New South Wales Supreme Court CITATION : Rogers v Roe (Estate of the Late Irene Clipsham) [2010] NSWSC 1141 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 29/09/2010 JUDGMENT DATE : 1 October 2010 JURISDICTION : Equity Division JUDGMENT OF : Macready AsJ at 1 EX TEMPORE JUDGMENT DATE : 1 October 2010 1. In lieu of the provision of clause 3 of the will the estate of the deceased be held for the plaintiff and the defendant equally. DECISION : 2. The plaintiff's costs on an ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. 3. I decline to order that the plaintiff's costs be on an indemnity basis. CATCHWORDS : Family Provision - Claim by a daughter left out of will - Very small estate - Held Estate should pass to both daughters equally LEGISLATION CITED : Family Provision Act 1982 (NSW) CATEGORY : Principal judgment Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Ellis v Leeder (1951) 82 CLR 645 Foley v Ellis [2008] NSWSC 288 CASES CITED : Palmer v Dolman [2005] NSWCA 361 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Wentworth v Wentworth, estate of G M Wentworth (Unreported, NSWSC, Bryson J, 14 June 1991) Wheatley v Wheatley [2006] NSWCA 262 PARTIES : Plaintiff - Elizabeth Helen Rogers Defendant - Susan Irene Roe FILE NUMBER(S) : SC 2010/73931 COUNSEL : Mr K Odgers for plaintiff Mr JA Trebeck for defendant SOLICITORS : Webb and Boland Lawyers for plaintiff Mooney & Kennedy Solicitors for defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MACREADY AsJ FRIDAY 1 OCTOBER 2010 2010/73931 ELIZABETH HELEN ROGERS V SUSAN ROE JUDGMENT Ex Tempore 1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Irene Rose Clipsham who died on 23 March 2009. The deceased was survived by her three children. There are two daughters who are parties in the proceedings. Her son has been notified of the proceedings and makes no claim. Last will of the deceased 2 The last will of the deceased that was made on 26 May 2008 under which she appointed her daughter as an executor and gave her the whole of the estate. Of her daughter Elizabeth, the plaintiff in these proceedings, she said, "I make no provision in my will for my estranged daughter Elizabeth Helen Rogers, whose marriage and subsequent behaviour has brought nothing but disgrace and shame on her entire family" Assets in the estate 3 The net value of the estate is $138,781.70. Administration costs of $3,000 reduces this to $135,781. 4 The plaintiff's costs are estimated at $42,379. The defendant's costs are estimated at $29,788, the total of $72,167. This leaves the distributable estate with the grand sum of $63,614. Family history 5 The defendant was born in October 1948 and the plaintiff in December 1949. The parents lived on a farming property near Tamworth. For most of their life they were sheep farmers. It was in 1971 that the plaintiff moved from Tamworth to Sydney. Similarly, the defendant also moved to that city. The plaintiff spent some time overseas from 1970 to until 1979 when she returned to Australia. 6 In late 1981 or earlier 1982 she started a relationship with a man called Grahame Rogers. He was introduced to the family. Later that year, or early the following year, the plaintiff was shocked, she said, to find out that her friend was charged with an armed robbery that led to him being sentenced to a term of imprisonment. 7 The plaintiff and the defendant resided together at Winston Hills until early 1987. In August of 1984 the plaintiff decided that she was still going to marry Grahame Rogers, who was at this stage incarcerated at Goulburn Gaol. She did marry him and her parents and her sister Sue attended and assisted. Her parents, naturally, expressed great dismay to Elizabeth about what she was doing, suggested she was doing the wrong thing and said it was a silly decision. However she went ahead with it. 8 The plaintiff had a son, Andrew, in January 1986. In April 1987 things became difficult. There was an attempt on Grahame Rogers' life in prison and this created an enormous amount of publicity. It was necessary for the police to guard both the plaintiff and the defendant at the home at Winston Hills and there was a barrage of media publicity. Following a confrontation between the plaintiff and the defendant she left that home. 9 In mid 1987 Grahame Rogers was released from gaol. In December of 1987 the plaintiff was beaten up by her husband, Grahame Rogers, and a message that this had happened was passed, apparently, by a social worker through to the plaintiff's father in Tamworth. He drove down to Sydney and collected Elizabeth and her son and took them back with him to Tamworth to the family farm. They spent Christmas there and at that time Elizabeth expressed her view to her parents that she was going to divorce her husband. 10 Because there was need for accommodation for other people Elizabeth and her son moved into Aunty Phyllis' house in Tamworth to stay over the Christmas period. 11 On New Years Eve there was a confrontation which occurred in the house between the plaintiff and her parents and Sue. I will come back to deal with that a bit later. This, in fact, was the last time that the plaintiff ever saw her parents. 12 About three or four months later the plaintiff was in the area up at Tamworth and rang up and asked to collect come belongings from the family farm. She was told that she and her son were very welcome to come whenever they liked but not with Grahame Rogers. They in fact did not come. This was the last time that Elizabeth ever spoke to her parents. 13 In September 1988 the deceased's husband was diagnosed with leukaemia and the sister, Sue, moved toe Tamworth to assist her mother. The father died on 26 October 1988. He was quite lucid until he died and he gave instructions not to inform the plaintiff of his illness. 14 In February 1989 the plaintiff had a second child by Grahame Rogers. Once again, on 1 November 1988 Grahame Rogers was sentenced to minimum term of 10 years gaol. 15 In March and April 1990 the deceased sold the family property which had passed to her from her husband. Sue purchased a property at Winston Hills, for $240,000. $125,000 was a gift from the deceased to her and $125,000 was a contribution by the deceased to her for the purchase of this property. This was how she was able to afford the house. 16 The deceased also at that stage gave to her son Paul $125,000. 17 There had by this stage been no contact for three years with the plaintiff. Both the deceased and Sue moved from Tamworth to Sydney and lived there. The deceased lived with Sue until the deceased entered an aged care facility in 2008. 18 In 1999 Grahame Rogers was released from gaol and he met up again with the plaintiff and they moved to Mildura, hopefully so there could be some family life. They were there for three months when he was once again sent to gaol. This time the plaintiff did in fact, while he was in gaol, divorce him. 19 In May 2008 the deceased entered an aged care facility, in which she died, as I mentioned, on 23 March 2009. Probate was granted to the defendant on 16 September 2009 and the summons was filed on 23 March 2010, being the last day for the application. Eligibility 20 The plaintiff is an eligible person, being a daughter of the deceased. In applications under the Family Provision Act. The High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 had set out a 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, eduction 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 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 plaintiff's situation in life 21 The plaintiff is 60 years of age, single with two children who are partly dependent upon her. She also has in her rented home at Hamilton a person for whom she is the carer. 22 Apart from the fact she has cared for him for six years and his situation is getting worse little is known of the relationship with him. There is nothing to suggest that she is actually cohabitating with him in the sense of having a relationship with him. Elizabeth receives a carer's allowance of $49 per week for this work. She works as a hospital assistant grade 2, and is a part-time chef. Her total income is $2,612 per month and her expenses $2,545 per month. She has savings of $4500, superannuation of $9,000 and no liabilities. She has, in fact, effectively no assets. 23 The critical focus in this case has been upon the relationship between the plaintiff, her parents and her sister. I accept that Grahame Rogers' background was not known to the plaintiff when she first met him. Part, at least, was known when she decided to marry him when he was in gaol. Although her parents expressed to her that she was foolish to marry such a person they supported her, attending the wedding and participating such as providing the cake and a wedding dress. 24 What produced the breakdown was the events of December 1987. In December 1987, as I have said, Rogers bashed the plaintiff and her father drove down to Sydney and brought her back, with her child, to Tamworth. 25 The basis for the confrontation arose from the fact that Elizabeth had told her parents when she was staying there that she was going to divorce Rogers. The defendant's account is that the plaintiff said: "I am going to divorce Grahame. I am finished with him. I will have no further contact with him." The deceased is reported to have said: "You have lied to us before. Do you mean it this time?" 26 Elizabeth said, "Yes, I'm definite. No more." She then went to stay in Tamworth with Aunt Phyllis, because of the lack of accommodation on the farm. Aunt Phylllis informed the parents and the defendant that, despite her earlier promise to have nothing further to do with Rogers, the plaintiff was making telephone calls to him. 27 On 31 December the parents and the defendant visited Aunt Phyllis' house at Tamworth and presented the plaintiff with what was said to be a choice. Her father said: "You have to decide between Rogers and your family. We are no longer prepared to live in the gutter. If you choose your family, we will continue to support you in every way, and help you get away from Rogers and do whatever is necessary. Think very carefully, because if you choose Rogers you will be having a final choice. You can't have both." The deceased said, according to Sue, "I agree with that, Dad. We have all had enough of lies and deception". 28 Although Elizabeth denied that this conversation occurred, having regard to her parents' background I think it is likely to have occurred. 29 The next day the plaintiff left Aunt Phyllis' house by the rear window when her husband turned up to collect her. 30 As I have said, in March 1988 the plaintiff telephoned her parents but did not visit them. It was then made clear to her that she could visit with Andrew but that Rogers was not welcome. The December visit was the last time that she saw her parents and March was the last time she spoke with them. Her parents' upset seems to be, apart from the disapproval of Rogers, the fact Elizabeth was lying to them. 31 It was 1994 when the plaintiff sought to establish contact with her mother through her Uncle Bill. He forwarded letters to her mother which she wrote. One of them records Elizabeth's great shock at only now finding out about her father's death which had been deliberately kept from her on her father's instructions. 32 There was a letter from her sister, Sue, obviously written on behalf of both herself and her mother, which was in these terms: "Ms Rogers. The purpose of this letter is to remind you that any attempt by you, or others acting on your behalf, to make contact with your former family, is both unwelcome and totally offensive. You made your decision more than ten years ago to pursue life with a convicted criminal in preference to you[r] law-abiding former family, with the f[u]ll knowledge of what the consequences of your choice would be- ie. That all ties with us would be forever severed, that such decision was final, and that there would be no further contact with us for any reason from that day on! That position has not altered on iota on our part in all the ensuing years, nor is it ever likely to, and there fore it would be much appreciated if you, and those so obviously acting on your instructions, would cease your efforts to either make contact with, or seek information about any of your former family members. Let us make it quite clear once and for all that we no longer care or desire to know a single, solitary, sordid detail of your life with your criminal husband and his family - you made your choice knowing It was absolutely final, and now you must live with your decisions. It does not require too much intelligence to realise that so-called `enquiries from a doctor's surgery' are actually poor disguise enquiries originating from you, or that your agent on most, if not all attempted to contact your sister-in-law. She, too, would do well to realise that her rudeness to people she does not know achieves absolutely nothing apart from emphasising her ignorance and complete lack of basic intelligence or manners. Obviously, you mistakenly believe that you can treat people, especially your former family, with utter contempt, cold-blooded calculation, and total disregard, at will, without any repercussions whatsoever, however, having been down that road many times in years gone by, and having endured more abuse than was ever warranted at your hands and those of your husband, not one of us has any desire whatsoever to willingly repeat any of it. `Enough is enough' as the saying goes, and put quite simply, we are not more t[h]an happy to continue our lives just as they are, minus all contact with you and yours, and strongly suggest you do likewise. Please be assured that any further attempts to make contact are pointless, as you will not be given any information, and will achieve precisely nothing. Your former family." 33 Although said to be sent in 1994 it might have been a little later, given the reference in the second paragraph to 10 years. There could hardly have been a more definite rejection of the approach for reconciliation. 34 In 2002, through her then boyfriend George, Elizabeth made further approaches to establish contact. This resulted in a two-page letter from her mother rejecting the approach and refusing to have anything further do with her. It was accompanied by a three page letter from her sister categorising all Elizabeth's past misdeeds and condemning her roundly for her past. 35 Notwithstanding this, on 2 May 2002 Elizabeth again wrote a further apologetic letter which talked of her separation and divorce from Roger and relocation to avoid him. In the last two paragraphs she said: "Dear Mum, I can tell you no more. I write to you to ask that you read my letter. I do not request that you reply. Just read my letter and then perhaps you may wish to reply. I will understand if you feel disinclined to reply, a penalty I will live with forever and accept with pain. I have never stopped loving you, nor does a day escape my memories of you. I love you dearly and want to see you to speak with you and tell you how very sorry I am for a hurt I cannot mend, but hope I can start by this letter. I remain Your daughter. Lovingly Elizabeth." 36 There was no response to this letter or any further contact by the deceased. 37 In Foley v Ellis [2008] NSWSC 288 the Court of Appeal referred to this kind of problem: "101. The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant. In Palmer v Dolman Ipp JA , after a review of the cases, observed (at [110]) 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.' See also Wheatley v Wheatley [2006] NSWCA 262 at [22] - [23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse . 102 The authorities indicate that where the claimant has been estranged from the testator or testatrix, the application of section 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, estate of G M Wentworth (Bryson J) quoted in Wheatley v Wheatley at [22]. In addition, section 9 (3) (b) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, not to over simplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context the raw emotions experienced at the time. The 'wise and just' testator or testatrix ( Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this." 38 It is clear that Elizabeth's parents were quiet living, country people held in high esteem by all those who knew them. It was also plain that they felt a strong sense of shame by association. A child is an important part of a parent's life and it is not possible for most parents not to feel ashamed at a wrong or immoral action by their children. 39 Although the choice was presented in 1987 and Elizabeth took her course it is plain that by 1988 the deceased was prepared to have Elizabeth and Andrew back but not Rogers. Elizabeth rejected that opportunity. In doing so she was denying her parents the opportunity of also seeing the growing up of their grandchildren. 40 In 1994 Elizabeth was still with Mr Rogers, and as her uncle pointed out to Elizabeth, it would take time for her mother to get over those seven or eight years of denial by Elizabeth at a time when she had lost her husband as well. 41 It was to Elizabeth's credit that she tried again in 2002. By that stage her mother was old and set in her ways. Given this and her background I can understand that she could not forgive Elizabeth. Plainly Elizabeth rejected her in the years between 1987 and 1994 but she did change and attempted a reconciliation. 42 Having regard to that fact I do not think that the circumstances are such that Elizabeth should be precluded from having a claim. Her claim may, however, be very much diminished. The situation in life of the defendant 43 Sue is 61 years of age, separated and, her children are not dependent. She lives alone in her home at Winston Hills, Sydney, which is worth $600,000 and unencumbered. She has a vehicle, personal property and superannuation of $33,278. She has a mortgage of $60,000 and line of credit of $30,000 which she used to pay out credit card liabilities and pay for her child's wedding. She has a clerical job and earnings $3,072 per month. Her expenses are $2,832. 44 In contrast to Elizabeth, sue was always available for her mother. After her father went to hospital she went with her children to Tamworth to help out. She remained and changed the children's schools and had them living permanently in Tamworth with her. She stayed there until the family home was sold in 1990. She purchased the present home, as I have said, in 1990 for $240,000 with the funds provided by her mother. They moved in and she looked after her mother for the rest of her life until she went into a nursing home shortly before she died. Discussions 45 Both parties have a need for funds. Elizabeth has virtually nothing and earns very little. Although she has some capital Sue also earns very little and has few savings until she accesses her modest superannuation. It should not be long until that happens. 46 Sue has been the one who has been the dutiful daughter and stood by her mother over the years. She has, in part, been rewarded by the provision of the present home, not that reward is the appropriate way to see it, as it is a natural thing for a parent to do. 47 Elizabeth has led her own life and done virtually nothing for her mother over the years. 48 We have a mere $63,000 to deal with in this estate. Each of the siblings' needs are greater than this sum and, thus, they cannot all be accommodated. Should one thus simply split it between them, as they both need some amount, or should there be a differential amount warded based upon a view of who has been the better daughter? That battle has, unfortunately, been raging throughout this litigation and it is time to finish it. 49 I think that in the circumstances of such a small estate and both claimants having large needs that the sum should be shared equally between them. I order: 1. In lieu of the provisions of clause 3 of the will the estate of the deceased be held in the plaintiff and the defendant equally. 2. That the plaintiff's costs on an ordinary basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased. 50 There has been tendered an offer of compromise of 25 August 2010 in which the plaintiff offers to compromise by "making a principle offer of $30,000 plus costs agreed or assessed". That was not accepted. The offer is a little hard to understand but, given the circumstances of the case, one assumes that it is an offer to settle for $30,000 payment plus costs agreed or assessed. 51 It has been drawn to my attention that in my judgment I have overlooked an affidavit of Peter David Kennedy sworn 24 September 2010. That, in effect, shows that the actual estate, rather than the figure of $135,000 which I referred to, is a sum of $131,557.98, being a term deposit. On the basis of that amount and the costs to which I have referred, the estate is even less than $60,000. In the circumstances I do not think the offer is any better and, accordingly, I will not order that the costs be payable on an indemnity basis. Formal orders 1. In lieu of the provision of clause 3 of the will the estate of the deceased be held for the plaintiff and the defendant equally. 2. The plaintiff's costs on an ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. 3. I decline to order that the plaintiff's costs be on an indemnity basis. ********** 08/10/2010 - Typographical error - Paragraph(s) 35 - Susan corrected to Elizabeth 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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