendant and asked her to post it but she did not do so. She gave it to her solicitor asking him to look after it. 12 The deceased died, as I have mentioned, on 8 June 2005 and probate was granted. These proceedings were commenced in time. Eligibility 13 The plaintiff will be an eligible person if he was part of the household in which the deceased was a member and was partly dependent upon the deceased. 14 In respect to the period when his parents stayed with the deceased for a short time in 1967 with the plaintiff, who was then aged three, I think he was not dependent upon the deceased. It was a short transient time and his parents were responsible for him. The financial information is such that I could not conclude there was any dependency. 15 The more important time was when he moved there with his father in 1976 or early 1977 after his parents separated. He was then 13. The plaintiff actually moved there after the defendant and Mr Ridge, his other second cousin, left the premises. The real question is how long did he stay there. In his affidavit evidence he said that he stayed there until 1988. He was cross-examined and initially conceded that there were some periods when he moved out for a short time after he left school. When confronted with his having bought a property at Ourimbah with Toni Jane Brown he was forced to admit that he had bought the property in April 1984 and that they had, in fact, moved from the deceased's home and lived there for some, according to him, nine months. None of that, of course, was disclosed in his affidavit evidence. 16 He then said that after the relationship with his girlfriend finished he went back home but the property, as I have indicated, in the chronology was not sold until February 1988. He claimed that it was tenanted, but there were no documents produced in relation to this and ultimately he said the property was sold to the tenants. Faced with the transfer of sale showing him residing at Ourimbah he said the tenants moved out before the sale and he moved back in. There is no evidence to support this strange story. I find it hard to believe that he just forgot about it and I do not accept his explanation. There was evidence from others that he was living at the deceased's home up until 1984 and, accordingly, I accept that he was a member of the household from 1977 to 1984. 17 In respect of the dependency I am prepared, having regard to the evidence of the plaintiff's mother, to accept that the plaintiff's father was a serious alcoholic. Plainly he could not look after the plaintiff and did not seem to take a great deal of interest in him. In addition to being dependent upon the deceased for accommodation during the seven-year period the plaintiff also received financial assistance whilst at school and after leaving school. Because of his drinking problem the plaintiff's father did not have the financial income to adequately look after the plaintiff. This left the deceased and his wife, Hazel, to provide the plaintiff, while he was at school, money for the tuckshop, text books, stationery and school excursions, together with uniforms and sporting equipment. This is not inconsiderable, being about $500 per year. 18 I have already mentioned two matters of a gift of $1500 and a payment for a wedding. Those matters are important in later considerations but I do not think they actually demonstrate dependency. Having regard to his age and the lack of assistance from his father I am satisfied that he was dependent upon the deceased and is an eligible person. 19 However, it is necessary under s 9(1) of the Family Provision Act that the Court should first determine whether there are factors warranting the making of the application. The courts have dealt with this on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1)(former spouses, and sometime dependent grandchildren all household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application'". 20 In Churton v Christian (1988) 13 NSWLR 241 the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added: -- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."