Supreme Court New South Wales Medium Neutral Citation: Richard Leon Black v Michael Edward Black [2011] NSWSC 1448 Hearing dates: 21 November 2011 Decision date: 21 November 2011 Jurisdiction: Equity Division Before: Acting Justice Windeyer Decision: Order that provision be made for the plaintiff out of the estate of Cecil Audley Black, deceased, in the sum of $83,000 plus the transfer to him of the Jeep motorcar owned by the deceased. Order the costs of the parties be paid out of the estate of the deceased, those of the defendant on the indemnity basis Catchwords: WILLS AND ESTATES - Succession Act 2006 - Application for provision out of the estate of a father Legislation Cited: Succession Act 2006 Category: Principal judgment Parties: Richard Leon Black (Plaintiff) Michael Edward Black (Defendant) Representation: Counsel: Mr K Morrissey (Plaintiff) Mr A Hill (Defendant) Solicitors: GHS Legal (Plaintiff) Lees & Givney solicitors (Defendant) File Number(s): 2010/379516 Judgment 1The plaintiff, Richard Leon Black, seeks an order under s 59 of the Succession Act for provision out of the estate of his father, Cecil Audley Black, who died on 4 January 2010 aged seventy-three. The deceased left a Will dated 18 February 2009 pursuant to which, as his wife had pre-deceased him, he left all his property to his seven grandchildren in equal shares. Probate of that Will was granted to the plaintiff and the defendant, who is one of his brothers, on 30 March 2010. 2The deceased was a widower. His wife had died on 21 July 2009. There were three children of the marriage: David, born on 1 March 1960; Richard, the plaintiff, born on 9 March 1963, and Michael, the defendant, born on 7 April 1971. The deceased and his eldest son, David, had been estranged for quite a number of years. 3David has three children: James, Brendan and Cameron aged respectively nineteen, eighteen and sixteen. Richard has two children: Heather and Nathan aged respectively sixteen and fourteen, and Michael has two children: Catherine and Andrew aged respectively twenty-five and twentytwo. 4The deceased had stated that he would pass by his children to give his grandchildren a start in life. 5I will not set out the assets in the estate as at the date of death as there have been some changes since the inventory of property was prepared. It is sufficient to say that those assets have been collected and the amount collected totalled $482,266. In addition there is a motorcar, which is in the possession of the plaintiff, now agreed to be worth about $17,000. The principal asset in the estate was a refund in respect of a bond paid to the RSL LifeCare totalling $385,799. There was also in the estate the proceeds of a bank account with the St George Bank of $58,744 and proceeds of the accounts held with the Macquarie Bank of about $31,000. 6Testamentary expenses and costs of administration are said to come to $14,613 and $37,751 respectively. 7The plaintiff married in 1989. He has two children. He separated from his wife in 2001 and they were divorced in 2005. It seems that they still have a reasonable relationship together and the children stay with each parent for one half of the time on mutually agreed arrangements. 8The plaintiff is a selfemployed handyman. He makes some additional income from selling educational toys. He has a present income of about $40,000 a year and is said to have outgoings of about $4,615 per month, but some of those outgoings are not clearly established and some of them will diminish over time. The biggest outgoing is his mortgage payments. The plaintiff has a house at Trinity Beach, Queensland, worth somewhere between $305,000 and perhaps $315,000, but if it is sold there will of course be expenses of sale. He has a 2006 motor vehicle, superannuation entitlements of $2,200 and some small other assets worth about $1,000, so that his gross assets would be in the vicinity of $333,348. 9He has liabilities of a mortgage loan on the house of $224,000, a Queensland government home loan of $9,500, credit card liabilities of $33,000 and other debts of about $4,500, so that his total liabilities are about $270,000. It is clear from this that his net asset position is not good. 10Nathan, the son of the plaintiff, was born with a cleft lip and suffered from autism. He has had extensive treatment and therapy for both problems, but now attends a mainstream school. He still has some problems and requires psychological treatment. Heather has had some dental problems and requires further dental surgery which will cost about $1,200. These expenses, it seems, are shared between the plaintiff and his former wife. The plaintiff did receive from a superannuation fund, of which his father was a member, the sum of $22,000 when the trustees determined to pay that amount to the three sons in equal shares, but that money has all been spent. 11When the deceased was diagnosed in 2009 with mesothelioma, the plaintiff took a considerable amount of time off work to come to Sydney during the chemotherapy sessions and in the last six months of the deceased's life, the plaintiff came to Sydney to care for his father. I am satisfied that the evidence which he gave in his affidavit as to all the work which he did is somewhat exaggerated as considerable help was available from the retirement village. Nevertheless, the fact is that he did come to Sydney, he moved to the War Veterans' Home and he took care of his father, and generally speaking it was not possible for him to earn income during this period. As he has honestly said, things have improved and his income now appears to have gone up to the figure which I stated of $40,000 a year. 12There is no evidence of the financial position of the two brothers of the plaintiff, they are not beneficiaries and they make no claim. 13So far as the grandchildren are concerned, there is some evidence from five of them, namely, children of David and Michael, which really goes to show that they are all just making their way. Apart from Catherine, they have jobs or are apprenticed. They are all making some money and it just about covers their expenses, and those who live at home may be a little bit better off. That however is not really something that needs to be taken into account. That is the position with most children of the age of these grandchildren. 14One of the matters which often causes judges concern, and particularly one who has been away from being a permanent judge for a little while, is what seems to me to be the extraordinary amount of costs which are incurred in these matters. For instance, the costs of the plaintiff come to $55,000 and the costs of the defendant appear to come to about $85,000. This is really an extremely simple claim about a relatively small estate. The fact that the costs should amount to twenty-eight per cent of the net assets of that estate seems to me to be extraordinary and undesirable. Of course I do not know the attitude of the parties, and that attitude might have resulted in significant costs being incurred and time spent or wasted. The simple fact is this is a simple claim. The affidavits are very simple, nobody has gone into unnecessary evidence, and yet the costs seem to be out of control. 15The question however in spite of that statement is whether or not the plaintiff's claim for an order for his provision has been made out. As is well known in these matters, in answering that question the Court has to determine whether adequate provision has been made for the plaintiff and, if adequate provision has not been made, what provision ought to be made. It does not necessarily follow because no provision has been made that adequate provision should be made, because an applicant may be well off and not in need of any provision, other claimants may be in greater need or there may be reasons which would justify the provisions in the Will. That is not the case here. 16The second question that arises when determining what provision ought to be made does mean that the same matters must be looked at again in deciding what is the proper provision for an order, if any. The Act itself sets out the matters to be considered by the Court in s 60. Most of those matters I think and hope I have dealt with in this judgment. The fact is that whatever the position of the rest of the family, this plaintiff is in bad financial circumstances. There is no conduct of his which would lead the Court to consider that it was a correct decision for the deceased not to make provision for him. In essence, the deceased seems to have thought that the right way to dispose of his assets was to give them to his grandchildren to give them a start in life and to pass by all of his children. There may have been good reasons, although I do not decide this for passing by David, but that does not necessarily mean there were good reasons for passing by this plaintiff. The fact that he did take considerable time off to care for his father is something which should be taken into account as being an obligation or responsibility which the deceased might have thought fit to recognise in some way in his Will. 17Nevertheless, in spite of the submissions which have been urged on me by counsel for the plaintiff, I do not think that proper provision in a case such as this requires the Court to make an order which would enable the plaintiff to pay off all his debts or perhaps two-thirds of his mortgage and the rest of his debts, which would on that basis require an order on the basis of $191,000, which on the figures which have now been agreed in exhibit 2 would mean on a net basis that the balance left for distribution to the seven grandchildren would be in the order of $90,000. 18It may be that the plaintiff will have to sell his house. However, I do not consider that he has a legitimate claim on the bounty of his father for such a figure as will necessarily enable him to keep that house by discharge of the mortgage or repayment of most of the mortgage loan. The plaintiff is, when all is said and done, a reasonably young man who can work and is able to make income, albeit modest income. 19I have come to the conclusion that the plaintiff is entitled to an order for provision. It has been agreed because the Jeep motorcar is in his possession that it would be preferable if he retained it and that it was agreed to have a value of $17,000. I have come to the conclusion, bearing in mind the position of the grandchildren and the legitimate claim of the plaintiff, that an order should be made that he retain the Jeep and in addition receive an amount of $83,000 which would make a total of $100,000, and I will make that order. 20I order that provision be made for the plaintiff out of the estate of Cecil Audley Black, deceased, in the sum of $83,000 plus the transfer to him of the Jeep motorcar owned by the deceased. 21I order the costs of the parties be paid out of the estate of the deceased, those of the defendant on the indemnity basis. 22The exhibits may be returned. 23I just want to make it clear that the costs of the defendant cannot just be deducted at the defendant's wish from the estate because there are two executors, so either they will have to agree or they will have to be assessed. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2011