New South Wales Supreme Court CITATION : Anne Stephanie Wright -v- Public Trustee [2007] NSWSC 892 HEARING DATE(S) : 29, 30 March 2007 23 April 2007 JUDGMENT DATE : 15 August 2007 JUDGMENT OF : Associate Justice McLaughlin DECISION : 1. I order that, in addition to the benefit given to her by the will of the late Frederick Pickford Gordon ("the Deceased"), the Plaintiff receive a further legacy in the sum of $50,000, such further legacy not to bear interest if paid on or before 15 September 2007, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned. CATCHWORDS : Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Estrangement between Plaintiff and Deceased. Plaintiff seeks an amount sufficient to purchase a residence. Plaintiff not so entitled. LEGISLATION CITED : Family Provision Act 1982 Blore v Lang (1960) 104 CLR 124 CASES CITED : Singer v Berghouse (1994) 181 CLR Vigolo v Bostin (2005) 221 CLR 191 PARTIES : Anne Stephanie Wright (Plaintiff) Public Trustee (Defendant) FILE NUMBER(S) : SC 1955 of 2006 COUNSEL : Mr S. Benson (Plaintiff) Mr L. Ellison SC (Defendant) SOLICITORS : Downie & Co (Plaintiff) Antony John Sutton, Solicitor for the Public Trustee (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Wednesday, 15 August 2007 1955 of 2006 ANNE STEPHANIE WRIGHT –v- PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 20 March 2006, Anne Stephanie Wright claims an order for provision for her maintenance, education and advancement in life out of the estate or the notional estate of her late father Frederick Pickford Gordon (to whom I shall refer as "the Deceased"). 3 The Deceased died on 19 March 2005, aged 87. He left a will dated 13 June 1996, probate whereof was on 2 May 2005 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). 4 The Deceased, who was a widower at the time of his death (his wife, Mrs Dorothy Gordon, having died on 20 August 1991), was survived by his four children, Robert Bruce (who is presently aged 59, having been born on 28 April 1948), Anne Stephanie (Mrs Wright) (who is presently aged 56, having been born on 9 April 1951), John Gerard (who is presently aged 53, having been born on 1 March 1954), and Margaret Mary (Mrs Sullivan) (who is presently aged 51, having been born on 12 June 1956). I shall for convenience, and without intending any disrespect, refer to each of the Deceased's children by his or her first given name. 5 By his will the Deceased gave to each of Robert and Anne a legacy of $10,000. He gave to John a legacy of $100,000, and gave the residue of his estate to Margaret, his youngest daughter. 6 The inventory of property discloses the following assets (and the respective estimations of value ascribed thereto), House property situate at and known as 17 Haughton Street, Linley Point $1,500,000 Cash $620 Commonwealth Bank account $40,558 Colonial Mutual Life Assurance $180,000 Department of Veterans' Affairs superannuation $1,000 Coles Myer shares $25,780 Insurance Australia Group shares $8,890 ANZ Managed Investments $9,260 Secured Investment with CBFC Limited $100,000 Various secured investments with Esanda Finance Corporations Limited $101,162 Total $1,967,271 7 The Deceased had no liabilities at the time of his death. 8 Subsequently the house property was sold and various other assets of the estate were realised. According to the affidavit of executor sworn 31 May 2006, the current balance in the estate account at that time was $1,498,354, and the estate held unrealised assets to the value of $245,092. 9 In addition, there had been made an advance distribution to Margaret in the sum of $240,000. Further, the Defendant estimated that there would be an amount of Trustee's commission on unrealised assets in an amount of $2450. Otherwise, all estate liabilities, apart from the costs of the present proceedings, had been paid. It was estimated on behalf of the Defendant that the net value of the estate was $1,980,996. 10 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to an order that her costs be paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs paid out of the estate. 11 It was estimated on behalf of the Plaintiff that her costs will total about $57,184. However, that estimation was based upon a hearing occupying no more than one day. In the event, the hearing extended over three days (although the hearing occupied only one and a half hours on the second day and only half a day on the third day). In consequence, therefore, it is prudent to assume that the costs of the Plaintiff will total at least $70,000. It was estimated on behalf of the Defendant that his costs will total about $60,000 (although I note that that estimate is, somewhat curiously, based upon the assumption that the hearing occupied four days, when, in fact, the hearing, as I have already recorded, extended over three days). 12 Accepting, however, for the purposes of this calculation that that the costs of the Plaintiff will total about $70,000, and the costs of the Defendant will total about $60,000, I consider it prudent to proceed upon the basis that the value of the net distributable estate will be about $1,850,000 (of which $240,000 has already been distributed to Margaret). 13 The Plaintiff left home at the age of 19 and married her present husband Neal Wright on 3 October 1970. There are six children of that marriage. All are now adults, and all have received a tertiary education. Their youngest son, who is still at university, is partly dependent upon the Plaintiff and her husband. 14 The Plaintiff is currently in full-time employment as a retail manager and, earns $37,000 a year (approximately $712 a week). Her husband Neal is employed as a manager of a Mobil service station and earns $41,017.00 a year (approximately $789 a week). The total weekly income of the Plaintiff and her husband is about $1,500 a week. Each of the Plaintiff and her husband has a superannuation entitlement of $5,000. They jointly own a motor vehicle (to which a value of $5,000 was ascribed), and have savings of $4,000. The only other asset which they ascribed is the contents of their residence, to which they ascribed a value of $4000. The Plaintiff and her husband do not have any current liabilities. 15 The Plaintiff and her husband reside in rented accommodation at Bondi, for which they pay rent of $1,400 a month ($350 a week). The Plaintiff provided details of their expenses (including that rent), in a total amount of $4,665 a month. 16 The Plaintiff was estranged from the Deceased, and also from her mother, for many years before they died. She last had any personal contact with her parents in 1986, some five years before her mother's death. Although she attended her mother's funeral, she did not speak to her father on that occasion. 17 In about 1982 the Plaintiff, her husband and their children removed to Queensland, where they remained for twelve years. (They had previously resided in Queensland for about two years in the early 1970s.) 18 According to the Plaintiff, in the mid-1990s she despatched Christmas cards to the deceased on two separate occasions. Apart from those two alleged cards, the Plaintiff made no attempt to contact or communicate with the Deceased for about twenty years before his death. She did not ever inform the Deceased that she was removing to Queensland; neither, indeed, did she inform him of her return to Sydney in about September 1994. 19 Apparently in an attempt to explain her estrangement from her parents, the Plaintiff gave considerable and detailed evidence of the alleged drinking practices and alcoholism of her mother. Those allegations were denied by Margaret, the principal beneficiary, and her husband (each of whom gave evidence). No evidence was given in the proceedings by either of their siblings, Robert and John. 20 It is difficult to understand how, even if those allegations of the drinking practices of the Plaintiff's mother were true, they could have impacted upon, let alone explained, the relationship – or absence of relationship – between the Plaintiff and her father during the fourteen years from her mother's death to her father' death. It is quite apparent that the Plaintiff and her family were content not to have any relationship with the Deceased for about the last twenty years of his life. 21 It was suggested to the Plaintiff under cross examination, but denied by her, that the true reason for her estrangement from her parents was the fact that in mid-1970s the Plaintiff and her husband were convicted of a criminal offence, that being a fact of which her parents were aware. 22 The Plaintiff and her husband have always lived in rented accommodation. It was the commendable aspiration of the Plaintiff that they should be enabled to acquire a residence of their own, be it a house property or a home unit. Evidence was placed before the Court of the results of enquiries made by the Plaintiff concerning the availability and prices of residences in the Bondi area, that being the Plaintiff's preferred locality and the area in which she and her husband have been residing for the past three or four years. 23 The Plaintiff seeks an order for provision which would enable her to acquire such a residence, costing in the range of about $450,000 to about $550,000. 24 The only other asserted needs identified by the Plaintiff were a desire that she be enabled to assist her children in repayment of their respective HECS debts (the outstanding amounts whereof appear to total $63,000, perhaps somewhat more). 25 The claim of the Plaintiff must be approached in the light of competing claims upon the testamentary bounty of the Deceased. The competing claims are those of the Plaintiff's two brothers and sister. Each of those persons is a beneficiary named in the will of the Deceased. Each, although served with a notice of claim, has not himself or herself made any claim for additional provision out of the estate of their father. The effect of the competing claims is that they may reduce, or even extinguish, any order for provision an entitlement to which the Plaintiff might otherwise establish. However, those competing claims cannot in any way enhance the claim of the Plaintiff. 26 The chief object of the testamentary beneficence of the Deceased was his youngest child Margaret, who is the residuary beneficiary named in his will. The effect of the testamentary provisions of the Deceased is that Margaret, who has already received an interim distribution of $240,000 (in order to prevent her husband and herself from being dispossessed of their residence under a writ of possession issued at the instance of the mortgagee thereof) will receive a further amount of upwards of $1,500,0000. 27 Margaret had a close and loving relationship with her father throughout her life and was his chief mainstay, especially in his later years, when his eyesight deteriorated. 28 Margaret, who is presently aged 52, resides with her husband John Patrick Sullivan, whom she married in 1975. They have five children, now aged between 19 and 31. 29 The assets and liabilities of Margaret and her husband are as follows, House property situate at and known as 84 Kambora Avenue, Davidson $800,000 Household furniture and effects $20,000 Toyota Rav 4 motor vehicle $17,000 Bank account $50 30 Margaret and her husband have the following liabilities, Mortgage $600,000 Credit cards $4,380 Coles Myer $2,830 David Jones $5,000 Turks Legal $21,000 St Joseph's College (school fees for their youngest son) $50,000 Personal loans, owing to kinsfolk and friends $56,500 31 Margaret is employed as a fashion consultant, receiving a monthly income of $1,400. Her husband works as a consultant to a tiling firm, receiving a monthly income of $4,500. 32 Margaret and her husband provided details of their monthly outgoings, totalling almost $8,000 (the most significant of which items is a monthly mortgage payment of $3,930). 33 In recent years John Sullivan has suffered two major heart attacks and multiple episodes of transient cardiac ischaemia, which have affected his ability to work. 34 I have already recorded that Margaret has received an interim distribution of $240,000 from the estate, in order to pay off the most pressing of the liabilities of herself and her husband, that being a mortgage to Perpetual Trustee Victoria Limited. It is the desire of Margaret to use the money which she will receive from the estate of her late father to pay all the creditors of her husband and herself. She is also desirous of providing for her retirement, in respect of which she has no arrangements in place. Further, she desires to effect improvements to and maintenance upon their residence. She expressed a desire that she and her husband purchase another motor vehicle, since they work in different industries and in different geographical locations in Sydney. She also said it would be her desire to assist her children from time to time as they start out in the world. 35 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 36 I had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 37 The Plaintiff as an adult child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. It will be appreciated that each of the other three children of the Deceased is also an eligible person, within the same paragraph of the foregoing definition. Apart from his four children, there are no other eligible persons in relation to the Deceased. 38 It was submitted on behalf of the Defendant that the Plaintiff had been guilty of what used formerly (in relation to the Testator's Family Maintenance and Guardianship of Infants Act 1916, being the statutory predecessor to the Family Provision Act) be referred to as conduct disentitling. In this regard, the Defendant pointed to the instructions given by Deceased to the Public Trustee (Exhibit 2), in which the Deceased, in respect to any possible claims by any of his children, had expressed reasons for his testamentary provisions or for exclusion as follows, Robert because he is well provided for. Anne because has no contact or knowledge of her whereabouts. Margaret has been given most, as she has provided most assistance since wife's death. 39 It will be appreciated, however, that the Deceased did not totally disregard the Plaintiff, but recognised her claim upon his bounty by leaving to her a legacy of $10,000. Whilst a legacy in that amount might be regarded as being of no great significance when compared to the totality of the assets of the estate, in the order of $2,000,000, nevertheless, a legacy of $10,000 should not be regarded as derisory. 40 I have already referred to the estrangement and lack of contact between the Plaintiff and the Deceased. In this regard, it should be appreciated that an order for provision is not made as a reward for services and good conduct on the part of an applicant. Neither is such order withheld as punishment for perceived bad conduct on the part of the applicant. 41 In this regard, it is appropriate that I should set forth the following salutary admonition of Windeyer J, in the High Court of Australia, in Blore v Lang (1960) 104 CLR 124 at 137, The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case. 42 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 –210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance. 43 The Plaintiff and her husband are presently well able to meet their weekly outgoings. The present living arrangements of the Plaintiff are satisfactory, where she and her husband are secure in their accommodation and are able to meet the rent. 44 Whilst the desire on the part of the Plaintiff to own a residence is commendable, nevertheless it should be observed that the Plaintiff and her husband have always resided in rented accommodation. They have never owned their own home. Where, as here, they are secure in their accommodation and can adequately pay the rent for that accommodation, the desire to own their own residence does not constitute a need. It certainly in no way can be regarded as a legitimate claim upon the testamentary bounty of the Deceased that he should provide sufficient funds to enable an adult daughter, living with her husband, both being in employment, to purchase a house or a home unit. 45 Further, the Plaintiff's desire to assist her children, commendable in itself, does not constitute a need which entitles her to look to the estate of the Deceased for fulfilment. 46 The only other need suggested by the Plaintiff, and in no way quantified, was a desire to have some fund to constitute a buffer to meet unexpected contingencies. 47 Despite the failure of the Plaintiff in any way to maintain a relationship with the Deceased during the last twenty years of his life, nevertheless I am satisfied that the Plaintiff has established an entitlement to receive a relatively small fund from her father's estate for the purpose of constituting such a buffer. The legacy of $10,000 given to her by the Deceased is not, in my conclusion, sufficient for that purpose. I consider that it is appropriate that she should receive an additional sum of $50,000. 48 The competing claims of the other beneficiaries, in particular that of Margaret, are not such as would have the effect of reducing, let alone extinguishing, an order for provision for the Plaintiff in the foregoing amount. 49 Accordingly, I make the following orders, 1. I order that, in addition to the benefit given to her by the will of the late Frederick Pickford Gordon ("the Deceased"), the Plaintiff receive a further legacy in the sum of $50,000, such further legacy not to bear interest if paid on or before 15 September 2007, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.