New South Wales Supreme Court CITATION : Evans v Ryan Ryan v Ryan [2007] NSWSC 1378 HEARING DATE(S) : 26/111/2007 JUDGMENT DATE : 27 November 2007 JURISDICTION : Equity Division JUDGMENT OF : Associate Justice Macready at 1 EX TEMPORE JUDGMENT DATE : 27 November 2007 DECISION : Paragraph 48 CATCHWORDS : Family Provision. Application by widow and stepson. Orders made for furfther provision. No matter of principle. PARTIES : Geoffrey John Evans v Leanne Sharon Ryan & Anor (Estate of Peter Timothy Ryan) Margaret Henderson Ryan v Leanne Sharon Ryan & Anor (Estate of Peter Timothy Ryan) FILE NUMBER(S) : SC 6035/2006; 3016/2006 COUNSEL : Mr RJ Brender for the plaintiffs Mr K. Morrissey for the defendants SOLICITORS : Kennedy & Cooke for plaintiffs Hozack Clisdell Lawyers for defendants - 1 - THE SUPREME COURTOF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE MACREADY TUESDAY 27 NOVEMBER 2007 6035/06 GEOFFREY JOHN EVANS v LEANNE SHARON RYAN - ESTATE OF PETER TIMOTHY RYAN and ANOR 3016/06 MARGARET HENDERSON RYAN v LEANNE SHARON RYAN - ESTATE OF PETER TIMOTHY RYAN and ANOR JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act, 1982 in respect of the estate of the late Peter Timothy Ryan who died on 14 August 2005 aged 61 years. The deceased was survived by his first and second wives, his three children from his first marriage and his two stepchildren. 2 There are two proceedings, one brought by his widow and one brought by his stepson. I have heard both proceedings together, with the evidence in one being the evidence in the other. His first wife has been given notice and makes no claim. Last will of the deceased 3 The deceased's last will was made on 14 August 1998. His two daughters, Tracey and Leanne were appointed his executrixes. He left them some minor bequests, leaving 15% to his wife Margaret Henderson Ryan and as to 85% to his three daughters of his first marriage. He made a statutory declaration at the time of that will explaining why he had not made greater provision. It was in these terms: "3. After considering the legal advice I declare: (a) I have not provided for my former wife, Suzanne Jean Manson as our marriage was dissolved 17 years ago and I believe she has been adequately provided for. (b) I have left 15% of my residuary estate to my wife Margaret Henderson Ryan as I am of the opinion that after taking into account the value of white assets, the amount she will receive should be sufficient for her to purchase aim more suitable accommodation after my death. I believe Margaret would not wish to reside on my farm after my death. I also believe that Margaret is adequately provided for from independent sources and I am unaware that her children have also been well provided for through a family settlement. 4. Other factors that have been taken into account by me in making my Will are: (a) the assets acquired by me through my own efforts; (b) the day to day living expenses incurred by myself and my wife Margaret met equally between us from our separate incomes. (c) I have assisted in raising Margaret's children until they left home. (d) I have raised my own children who left home prize ought to Margaret and myself cohabitating; (e) I wish to leave the bulk of my estate to my children but at the same time ensuring that my wife, Margaret, is well cared for after my death should she survive me. (f) I have been married to Margaret eight (8) years at the time of this declaration and co-habitated with her for a period of three (3) years before our marriage." 4 The matters stated by the deceased are inaccurate in some respects and the subject of some debate. It seems that later on in his life the deceased had some regrets about having made that declaration, and I will refer to that in a little more detail later. Assets in the estate 5 There has been a distribution of $80,000 amongst four beneficiaries. The remaining assets are as follows: 1. There is a farm at 128 Little Forest Road, Milton worth $1,050,000. 2. A home on the homestead block worth $670,000. 3. Cash and shares $114,026. 4. Various items of personal estate and miscellaneous matters $31,835. This is a total of $1,865,861. Family History 6 The plaintiff, Margaret Henderson Ryan, was born in December 1942 and the deceased, Peter Timothy Ryan, was born in May 1943. The plaintiff moved to the Shoalhaven area in 1967. In March 1969 the deceased married Suzanne Manson. In October 1970 the plaintiff married her husband John Evans. Between 1969 and 1975 the deceased had three children. There was a daughter Elizabeth, Geoffrey and a son Allan. 7 In June 1980 1981 the deceased and Suzanne separated. The children remained with their mother and they moved away from the area where they were living on the South Coast to Scone. In 1982 there was a property settlement and in April 1983 the plaintiff and her husband separated. Their home at 150 Camden St, Ulladulla was transferred into the plaintiff's name. 8 It was in December 1984 that the plaintiff and the deceased commenced a de facto relationship. The plaintiff Margaret moved with her three children to the deceased's property at Little Forest Road in Milton. They married in September 1990 at a ceremony carried out on the property. In 1991 the plaintiff inherited $61,000 from her mother. In 1992 the plaintiff's son, Allan, died, unfortunately committing suicide by shooting himself on the property. In due course the mother inherited some $14,000 from his estate. In 1994 she purchased a property at South Pacific Crescent, Ulladulla for $150,000. It was rented for some time and she borrowed $76,000 to pay for the property and used the money she had received. 9 Between 1997 and 1999 the plaintiff spent some time at the Ulladulla property rather than living with the deceased on the farm. I will come back to that aspect. 10 In July 1996 the plaintiff, at the insistence of the deceased, sold the Camden Street property in Ulladulla for $96,000. In August 1998 there was the will and the statutory declaration to which I have referred. 11 It was in September 1999 that the plaintiff returned to Little Forest Road, Milton to reside permanently with the deceased on the farm. 12 In the year 2000 the plaintiff's son Geoffrey John Evans had a bad car accident and, as a result of that, he suffered injuries, as did people in the other cars involved in the accident. Geoffrey was sentenced to some years in jail in 2001 as a result of the dangerous driving and he served one year of that sentence. In 2002 the deceased required the plaintiff to sell the South Pacific Crescent property and she complied, selling at $220,000. She bought a smaller house in Milton for $130,000 and that is the home in which her son Geoffrey now lives with his partner and child. 13 There is evidence of conversations in 2002 that the deceased wanted the matrimonial home to be the plaintiffs, and in August 2005 there are a number of conversations which she had with the deceased in which he apparently was regretful of something he had done in the past, presumably the signing of the statutory declaration. He died on 14 August 2005 whilst travelling away from home. Eligibility 14 The plaintiff Margaret Henderson Ryan is an eligible person. The plaintiff Gregory John Evans is also an eligible person. The deceased provided accommodation in his household for the plaintiff Gregory during a substantial part of his upbringing. 15 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'". 16 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 he 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." 17 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 18 Geoffrey was nine years old when he started to live with his other siblings with the deceased. He remained there until 1997 when he was 22 or 23 years of age. It is plain in this period the deceased was in loco parentis to Geoffrey. In those circumstances on the ordinary bases there would be factors warranting and I will consider whether there are prospects of success. 19 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". 20 I turn to consider the situation in life of the relevant claimant, the plaintiff Margaret Henderson Ryan. Margaret is 64 years of age and is single with no dependants. Her son Jeffrey is dependent upon her for accommodation. She provides for him and his family and that accommodation is at the property she owns at 164 Princes Highway, Ulladulla. 21 The plaintiff Margaret worked for many years as a cashier and in other positions at the local Council but recently has retired. She now receives a monthly net pension of $1,666 from the Local Government Superannuation Scheme. Her assets are as follows: 1. 164 Princes Highway in Milton $205,000. 2. Local Government Superannuation Scheme $226,000. 3. 2002 model Holden Commodore $10,000. 4. She has no savings. 22 There is a 16.2 hectare bush block, to which I will refer later, and which is held as to one half by her. It is plain that is held by her, on the evidence, in trust for her son Geoffrey. The other half is held by Geoffrey's sister. 23 The plaintiff is at present living in the matrimonial home in which she has lived in for some 22 years. 24 The plaintiff's relationship with the deceased was a strong one with the plaintiff helping around the farm as well as working full time. The only period when they were not full time together was between 1997 and 1999 when she needed some time out to deal with the loss of her son Allan some years earlier. 25 The comments in the statutory declaration to which I have referred come from the deceased's perception. Although no financial contribution to the estate was made by the plaintiff, she contributed a lot of energy and time in helping on the property and supporting the deceased's efforts. They lived together for six years before marrying and not three as was said by the deceased in the statutory declaration. His suggestion that Margaret would not wish to live on the farm was not a view that she accepted. She stated that the move to Milton at the time when this declaration was made was only a temporary matter and she would gladly return to live full-time with the deceased when he asked her to do so. 26 In my view there was a good relationship between the plaintiff and the deceased from 1984 until his death in 2005. They raised the plaintiff's children as a family and coped with difficulties and tragedies. The situation in life of Geoffrey 27 Geoffrey is 32 years of age and lives with his partner Julie, Julie's child Karen, and their own child born in March of this year. Geoffrey receives a disability pension of $450 per fortnight. Julie receives a parents family pension of $570 a fortnight, giving a total to the household of $510 per week or $11,020 per fortnight. 28 Julie and Geoffrey both own an old car of not much value and have recently had the windows broken in their vehicles. The only asset of any substance that Geoffrey owns is the half share of the block of land of 16.2 hectares at Porters Creek Road, at Yatte Yattah. That is valued at $140,000. This they received as part of their parents divorce settlement. The land is used for agistment by an adjoining landowner who meets the cost of rates of his agistment fees. Therefore it is quite unprofitable. It cannot be subdivided and cannot be built upon. It would only be of value to one of the adjoining owners who would be interested in purchasing it. This leads me to the view that it will probably be difficult to sell; but, like all things it can be sold and no doubt that is a factor to take into account in the evaluation. 29 Geoffrey and his partner and the children live in their mother's home, which is a small two-bedroom house of a small size on reasonable block of land. They find it impossible to pay rent given their expenses and cannot afford necessary maintenance around the house and for their cars. 30 As a result of his accident Geoffrey suffered injuries to his feet, right ankle and knee. He cannot lift heavy objects and cannot walk on uneven ground. He has not been able to find any employment. He did work in a car repair workshop and has done a TAFE hospitality course. Such work is not suitable as he cannot stand for any great continuous period of time on his feet without pain. He is taking painkillers to manage the pain from time to time. He has been trying to find a job but for someone with his difficulties it would be very difficult for him to gain employment. 31 Geoffrey had a good relationship with his stepfather and helped out on the farm. He even looked after the farm on one occasion while the deceased and the plaintiff Margaret were away and Geoffrey was still at school. 32 It is also necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are the other beneficiaries, the three daughters of the deceased's first marriage. Leanne Ryan 33 Leanne is 39 years of age and is engaged to be married. She has no dependants. She works as a waitress or part time bookkeeper and earns about $500 a week which is consumed by her expenses. Her only assets are cash and shares of $1,130 and superannuation of $4,316. She has debts to David Jones of $4,030 and a HECS debt of $11,035. 34 In 2002 she commenced a Bachelor of Commerce and has enrolled in a Graduate Diploma of Education this year. It is a part-time course and it will take until 2010 to complete. She will then be able to obtain some better job but the cost of all this is expected to be in the order of $67,000. She, like her other siblings, although remote from the deceased had a good relationship with him and that relationship continued throughout their lives. Tracey Ryan 35 Tracey is 36 years of age, is single and with no dependants. She is a qualified pharmacist who is considering changing her career direction by studying business and law at a cost of $76,000. Her income is $595 per week and her expenses, including rent, exceeded that by $105 per week. Her assets are as follows: 1. Cash and shares $2,627. 2. Superannuation $16,894. 3. A car worth $11,700. She has liabilities and these are: 1. Visa card $7,137. 2. A car loan $14,669. 3. HECS $32,979. That is a total of $54,785. Karen Ryan 36 Karen is 32 years of age, has no dependants and works in Victoria, working as a casual waitress. Her income varies from $240-$500 per week and her expenses $415 per week. She has minimal cash, she has a few shares and superannuation of $2113. She has no other assets of significance and has a credit card debt of $6,546. 37 With the advent of her marriage she will have the needs of a person commencing such a path in life. 38 It is necessary to see how the plaintiff's say they have been left without adequate and proper provision for their maintenance, education and advancement in life. The plaintiff Margaret wants to retain the matrimonial home and receive a legacy of $200,000 to top up her income by an additional $800 per month. This is instead of her existing share of 15 percent. 39 Geoffrey asks for a legacy of $200,000 so he can purchase a home or at least pay rent on the current home or, alternatively, he is content if some global approach be taken such that his mother received a greater legacy so that she need not sell the Milton property which would still be available to him. 40 I think that there is much force in the claim of Margaret to have the former matrimonial home. Although it has three bedrooms and is large she has a need for more than minimal accommodation. Her grandchildren stay with her and she needs room for her craft activities. She plainly has a very strong emotional attachment to the property and wants the space for the animals which she presently keeps. 41 It was suggested to her in cross-examination that she may move to the place at Milton which she owns and share it with her son and his partner and the two children, perhaps by expanding it. Even considering the fact that there is no evidence of what such cost might be, and whether it might be possible to do, it is probably an inappropriate suggestion which was conceded by Geoffrey in cross-examination. It is one thing to be able to get along well with one's parents but once one is grown up it is better to be living apart. 42 So far as her claim to income is concerned, when employed she was able to exist on about $320 per week. Her net wage was $650 per week and she saved $250 per week. Her present weekly income is $284 net per week. 43 She claims she needs $600 per week gross but gives no details of how that figure is to be calculated. I have no doubt some additional income would give her some margin and if Geoffrey could pay rent then this would be an available option. 44 I note that a claim of a widow is not to be given primacy but, as was pointed out in Bladwell v Davis (2004) NSWCA 176, the circumstances of each individual claimant must be investigated in the stages of consideration referred to in Singer v Berghouse. 45 The relationship in this case was for 22 years and the parties worked together and brought up the plaintiff's children. The plaintiff Margaret feels quite properly a moral obligation to provide accommodation for her son Geoffrey whose present difficult situation I have already referred to. 46 The other claimants on the deceased bounty are his three children. They have not received much from him in their lifetime and all have little or no assets and clearly could benefit from some provision of capital to give them a start in life or, in two cases, to cover future education needs. Geoffrey 47 Geoffrey needs a small sum for his future necessities. It is not appropriate for him to be provided with a sum for a home, and indeed his small asset when it is sold will provide that opportunity if he can then take it up to improve his situation. He needs, however, a sum to enable him to pay rent for some years until he can get employment and make his way in life. I have no doubt if he had some surplus he could use that to pay his mother rent which would also provide her with a little additional income. 48 A consideration of all the factors leads me to the view that appropriate orders are as follows: 1. In lieu of the provision in the will of the deceased, the plaintiff Margaret Henderson Ryan receive a legacy of $20,000 (which has already been paid) and a bequest of the property at 132 Little Forest Road, Milton, and the furniture and effects contained therein. 2. That the plaintiff Geoffrey Evans receive a legacy of $100,000. 3. That the balance of the estate be held by the executors for the three children of the deceased equally. 4. That the plaintiff's costs on an ordinary basis, and the defendant's on an indemnity basis, be retained or paid out of the estate of the deceased. 5. That interest be payable on the legacy in (2) above at the rate provided for under the Wills Probate and Administration Act 1898 if not paid within four months from today's date and to be payable on and from that date. 6. I order the exhibits 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.