Wilson v Knight Knight v Wilson [2009] NSWSC 230

New South Wales Supreme Court

CITATION : Wilson v Knight Knight v Wilson [2009] NSWSC 230

HEARING DATE(S) : 31/03/2009

JUDGMENT DATE : 31 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 31 March 2009

DECISION : Paragraph 36

CATCHWORDS : Family Provision. Application by widow who was left a life estate. Discussion as to whether life estate appropriate. Held not appropriate and plaintiff to receive whole estate.

CHRISTINA WILSON -V- JOHN FREDERICK KNIGHT PARTIES : MELANIE WILSON -V- JOHN FREDERICK KNIGHT PABLO WILSON -V- JOHN FREDERICK KNIGHT JOHN FREDERICK KNIGHT -V- CHRISTINA WILSON

FILE NUMBER(S) : SC 5179/08 ; 5180/08; 5181/08; 5440/08

COUNSEL : Mr P Walsh for Wilsons Mr P O'Loughlin for Knight

SOLICITORS : PJ Wood & Associates for Wilsons Warren McKeon & Dickson for Knight

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 MARCH 2009

5179/08 CHRISTINA WILSON v JOHN FREDERICK KNIGHT IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE RONALD JAMES WILSON

5180/08 MELANIE WILSON v JOHN FREDERICK KNIGHT IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE RONALD JAMES WILSON

5181/08 PABLO WILSON v JOHN FREDERICK KNIGHT IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE RONALD JAMES WILSON

5440/08 JOHN FREDERICK KNIGHT v CHRISTINA WILSON

JUDGMENT

1 HIS HONOUR: This is the hearing of three applications under the Family Provision Act in respect of the estate of the late Ronald James Wilson who died on 18 November 2004 and an application in possession proceedings brought by the executor. All proceedings have been heard together with the evidence in one being evidence in the other. 2 I will, first of all, deal with the Family Provision Act proceedings. The plaintiffs in the three Family Provision Act applications are the deceased's widow and his two stepchildren. The last will of the deceased 3 The last will of the deceased was made on 15 December 1987 and by his will the deceased left the whole of his estate to his executor to hold on trust for his wife, Christina Wilson, for her lifetime or until she shall re-marries of the to and upon her death or re-marriage "to such of my children who shall survive me and attain the age of 18 years and if more than one, then equally…." The will further provided that "should no child of mine survive me…" then the residue is to go to the sister of the deceased's wife, Teresta Camacho who resides in the Philippines. Assets in the Estate 4 The only remaining asset in the estate is the deceased home at Kyeemah having a value of about $640,000. Cash in the estate of $33,344.95 has been used for payment of the trustee's legal costs. There are a further $83,000 in costs which have been incurred and I will come to these later. Family History 5 As I have mentioned, the deceased was survived by his wife Christina Wilson and her two children, Melanie Wilson and Pablo Wilson. These children are not the natural children of the deceased and were born prior to the deceased having married Christina Wilson. 6 Christina Wilson was born in September 1955 and married the deceased on 27 February 1982. Melanie Wilson was born in September 1975 and Pablo Wilson was born in July 1977. Since the time of the deceased marriage with Christina Wilson she has lived at the Kyeemagh property and continues to do so. Pablo Wilson, although married, also lives there. 7 The deceased will, as I mentioned, was made on 15 December 1987 and he died on 18 November 2004. Time for making an application expired on 18 May 2006. The three proceedings were not commenced until the filing of summonses on 14 October 2008. Extension of Time 8 The application is out of time and so it is necessary for the Court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which referred to the principles to be applied in an application for extension of time. 9 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, Powell JA referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 10 Sheller JA considered that it was only necessary to show that the application was not bound to fail. Cole JA seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 11 In this case there is no prejudice or unconscionable conduct. The evidence in the matter was concentrated on the explanation for the delay of nearly some two years. 12 The extensive correspondence over the years started with a question as to a proper interpretation of the will and whether the deceased's two stepchildren would fit within the expression used by the deceased "my children". 13 The will gives no clue will so we can resort to the "armchair principle" to consider the circumstances by which the testator was surrounded to assist in determining his intention. See Boyes v Cook (1880) 14 ChD 53 at 56. For an Australian example in the current situation see In re the will of Ahchay (1997) 6 Tas R 369. Although more modern views have been expressed about the meaning of "child" in Harris v Ashdown (1985) 3 NSWLR 193 at 200 I will assume that the usual meaning of "child" is a one of consanguinity. 14 The deceased had no children and could not have any. When he married, the children of the plaintiff were four and six years old. They became part of his household and lived with him in Australia with the plaintiff. They were brought up as his children and not stepchildren. He was intimately involved in their parenting and later with their own children. They called him "dad". 15 In the circumstances, without having to go into the contentious area of what might have been said when he made his will and instructions given, it is plain that he was intending to mean his stepchildren in the use of his expression "my children". Given my decision in this matter, it is not necessary for me to make formal orders in this respect but I just refer to this matter. 16 The correspondence went through a torturous course. This included: (a) By June of 2005 the solicitor for the estate suggesting a deed of Family Arrangement would solve the problem. That plainly was needed, and needed the consent of Teresita Camacho. (b) By May of 2006 discussions of arrangements to get Teresita Camacho's address in the Philippines and her consenting to the deed. (c) In September of 2006 there was the supply of a draft deed. (d) On 9 November of 2006 it was eventually translated. (e) Attempts were made to get a signature in April 2007 and a signature was obtained without any proper or informed consent. 17 By May 2007 another problem surfaced. There was non-payment of rates, land taxes and water rates. By August of 2007 Teresita Camacho had refused her consent. There thus continued a history of non-payment of outgoings until late 2008. Eventually the executor started proceedings for possession on 20 May 2008 and they were the subject of a judgment on 29 October 2008 by Malpass AsJ . He made an order for possession but did not deal with the issue of the writ for possession as proceedings under the Family Provision Act had started two weeks before his judgment. 18 The substantial part of the delay was caused by the solicitors attempting to solve the proceedings amicably. By the time that course had failed the time had well and truly expired for the commencement of proceedings. Although the latter delay was probably contributed to by the difficulty in getting instructions and payment of outgoings, that is not a long period. It seems the plaintiff's situation, particularly including the fact she had substantial debts on credit cards and for travelling back to the Philippines, may have been some explanation as to why rates and the like were not paid over that period. In the circumstances, I propose to extend time. 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 there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."