Shirt Estate - Shirt v Dean & Anor [2010] NSWSC 435

New South Wales Supreme Court

CITATION : Shirt Estate - Shirt v Dean & Anor [2010] NSWSC 435

HEARING DATE(S) : 20 April 2010

JUDGMENT DATE : 20 April 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 20 April 2010

DECISION : Plaintiff to receive legacy of $400,000.

CATCHWORDS : SUCCESSION – FAMILY PROVISION – Plaintiff only surviving child of deceased – Plaintiff and deceased estranged for twenty-eight years – whether estrangement negates Plaintiff's claim – whether Plaintiff left without adequate provision.

LEGISLATION CITED : Family Provision Act 1982 (NSW) – s 7 Succession Act 2006 (NSW) - s 11(3), Schedule 1

CATEGORY : Principal judgment

Richard Albert Shirt (Plaintiff) PARTIES : Narelle Anne Dean (First Defendant) Charles Albert Sugar (Second Defendant)

FILE NUMBER(S) : SC 2008/282170

COUNSEL : S. Docker (Plaintiff) R.J. Brender (Defendants)

SOLICITORS : Wrights Legal (Plaintiff) Kennedy & Cooke (Defendants)

08/282170 L.J. Shirt Estate: Shirt v Dean & Anor

JUDGMENT – Ex tempore

20 April , 2010

1 The Plaintiff is the only surviving child of Lola Jean Shirt, who died in 2007 leaving a will which made no provision for him. The Plaintiff now seeks an order for his maintenance and advancement out of the estate, pursuant to s 7 of the Family Provision Act 1982 (NSW), which continues to apply by reason of s 11(3), Schedule 1, of the Succession Act 2006 (NSW). 2 Probate of the deceased's will, made in October 2006, was granted to the Defendants, Mrs Dean and Mr Sugar, to whom the estate was left in equal shares. 3 The assets of the estate have been realised and the proceeds, amounting to some $850,000, have been distributed to the Defendants. However, the Defendants have undertaken to pay out of the assets distributed to them any provision for the Plaintiff which the Court may order in this application. 4 The Plaintiff's costs of these proceedings are estimated at about $37,000, while the Defendants' costs are estimated at about $45,000. 5 The deceased was ninety-one years old when she died. She was married once, to Reginald Shirt, and there were two children of the marriage: the Plaintiff, Richard, born in 1942, and Brian, born in 1945. Reginald died in 1980. Brian died in 1999. The only surviving sibling of the deceased is Shirley Maher, now eighty-one years of age. The deceased's only surviving grandchild is the daughter of Richard. There is no evidence that she was ever dependent on the deceased. 6 As I have noted, the deceased's will leaves the whole of her estate equally between Mrs Dean and Mr Sugar, neither of whom was related to her or dependent upon her. There is no dispute that Richard is the only eligible person for the purposes of the Family Provision Act. 7 Richard had no contact with the deceased for the last twenty-eight years of her life. This estrangement explains why the deceased decided to make no provision at all for her only surviving child and to leave her estate to two friends, that is, the Defendants. 8 In a document dated 8 May 2000, entitled "Statement of Testamentary Intention", the deceased explained why she had omitted Richard from a will which she had made that day. She said that Richard had not provided any financial or emotional support to her and that the last time she had seen him was in 1976. She attributed Richard's lack of any contact with her to complete indifference, or selfishness, on his part, rather than to any other particular event or circumstance which precipitated a break-down in their relationship. 9 In a statement made on the same day as her last will, the deceased said that she had considered her moral and legal obligations to Richard under the Family Provision Act and considered Richard to have no claim on her testamentary bounty "… because I have not had any contact with him for 28 years and he has never expressed any desire to have any contact with me". 10 Richard's evidence, which is, to some extent, corroborated by the deceased's only surviving sibling, Shirley Maher, is that his relationship with his mother, father and brother was fairly normal and happy until an accident which occurred in 1958. Richard was then fifteen years old and shared a bedroom with Brian. One night when the lights had been switched off, the brothers were skylarking in the dark. Brian threw a comb at Richard, who threw it back at him. Tragically, the comb struck Brian in the right eye, permanently blinding him in that eye. 11 From that time onwards, according to Richard, his mother's attitude changed. She never forgave him for blinding Brian and constantly criticised and abused him. The relationship between his father and mother also deteriorated. It seems that Richard identified more with his father and that his mother favoured Brian at Richard's expense. 12 Richard left school in 1962 and had a variety of jobs. He said that his mother was constantly criticising him and blaming him for Brian's accident. He left home and went to Adelaide to pursue a career in baseball. He said that he rang home regularly, but that his mother kept up her criticisms. Eventually, his mother came to Adelaide and brought him back to Sydney with her. According to Richard, the family relationship did not improve and he left home in 1965 to go back to Adelaide to continue his career in baseball. 13 In 1969 Brian had a water-skiing accident, which left him a quadriplegic. Richard came to Sydney to see him in hospital and in 1970 Brian came with his mother to visit Richard in Adelaide. 14 In 1970 Richard moved back to Sydney, but did not live at home with his parents. His relationship with his mother continued to be acrimonious. He says that in about 1978, Brian told him that the deceased had said that she would not continue looking after Brian if Richard kept in touch with him. Thereafter, Richard had little contact with Brian. 15 In 1980, Richard's father died. Although Richard had visited him in hospital and had asked to be kept informed about his condition, he says that his mother did not tell him when his father died and that he did not find out until it was too late to go to his father's funeral. 16 Richard says that he rang the deceased several times during the 1980s and the 1990s and was always rebuffed in his attempts to re-establish contact. It was in these circumstances, he says, that the estrangement between himself and his mother became complete and lasted until she died. 17 Richard's aunt gives evidence that the deceased was a person of difficult temperament who constantly blamed Richard for Brian's accident, and from 1970 onwards repeatedly said that she did not know what Richard was doing, did not care and did not want to have anything to do with him. 18 It is impossible at this time to make a finding as to whether Richard's explanation of the estrangement with his mother is entirely accurate, or whether his mother's perception of the explanation is closer to the truth. From my observation of Richard in the witness box, it is clear that he is still deeply scarred emotionally by his family history and by the break-down in his own relationships later in life, which he attributes to that family history. 19 What is clear is that the deceased did not accuse Richard of any particular act of dishonesty, violence or cruelty towards her, which she regarded as the cause of, or justification for, their estrangement. Rather, the deceased seems to have attributed the estrangement to what she regarded as an inherent defect in Richard's character. 20 In my view, however, the break-down in the deceased's relationship with Richard was attributable, in large part, to the deceased's own character and state of mind. I accept that Brian's accident coloured her attitude to Richard and permanently soured her relationship with him. 21 I do not say that Richard was blameless in the estrangement and that he could not have done more to mend relations with his mother. However, I bear in mind that his adult life has been marked by a succession of difficulties and tragedies. These difficulties did not make it easy for him to be as conscientious a son as he might have been in other circumstances. 22 It is now necessary to examine Richard's present position in life. He is sixty-seven years of age and in reasonably good health, although he needs knee reconstruction surgery. He has no formal qualifications or trade, but has for many years been employed as secretary/manager of the South West Rocks Country Club. He ceased that employment on 30 June 2009 and he has been receiving the pension since then. It is highly unlikely that at his age Richard will find other permanent employment. 23 Richard's assets comprise a house valued at about $270,000, which is unencumbered, since he applied the whole of his superannuation benefits to discharging the mortgage. He has some $1,800 in cash at the bank and a car worth about $12,000. He has credit card and other debts, totalling about $6,500. 24 Richard's only income is from the pension, which is about $350 per week. He lives alone and has no dependants. He would like to be able to assist his adult daughter financially, but realises that this is not a factor in assessing his own needs for the purposes of his claims from the deceased's estate. 25 Richard says that his needs are as follows. His weekly expenses are $900, which includes a sum of $200 per week for gambling on the poker machines. Richard admits that he has a gambling problem and intends to seek help. He says that he now does not gamble regularly. 26 Richard's house, which is about seven years old, presently needs some minor repairs, the cost of which is about $5,700. The house will require maintenance and repairs if he continues to live there for some time. Richard says that his knee replacement surgery will cost about $8,000 to $9,000 and, while he has health insurance, it will not cover the costs completely. Richard also says that he would like to be able to travel overseas to watch sports in which he is keenly interested, namely, the British Open, the US Open and the 2012 Olympics in London. The cost of that travel is about $50,000. 27 I now examine the position of Mrs Dean and Mr Sugar. Mrs Dean became a close and supportive friend of the deceased in the last three years of her life. I accept that Mrs Dean did a great deal to make those last years enjoyable for the deceased, who was otherwise lonely and infirm. Mrs Dean and her husband manage an apartment block. She does not say that she is in necessitous financial circumstances. 28 Mr Sugar first met the deceased in 1969 when he courted her niece. He kept in touch with the deceased regularly thereafter through occasional visits and Christmas cards. After his semi-retirement in 2002, Mr Sugar would visit the deceased about once a month for a cup of tea and a chat. Mr Sugar does not say that he is in necessitous financial circumstances. 29 It will be seen, therefore, that while Mrs Dean and Mr Sugar no doubt provided the deceased with emotional support and social contact, they were by no means dependent upon her and they have no great claim on her testamentary bounty. I think that it is fair to say that the deceased left her estate to them because she did not want to leave it to Richard and she had no one else in her life, beside Mrs Dean and Mr Sugar, whom she regarded with any fondness. 30 I now come to a consideration of the factors which are relevant to decide Richard's claim. First, has Richard been left by the deceased without adequate provision for his proper maintenance in life? In my opinion, the answer is yes. It is true that Richard owns his own home, but his income from the pension scarcely covers half of his living expenses, even if he were to give up gambling completely. Apart from the gambling, Richard's lifestyle could not be described as lavish or extravagant. Further, he will not have sufficient from his income to pay for repairs and maintenance to his home and for a knee operation, without financial anxiety. He will not easily be able to afford a new car when his present car has to be replaced. He will not be able to afford to travel to enjoy the sports which have been so important in his life. 31 Bearing in mind the size of the deceased's estate and the weakness of the Defendants' claim on the testators' bounty, I am of the view that Richard has been left without adequate provision for his proper maintenance. In regard to what maintenance is "proper", I have taken into account the estrangement between Richard and the deceased. I do not regard it as disqualifying Richard from any consideration of testamentary bounty. For the reasons I have given, I am of the view that the estrangement was one due largely, although not entirely, to the deceased's attitude to Richard. 32 Secondly, what, if any, provision should be made for Richard? Mr Docker of counsel, who appears for Richard, says that a lump sum legacy of $600,000 should be provided. Mr Brender of counsel, who appears for the Defendants, says that, if any provision at all is to be made, it should be no more than $80,000. 33 I accept that, while Richard is secure in having a roof over his head, he has no financial ability to provide more than a very basic level of comfort for himself now and into the foreseeable future as he gets older. There is no one upon whom he can rely to assist him and to take care of him. Unless he is provided with some financial buffer, he will be reliant upon social services or upon the proceeds of selling his house to maintain himself for the rest of his life. 34 Richard's estrangement from his mother for such a long time, however caused, and the consequent independence which he has displayed throughout his life, weakens his claims against the estate. Nevertheless, in all of the circumstances, but particularly in view of the fact that Mrs Dean and Mr Sugar have relatively slight claims compared with Richard's, I consider that Richard should receive a lump sum legacy of $400,000. I order each of the Defendants to pay to Richard the sum of $200,000, in satisfaction of the legacy which would otherwise have been paid out of the estate. 35 I would have ordered the Plaintiff's costs on the party/party basis to be paid out of the estate, had the estate not already been distributed to the Defendants. In the present circumstances, I order each of the Defendants to pay one half of the Plaintiff's costs on the party/party basis. I need make no order about the Defendants' costs as they have already received their shares of the estate. – oOo –