New South Wales Supreme Court CITATION : Durham v Durham [2010] NSWSC 389 HEARING DATE(S) : 29 April 2010 JUDGMENT DATE : 5 May 2010 JUDGMENT OF : Ball J DECISION : Proceedings dismissed. Costs of the parties be paid out of the Estate. CATCHWORDS : SUCCESSION - Family Provision - Application for extension of time - Application by adult son Family Provision Act 1982 LEGISLATION CITED : Family Provision Act 2005 Testator's Family Maintenance and Guardianship of Infants Act 1916 CATEGORY : Procedural and other rulings Davison v Staley (NSWSC, Bryson J, 12 June 1986, unreported) Goodman v Windeyer (1980) 144 CLR 490 CASES CITED : Massie v Laundy (NSWSC, Young J, 7 February 1986, unreported) Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11, (2005) 221 CLR 191 Peter Robert Durham (Plaintiff) PARTIES : Bruce Albert Durham (First Defendant) Winifred Joyce Durham (Second Defendant) Paul Anthony Durham (Third Defendant) FILE NUMBER(S) : SC 2009/289688 COUNSEL : Mrs M Bridger (Plaintiff) J E Armfield (Defendant) SOLICITORS : Williams Woolf & Zuur (Plaintiff) Burridge & Legg (Third Defendant) - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST BALL J 5 May 2010 2009/289688 PETER ROBERT DURHAM v BRUCE ALBERT DURHAM & ORS JUDGMENT 1 HIS HONOUR: This is an application pursuant to s7 of the Family Provision Act 1982 (FPA) by an adult son that provision be made for him out of his father's estate together with an application for an extension of time in which to make that application. 2 The Plaintiff, Peter Durham, was born in 1949. He has two brothers, John, who was born in 1947, and Paul, who was born in 1956, and a sister, Dianne Dingwall, who was born in 1944. 3 In 1968, the Plaintiff's father bought a property at Collaroy. The Plaintiff and his brother Paul lived with their parents at that property for a time. In 1976 the Plaintiff moved out of home and lived at Kirribilli with a de facto partner until 1980, when he returned to live with his parents. 4 In April 1987, the Plaintiff's father made his last Will. The deceased had only one substantial asset, which was the property at Collaroy. He left a life estate in that property to his wife and the residue to be divided equally between his four children. 5 The Plaintiff's mother, Mary Durham, died in 2008. She made a Will in June 1996 giving the Plaintiff her whole estate. In her Will, she stated that she had made no provision for her other 3 children as she considered they were comfortable and that the Plaintiff had a greater need for provision. In fact, Mary Durham left no estate. 6 During the time that he lived with his parents, the Plaintiff worked full time in various lowly paid jobs until October 2007, when he took a voluntary redundancy. When the Plaintiff was home, he assisted in the care of his parents. There is some dispute about the level of care he gave to his father. However, I am satisfied that he did shopping for his parents, some general household work, some cooking and assisted in the care of his father by, for example, changing and sterilising his kidney bag, helping him back into bed on several occasions after a fall at night and driving him to medical appointments on weekends. During the time the Plaintiff's father was alive, the Plaintiff paid rent of $20 per week except for a period of about 12 months when he was unemployed. He also contributed on occasions to household expenses such as gas, electricity, water rates and the like. After his father's death, the Plaintiff continued to look after his mother and continued to contribute towards household expenses. However, he ceased to pay rent. 7 The Plaintiff says that, on a number of occasions before his father's death, his father asked him to look after his mother following his father's death. The last of those occasions was said to be at Concord Hospital the night before his father died. I accept the Plaintiff's evidence about these conversations. It was natural for the Plaintiff's father to express some concern about the welfare of the Plaintiff's mother in the event of the father's death. Having regard to the circumstances, it was also natural for the Plaintiff to respond that he would do so. The Plaintiff readily conceded that that is something that he would have wanted to do irrespective of his father's request. I do not think it was surprising that the Plaintiff did not raise those conversations with his siblings in circumstances where that was something that he was proposing to do in any event. 8 The Plaintiff first sought legal advice in relation to a possible claim under the Family Provision Act in 2005. The Plaintiff did not investigate the possibility of a claim further until February 2009 because, he says, he was preoccupied with looking after his mother. In February 2009, he was advised that any claim he made would have to be against he Estate of his father and that it would be necessary to make an application for an extension of time. 9 The current value of the Collaroy property is approximately $430,000 to $440,000, from which it is necessary to deduct the costs of sale (and any legal costs the Estate must pay) to determine the net distributable value of the Estate. The Plaintiff's costs of the proceedings are $25,500 and the Defendants' costs are $23,000. 10 The Plaintiff has approximately $171,400 in savings and superannuation of approximately $57,000. He receives $370 per fortnight by way of sickness benefits from Centrelink and owns a 2006 Holden Vectra motor vehicle. 11 The Plaintiff's sister is separated from her husband. She currently works as a sales manager with a clothing store where she earns a salary of $64,000 per annum, although she says that her plan is to retire at the end of this year. Her principal asset is a half share in a house at Leichhardt where she lives. Her half interest is valued at approximately $400,000. The other half interest is owned by her son who bought it from his father following his parents' separation. The Plaintiff's sister also has approximately $183,000 in various forms of saving. 12 The Plaintiff's older brother, John, was discharged from the NSW Police Force in September 1997 due to health issues. He currently receives a police pension of $1,112.20 a week which is indexed. He is married and lives with his wife at Davistown in the family home which is worth approximately $460,000 to $480,000. His wife currently works and earns approximately $480 per week. He owns land at Stroud, the net value of which is approximately $165,000. He proposes to give that land to his son. He and his wife have other savings which, after deducting liabilities, amount to approximately $68,000. They own 3 motor vehicles with a total value of approximately $40,000. 13 The Plaintiff's younger brother, Paul, worked as a postman for most of his working life. He worked full time until December 2007. From December 2007 to July 2008 he worked approximately 10 hours per week on a casual basis. Since April 2009, he has been receiving a disability support pension of approximately $950 per month. He is married with a son who is nearly 6 years old. In addition to his disability support pension he receives each month approximately $400 as a family tax benefit from the Family Assistance Office and a parenting payment from Centrelink of $818 per month. He and his wife own a house worth approximately $320,000 in which they live and he has other savings (consisting largely of superannuation) of approximately $323,000 together with a motor vehicle and tractor worth approximately $23,500. 14 All of the children had good and close relations with their parents. 15 The first question is whether an extension of time should be granted under s 16(2) of the FPA. An extension under that section may only be granted, relevantly, if sufficient cause is shown for the application not having been made within the prescribed period: s 16(3). Assuming that condition is satisfied, the Court has a discretion to grant an extension "having regard to all the circumstances": s 16(2). Matters that the Court should take into account include whether the beneficiaries under the Will would be unacceptably prejudiced if time were extended and whether there has been unconscionable conduct by any of the parties in connection with the delay: Massie v Laundy (7 February 1986, unreported, Young J). 16 I am satisfied that the condition set out in FPA s 16(3)(b) has been satisfied in this case. The Plaintiff is an unsophisticated person who did not understand until June 2009 that his claim, if he had one, was against his father's Estate and not his mother's. Having regard to the circumstances, I think that was an understandable mistake. 17 There is no suggestion that any of the beneficiaries have engaged in unconscionable conduct. However, I do not think that I should grant an extension in this case, since an extension would cause serious prejudice to the beneficiaries other than the Plaintiff. 18 The facts of this case are similar to those in Davison v Staley (21 August 1986, unreported, Bryson J). In that case, the Testator owned two properties. He was survived by his wife, two sons and two daughters. He left his wife a life estate in the two properties and the residue of one property to one son and the other to the other son, on condition that each son pay a nominated daughter the sum of £50. The Testator was survived by his wife for approximately 30 years. Following the death of the wife, one of the daughters brought an application under the Testator's Family Maintenance and Guardianship of Infants Act 1916, the predecessor to the FPA. That Act required an application to be made within 12 months from the date of the grant of probate, but gave the Court a discretion to extend time. On a separate hearing in relation to the question whether time should be extended, Bryson J declined to do so. His Honour placed considerable emphasis on the fact that, had the application been made within time, the prospects of its succeeding, having regard to the interests of the widow, were very small. Bryson J expressed a reluctance to grant an extension of time which may have had the effect of improving her position in comparison with the position she would have been if she had made an application within time. 19 Mrs Bridger, who appeared for the Plaintiff, sought to distinguish Davison on the basis that the legislation with which Bryson J was concerned only permitted the Court to take into account the circumstances which existed at the time of the Testator's death and those that were reasonably foreseeable at that time. In contrast, s 9 of the FPA requires the Court to consider the position at the time it is determining whether or not to make an order. 20 In my opinion, however, this distinction counts against the Plaintiff not in his favour. If an application had been made within time, the facts that the Court would be considering would be very different. The Plaintiff's mother would still have been alive and the Court would have to have considered the Plaintiff's claim in light of her position. Moreover, the extent to which the Plaintiff would have cared for his mother, to the extent that that is relevant, would not have been known. Nor would the relative financial positions of the children. If an extension of time is granted the Plaintiff would receive a very substantial benefit (and his siblings a corresponding detriment) because of the evidence that he is now able to adduce. 21 Even if I were prepared to grant an extension of time, I am not satisfied that an order should be made in the Plaintiff's favour in this case. 22 Whether an order should be made raises two questions. The first is whether the Plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. The second is, assuming he has, what provision, if any, should be made for him: Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. 23 As McClelland CJ in Eq pointed out in Re Fulop Deceased (1987) 8 NSWLR 679 at 679, the word "proper" in FPA s 9(2) connotes a standard that is appropriate to all the circumstances of the case. Those circumstances include: "(a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff; (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased." (ibid) 24 The words "adequate" and "proper" also carry with them the notion that the provision from the Estate which is made for the Plaintiff is inadequate for his maintenance etc when considered by reference to "current social conditions and standards" (to use the words of Gibbs J in Goodman v Windeyer (1980) 144 CLR 490 at 502) - or, to put the point another way, that the testator has failed to live up to current social conditions and standards by not making a provision or a greater provision for the Plaintiff. The mere fact that a just testator might have considered a particular provision as being desirable or appropriate is not sufficient. Sometimes, this sense that is carried by the words "adequate" and "proper" is expressed in terms of a moral obligation on the part of the testator to make a provision or greater provision for the Plaintiff: for discussion, see Vigolo v Bostin [2005] HCA 11, (2005) 221 CLR 191. 25 In this case, the Plaintiff essentially points to three factors which he says demonstrates that the provision made for him was inadequate. They are: (a) the direct contribution that he made to the welfare of his father; (b) the contribution that he made to the welfare of his mother; and (c) the fact that, unless an order is made, and in contrast to his siblings, he will not be able to remain in his current home and is likely to have difficulties buying alternative accommodation. 26 I do not think that these considerations are sufficient to demonstrate that the provision made for him was inadequate. Although there is no dispute that the Plaintiff provided assistance to his father while he was living at home and his father was alive, that assistance was provided in a context which benefited the Plaintiff as well. The Plaintiff received subsidised accommodation and obviously enjoyed a close relationship with his parents. His father obviously benefited from that relationship. But his father had good relations with his other children and it would be natural that, in those circumstances, he would want to make some provision for them as well. 27 Mr Armfield submitted that I should place no weight on the second consideration. He pointed out that s9(3) of the FPA provides that, in determining what provision (if any) ought to be made in favour of an eligible person, the Court may have regard to any direct or indirect contribution made by the eligible person to the welfare of the deceased person. It says nothing about a contribution to the welfare of the deceased person's spouse. I do not accept that submission. Section 9(3) is concerned with the exercise of the Court's discretion. It is not concerned with the question whether the Plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. In any event, s9(3)(d) makes it clear that the Court should not necessarily exclude other considerations. In my opinion the fact that a beneficiary was likely to look after the testator's wife on the testator's death is a matter that can be taken into account. How much weight is to be given to that factor depends on a variety of circumstances including whether that conduct is a result of the testator's request and the amount of care that is given. 28 However, I do not think that consideration is decisive in this case. I accept that the testator asked the Plaintiff to look after his mother. But that is something that he would have done in any event. The Plaintiff was compensated, at least in part, by the fact that he did not pay rent. A testator could consider in those circumstances that greater provision should be made for the Plaintiff than for his other children. But consistently with community standards I think it would also be open to a just testator to think that the Plaintiff had derived benefits from living at home, that his Estate was small, that he had a loving relationship with his other children and that it was appropriate that they also benefit under his Will. 29 As to the third matter raised by the Plaintiff, it is true that, in the absence of an order, the Plaintiff will have to look for alternative accommodation and that his siblings are not placed in that position. But, as I have said, the Estate is small and none of his siblings is well off. One of them has a dependant child. All of them had a good relationship with their father. In those circumstances, I do not think that the testator was required to do more than he did for the Plaintiff. 30 In those circumstances, the proceedings should be dismissed. My current view is that the costs of the parties should be paid out of the Estate on an indemnity basis and, subject to what I say below, I make that order. 31 I direct that in the event that either party seeks a costs order other than the one which I have made, that application should be made by arrangement with my Associate and not later than 12 May 2010. I direct that the order not be entered before 19 May 2010. ********** 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. 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