Wilson v Public Trustee [2009] NSWSC 464

New South Wales Supreme Court

CITATION : Wilson v Public Trustee [2009] NSWSC 464

HEARING DATE(S) : 28/05/09

JUDGMENT DATE : 1 June 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 1 June 2009

DECISION : Paragraph 56

CATCHWORDS : Family Provision. Application by two children who received minimal gifts. Further provision made for plaintiffs. No matter of principle.

PARTIES : Christopher Thomas Wilson and Anor v Public Trustee of New South Wales

FILE NUMBER(S) : SC 5553/08

COUNSEL : Mr L Ellision SC for plaintiffs Miss V Hartstein for defendant

SOLICITORS : Robert Mann for plaintiffs Anthony Lentini for defendant

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

ASSOCIATE JUSTICE MACREADY

MONDAY 1 JUNE 2009

5553/08 CHRISTOPHER THOMAS WILSON and ANOR v THE PUBLIC TRUSTEE OF NEW SOUTH WALES - ESTATE OF THE LATE CORAL MARIE WILSON

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the Late Coral Marie Wilson who died on 27 February 2008 aged 71 years. She was survived by three children, the two plaintiffs Christopher Wilson and Natasha Wilkins and a son Sharne Whitehouse O'Brien. The last will of the deceased 2 The deceased's last will was made on 27 January 2006. By her will she gave gifts of jewellery to her friends and her niece, Julia Tiffen. To the first plaintiff she gave a legacy of $100 and various items of jewellery. To the second plaintiff she gave a legacy of $100 and all her photo albums; and to her third child, Sharne Whitehouse O'Brien she gave a legacy of $100 and a photo. To her sister she gave gifts of jewellery and other personalty. She gave the rest and residue of her property, after payment of liabilities, to those of her grandchildren and great-grandchildren who survive her and reach the age of 21 years. The will specifically states that this provision includes children born after she made the will. 3 The plaintiffs in their applications do not seek to disturb any of the gifts of jewellery and personal effects in the will. The assets of the estate 4 The deceased's unit has been sold and cash available for distribution is $218,160.70. 5 The defendant's costs are in the sum of $22,000 and the plaintiffs' costs are in the sum of $29,250, a total of $51,250. This leaves an estate of $166,910.70. 6 If the provisions of the will had not been disturbed by this application the residuary beneficiaries, of whom there are eleven, would have each taken approximately $15,000 each. They are all children or grandchildren of the second plaintiff. The deceased's sons, the first plaintiff and Sharne Whitehouse O'Brien, have no issue. 7 These residuary beneficiaries are: 1. Kylie Marie O'Brien, aged 29 years, a daughter of the second plaintiff and a granddaughter of the deceased. 2. Michael Stenzel, aged eight years, son of Kylie O'Brien, great grandson of the deceased. 3. Kevin John Stenzel, aged three years, son of Kylie O'Brien, great grandson of the deceased. 4. Alisha Dell Wedlock, age 27 years, daughter of the second plaintiff and a granddaughter of the deceased. 5. Jade Mary Phillips, aged five years, daughter of Alisha Wedlock, great granddaughter of the deceased. 6. Ian James Wedlock, aged 25 years, son of the second plaintiff and grandson of the deceased. 7. Gemmiel Ocean-Scott Wedlock, aged five years, son of Ian James Keppel Wedlock, great grandson of the deceased. 8. Tenika Rose Wedlock, aged three years, daughter of Ian James Wedlock, great granddaughter of the deceased. 9. Jesse Ray Wedlock, age 22 years, son of the second plaintiff and grandson of the deceased. 10. Sharne Lyla Shaw, aged 16 years, daughter of the second plaintiff and granddaughter of the deceased. 11. Joseph John Shaw, aged 14 years, son of the second plaintiff and grandson of the deceased. Family History 8 The testator was born in March 1937. She came from a large family which included 18 siblings, 15 of whom managed to survive childbirth. She had three children, a son Christopher born in November 1955; a daughter Natasha born in May 1962 and a son Sharne born in about 1960. 9 They had an unhappy childhood. Christopher spent some time between 1971 and 1974 at a children's detention centre, and the other two children were separated from the testator in 1971. At that stage Natasha was aged 10 and Christopher was aged 13. There is some doubt on the evidence as to whether she abandoned them or was forced to abandon them by her violent husband. 10 In 1975 Christopher was reunited with the deceased. In 1978 Natasha, who was then aged 16, spent some time at the halfway house and in 1981 she married Ian Wedlock and had three children by him and they moved to Queensland. She had been, along with Christopher, in the care of her stepfather before that time. 11 In 1994 she eventually was reunited with the deceased and for many years before that she believed what she had been told by her stepfather, namely, that her mother and brother had died in a car accident. That had not happened and it was just a story. 12 In 1982 Christopher married Joanne Walker but he separated from her in 1986. In 1987 he married again and that relationship finished in 1989 when he was divorced. 13 In 1990 the second plaintiff separated from her husband and Christopher again re-married. In 1993 Natasha married Bruce Shaw and had two children by him. The deceased attended the wedding. She separated from Bruce Shaw in 1995. In the same year their father died and the deceased started at a further relationship. By 2000 Christopher was in a de facto relationship with Kerry Atfield and Natasha married Stephen Wilkins. 14 In November 2002 the testator made a will in which she gave some modest gifts of personality to Natasha and Christopher but no legacy. 15 In 2005 the deceased's last husband, Jeffrey Wilson, died. Because of events at that time there was a breach between Christopher and his mother for about a year after the death. In September 2005 the testator gave a note to the Public Trustee accusing Christopher and Natasha of being the liars, cheats, thieves and there being no relationship with them, and she said of each of them "I loved him/her very very much". 16 On 27 January 2006 the deceased made her final will and I have already referred to that in detail. 17 Shortly before her death in January various people from the Public Trustee attended the deceased residence, partly to see if she wanted to change her will. She stated she wanted the unit to be kept for 20 years after her death and then to be sold to provide for her grandchildren and great-grandchildren. She said the first plaintiff had upset her by presenting her with a will which directed that her unit be left to her three children, which was not what she wanted at all. 18 A day or two later the testator left things as they were. She died on 27 February 2008 and probate was granted in May of that year. 19 The application was commenced in time in November 2008. Eligibility 20 Both of the plaintiffs are eligible persons. 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." The situation in life of the first plaintiff Christopher Wilson 21 Christopher is 53 years of age and without children. He lives in rented accommodation with Kerry Atfield who he has variously described as his de facto partner or his carer. His financial situation has been disclosed in an erratic manner to the Court, which has not been helped by the lack of any evidence from Kerry Atfield with whom he still lives. 22 His assets seem to include several beds, colour televisions, laptop computers, tables and chairs, a lawnmower and whipper snipper. 23 He has difficulty keeping up with rent and is frequently threatened with eviction. He owes $1,455 for back rent and water. 24 His gross pension is $650 per fortnight plus some additional minor quarterly payments. There are deductions for payments made by Centrelink leaving him with a net figure of $404.20 per fortnight. 25 He owes the State Debt Recovery Office $67, a finance company $8,235, a furniture supplier $5,770 and Cash Converters $350. He has already lost property to Cash Converters because he could not make the repayments. He owes $2900 which he borrowed from a friend before to pay the rent to prevent him being evicted. 26 No doubt he has had some assistance from his partner in meeting his day to day needs. He has been treated for anxiety and depression. He may need a fusion of two vertebrae in his back. He has a cyst on a kidney and a hiatus hernia. 27 His upbringing is a picture of a deprived childhood with violent physical abuse from his father. This included beating a seven year old with a piece of two-by-four timber which led to festering sores from splinters. His father (or stepfather) was a violent alcoholic man. The violence was not only to the children but to the deceased as well. Naturally enough, running away meant he was charged and put in a home for six months until he was 16. 28 Thereafter, having been either abandoned by his mother or her having to leave, he was in the care of his stepfather. During this time he was shot by his stepfather; fortunately it was only a flesh wound and there were no serious injuries although he had to be put into hospital. 29 He was put into the care of a half-way house in Brisbane and stayed there about six months. When he was 19 or 20 he eventually met up with his mother again. He stayed with them for a while and had various jobs in the Hornsby area. 30 He then, not surprisingly, got into more trouble and was charged with a series of armed robberies and assaults and he was sentenced to five years imprisonment, which he spent in various gaols, including Silverwater. His mother would visit him in gaol and he would write to her from time to time. 31 After gaol he went to a halfway house for a while and worked as a builder's labourer and got together with someone at that stage but they only lived together for about eight months and then separated. He described how in his mid-20s he had a breakdown and spent 12 months in the North Ryde and Rydalmere psychiatric centres. He did not have contact with his mother at that stage. He recovered and moved into various relationships, one with a person who in due course committed suicide. 32 Sometime after that he met his first wife and married. During that marriage he damaged his back. He was working at Barker College and fell down some stairs and broke several vertebrae. He said he was in hospital for some months and had some spinal fusions on his back. Since then he has basically been on a pension. I have already mentioned his various marriages and I will not mention those again. He kept in contact with his mother. 33 He referred to the fact that after her last partner died she seemed to turn against him and started to talk about him as a stepchild. There was a breakdown in the relationship of 12 months. He became worried about it and made an approach and got back with her because he was worried about his mother. He helped look after her when she was sick. 34 It does seem to me that the plaintiff had a horrendous childhood and his life has been chaotic ever since as a consequence. 35 I do not regard in the context of that history the break in 2005 of a year of any great consequence. The break was probably the reason for the deceased' outburst in 2005 against her children. The evidence of Beryl Ruth Lees, the deceased sister, gives extensive support to the terrible treatment that the plaintiff received from his father. The situation in life of the second plaintiff Natasha Wilkins 36 Natasha is 47 years of age, and is separated from her husband. She has the custody of her 14 year old son, Joseph. 37 She lives in rented accommodation for which she pays $230 per week. She has been retrenched and is in receipt of a pension of $766.40 per fortnight. She is suffering from such depression that she currently cannot work. She has credit card debts of about $8,000 and school fees to pay for in the sum of $70 per week. Her son shows some aptitude and goes to a private Catholic School and she wishes to try and keep him at that school. 38 She, like her brother, suffered from being in an abusive household. At one stage she suffered burns to her leg and was left in hospital for months. She was abandoned or left by her mother at 10 years of age. She had a further chaotic time with her father till she was put in a home by Family Service when she was 12. She had her first child when she was 17. 39 She re-met the deceased after she thought she was dead for many years, and that was in 1984. She lived in Sydney from 1986 to 1990 and she saw her mother frequently. She then moved to Queensland and it was hard to get to Sydney particularly as she was separated. She re-married in 1993 and continued contact with the deceased with occasional visits to Sydney. 40 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are the other beneficiaries in the estate. Sharne O'Brien 41 Sharne has been notified of the proceedings. He has filed no evidence and made no claim. In these circumstances, the Court can assume he does not want the Court to take into account his financial circumstances and relationship with the deceased. Grandchildren and Great Grandchildren 42 None of these are eligible persons. Some have not filed evidence. In respect of those who have filed evidence, the following emerges: 43 Alicia Wedlock is 28 years of age, single, has a child of 6 years and is pregnant again. She lives in a Housing Commission property. She had no contact with her mother but did enjoy the deceased's company. She had a traumatic childhood but this is only relevant to her present situation in life. She has casual work earning $21 per hour. She received a part pension for expenses of $1,250 per fortnight. She finds it hard to make ends meet. 44 Kylie Marie O'Brien is 29 years of age, married with a husband for whom she has to care. She has two children. She has a car on finance and a debt of $8,808. She receives the pension and pays rent of $303 per week and owes $4,290 in back rent. She had a relationship with the deceased. Her childhood was also traumatic including sexual assault. 45 Jesse Ray Wedlock is aged 22 years. He is in a defacto relationship and has no children. He receives a pension of $520 per fortnight and his partner receives $320 per fortnight. They have a car and they have debts of $4,000. They also had had to pawn their goods in order to make ends meet. He also had a relationship with his grandmother. 46 Sharne Lyla Shaw is 16 years of age, un-married and does not have any children. She does not live with her mother. She has a partner who earns $300 to $500 per week. Their rent is $300 and she has debts of about $4,000 which require repayment. She now is back with Centrelink but the amount does not appear in the evidence. She used to see her grandmother when she was young and had a relationship with her. She ended up in State Care for a period. 47 The other residuary beneficiary Ian James Wedlock has not provided any evidence in respect of himself or his children. 48 It is necessary to see how the plaintiffs have been left without adequate and proper provision for their maintenance, education and advancement in life. 49 They both have debts and the second plaintiff has the care of her young son who will need some years of further education at a cost of about $11,000. She needs funds for private medical treatment and some household goods. 50 The first plaintiff also has debts to repay but his responsibilities are not as much as those of his sister. 51 On the evidence before me, I do not accept the deceased's statements about her children made at the time of the will. There may have been some difficulties but plainly she had an over-riding duty to them, particularly giving their upbringing and disjointed life. 52 Although the matter is at a different level, the following comments of Holland J in Kleinig V Neal (1982) 2 NSWLR 532 at 540 are apposite: "If it is a case of parent and child, another circumstance is the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the Court considers that the character or conduct of the child has been such as to disentitle the child to any or further benefit from the parent, it may refuse the child's claim." 53 This was referred to with approval in Palmer v Palmer (2005) NSWCA 361. He also referred to Walker v Walker (unreported NSWSC 17 May 1996) in these terms: "I agree, generally, with these remarks and would add that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act. In Walker v Walker Young J said at [30] - [31]: '…I reject the approach that all an applicant under this Act [ Family Provision Act 1989 (NSW) has to do it to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at 19.' I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of 'eligible person' in s 6 (1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds." 54 In this case it is a small estate and each plaintiff should have a legacy. 55 Kylie, Alisha, Jesse and Sharne each have demonstrated that they have urgent needs which will not be alleviated by their mother, the second plaintiff. I think provision can be made for them and their children for whom they have responsibility. 56 The orders I make are: 1. that first and second plaintiffs each receive a legacy of $60,000. 2. that the residue of the estate he held to be shared equally between: (a) Kylie Marie O'Brien. (b) Alisha Dell Wedlock. (c) Jesse Ray Wedlock. (d) Sharne Lyla Shaw. 3. I order the plaintiffs' costs on an ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate. 4. Interest shall run under the Act if the legacies are not paid within one month from today's date. 5. The exhibits are to be returned. **********