3178 of 2008 ELLEN LOUISE JANSSON -v- PERNELLE THERESE ALEXANDER and ORS
JUDGMENT
1 HIS HONOUR: These are two proceedings in respect to the estate of the late Eric Martin Jansson (to whom I shall refer as "the Deceased").
2 The Deceased died intestate on 5 July 2005, aged 61. Letters of administration of his intestate estate were granted to his four children, Pernelle Therese Alexander, Jocellin Lee Jansson, Keiran Eric Jansson, and Amber Tracey Jansson, on 23 October 2006. They shared his estate equally, pursuant to the provisions of section 61B(4) of the Probate and Administration Act 1898.
3 The inventory of property discloses that at the time of his death the assets of the Deceased consisted of:
Rural property known as
Pindari at Niangala (estimated value) $770,000
Two thirds interest as tenant in common in
rural property known as
Gerraween at Niangala (estimated value) $1,897,333
Interest in partnership
with Mrs Ellen Jansson (estimated value) $225,326
Bank deposits and investments, totalling $1,650
Furniture and furnishings $2,500
4 The foregoing assets have been transferred to the four children of the Deceased.
5 In calculating the value of the estate available for distribution, the costs of the present proceedings under the Family Provision Act 1982 must be taken into consideration, since the applicant, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the four administrators of the estate, irrespective of the outcome of the proceedings, will normally be entitled to an order that their costs be paid out of the estate.
6 It has been estimated on behalf of the applicant that her costs of the Family Provision proceedings will be $25,000, whilst it has been estimated on behalf of the four administrators that their costs of those proceedings will be in the order of $40,000 (possibly somewhat less, the hearing of both matters together making a dissection of their Counsel's fees somewhat difficult).
7 Ellen Louise Jansson is the mother of the Deceased. She was born in 1915 and is now aged 94. (I shall refer to her as "Mrs Jansson".)
8 Mrs Jansson married Martin Hjalmar Jansson in April 1936, and thereupon moved into residence with him at his property Gerraween at Niangala (which he had purchased in his sole name in 1933).
9 Gerraween has been Mrs Jansson's home for the past 73 years. She desires that it should remain her home for the rest of her life. She still surpervises the feeding of her sheep and cows on the property and other pastoral and rural activities thereon.
10 Mrs Jansson and her husband had five children (two of whom died shortly after birth). When Mrs Jansson's husband died in April 1970, by his will the property Gerraween was divided into four equal shares, each of Mrs Jansson, her son Eric (the Deceased), her daughter Fay, and her daughter Julie Anne receiving a one fourth share, as tenant in common. Mrs Jansson remained upon the property, and continued the business of breeding cattle and grazing livestock in partnership with her son, the Deceased.
11 Subsequently, the one fourth interest of Mrs Jansson's daughter Fay was separated from the balance of the property, and became known as Pindari. The remainder of the property, continuing to be known as Gerraween, was then owned as to one third each by Mrs Jansson, the Deceased and her daughter Julie. Subsequently, Julie transferred her interest in Gerraween to the Deceased, some financial assistance in that regard being provided by Mrs Jansson. In consequence, therefore, the Deceased owned a two thirds interest in Gerraween and Mrs Jansson owned a one third interest therein. Gerraween consists of six lots under freehold title, one Crown lease and one occupation permit. The homestead (as well as cattle yards and sheds) is located upon the land comprised in folio identifier 39/753689.
12 The Deceased returned to live at Gerraween in 1980 after his marriage broke down. He continued to reside with Mrs Jansson in the homestead from 1980 until 2002. Mrs Jansson expended her own money, in an amount of $9,000 (which she had inherited from her own mother) upon improvements to Gerraween.
13 In 1990, Mrs Jansson's daughter Fay transferred her interest in the property Pindari to the Deceased, who subsequently, in 2002, departed the homestead at Gerraween in which he had been residing with his mother, and removed to the residence at Pindari.
14 By summons 2592 of 2008 filed on 1 May 2008 the four children of the Deceased (who, in consequence of succeeding to the intestate estate of their father, have conjointly become co-owners as to a two thirds interest in Gerraween, as tenants in common with their grandmother, Mrs Janssen, who retains a one third interest therein) claim an order for the appointment of statutory trustees for sale of the entirety of Gerraween, pursuant to section 66G of the Conveyancing Act 1919.
15 The effect of such an order would be to deprive Mrs Jansson, at the age of 94, of her home of the past 73 years. It was Mrs Jansson's evidence that on a number of occasions she had been told by her son, the Deceased, that she could stay at Gerraween for the rest of her life.
16 Apart from her one third interest in Gerraween, Mrs Jansson has savings totalling about $10,000. Her income consists of the age pension, in an amount of about $500 a fortnight. Her outgoings and expenses also total about $500 a fortnight, and include the cost of food and household supplies, insurance, telephone, fuel, clothes, as well as drenching expenses, fodder purchases and veterinary expenses in respect to the cattle and sheep upon of the property.
17 Shortly after being served with the foregoing summons, Mrs Janssen sought legal advice, and on 11 June 2008 filed summons 3178 of 2008. The Defendants named in that summons are the four children of the Deceased, who are the Plaintiffs in proceedings 2592 of 2008. By her summons Mrs Jansson seeks substantively an order for provision for her maintenance, education and/or advancement in life pursuant to section 7 of the Family Provision Act and an order for the extension of time in which to make that claim. (Such latter order is necessary since her proceedings were not instituted within the period of eighteen months from the date of the death of the Deceased, as required by section 16 (1) of the Family Provision Act.)
18 The two proceedings were heard together, and in each an order was made that the evidence in the one proceeding, so far as is relevant, be treated as evidence in the other proceeding.
19 Although the proceedings under section 66G of the Conveyancing Act had originally sought relief by way of an order that the property be held on statutory trust "for sale and/or partition", upon application by the Plaintiffs in those proceedings at the outset of the hearing, I granted leave to those Plaintiffs to amend the summons by deleting from prayers 1 and 2 therein the words "and/or partition". In consequence, those Plaintiffs now seek an order that Gerraween be held on statutory trust only for sale.
20 It is appropriate that I should first deal with the claim by Mrs Jansson for an order for her provision out of the estate of the Deceased. The outcome of that claim will be determinative of the application by her grandchildren for relief under section 66G of the Conveyancing Act in respect of Gerraween. Mrs Janssen consents to the balance of the real property of the Deceased held in co-ownership, after any order for provision is made in her favour, being held on statutory trust for sale.
21 A considerable quantity of evidence (by way of oral evidence and photographs) was given on behalf of the beneficiaries concerning access to Pindari. It was the assertion of the beneficiaries that the only points of access to Pindari were by way of Gerraween or through a State Forest under an occupation permit.
22 It was submitted on behalf of the beneficiaries that the sale of the property in co-ownership, being Gerraween, should be interdependent upon the sale of the property Pindari. The reason for that submission, as I understood it, was the alleged difficulty of access to Pindari. I do not understand that any such difficulties of access would require that access to Pindari should be through Mrs Jansson's homestead (or the curtilage thereto) on Gerraween. In any event, Mrs Jansson consents to an easement of right of way being granted over the land in folio identifier 39/753689, to overcome any problems of access.
23 It will be appreciated that Pindari is not held in co-ownership, but was held by the Deceased alone and has passed to his four children upon intestacy. Mrs Jansson has no interest in Pindari. I can see no reason whatever for the sale of the remainder of Gerraween, held in co-ownership, to which the beneficiaries have established an entitlement to the appointment of statutory trustees for sale and to which appointment Mrs Jansson consents, should in any way be interdependent upon the sale of Pindari, which is held by the four beneficiaries alone, and in which Mrs Jansson has no interest. It is entirely a matter for the beneficiaries what they do about Pindari. So far as the Court is concerned, the jointly owned property (apart from that lot of Gerraween upon which the homestead stands) will be subject to the appointment of statutory trustees for sale. Of the net proceeds of that sale, Mrs Jansson will of course be entitled to one third, and the beneficiaries will be entitled to the remaining two thirds.
24 Mrs Jansson asserted that she was an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she had been a member of the same household as the Deceased and had been partly dependent upon the Deceased. That membership of the same household obtained from the birth of the Deceased on 5 June 1944 until he left home in 1966 at the age of about 22, and again from 1980 until 2002, while he was residing with Mrs Jansson on the homestead at Gerraween. Further, throughout the latter period while they had been living together, Mrs Jansson asserted that she had been partly dependent upon the Deceased, that dependency including her occupation of the residence on Gerraween.
25 It should here be recorded that the Plaintiff, although in reasonable health for her advanced years, was not in attendance at the hearing. Although notice had been given requiring her attendance for cross-examination upon her affidavits, I allowed (in the face of opposition from the beneficiaries) those affidavits to be read. Indeed, the only oral evidence at the hearing was relatively short evidence of Jocellin Lee Jansson the Second Defendant, and of Mrs Fay Studte a daughter of Mrs Jansson and sister of the Deceased. Mrs Studte, who assists her mother in her farming activities and in her everyday life, spends up to six days a week with her in Gerraween.
26 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties and a chronology from Counsel for Mrs Jansson. Those documents will be retained in the Court file.
27 There can be no dispute that Mrs Jansson was a member of the same household as the Deceased, for a total period of about 42 years. From the time of death of her husband in April 1970 Mrs Jansson relied on the Deceased in the business which was conducted by them in partnership, and also for assistance with her personal needs and activities. The tasks which the Deceased performed for his mother, were many and varied, and are set out in paragraphs 11 and 12 in Mrs Jansson's affidavit of 5 June 2008 and in paragraphs 6 - 10 in her affidavit of 25 June 2008. Those instances of dependency included supervision, maintenance and physical activities involved in the partnership conducted by Mrs Jansson and the Deceased in the business of Hereford breeding and livestock grazing; sale of cattle; Mrs Jansson and her son maintained a joint account with the Rural Bank (later State Bank) at Tamworth, conducted in their joint names, into which moneys from the sale of cattle were deposited, and from which household and property expenses were paid. Mrs Jansson said that she relied on the income from the sale of cattle by the Deceased in order to make ends meet on the property.
28 Mrs Jansson said that the Deceased carried out most of the physical activities relating to the cattle, the sheep, the maintenance and use of machinery, the sale of livestock, farming work (for example, driving a tractor, sowing crops, spreading superphosphate). She said that without the Deceased performing that work, she would not have been able to carry on the business. She said that the Deceased also performed for her such domestic work as: chopping and stacking firewood, mowing the lawn, maintaining the house by cleaning out gutters, frequently cooking, purchasing groceries and performing other shopping for Mrs Jansson; as well as driving her to appointments in town, since she did not hold a driver's licence.
29 In short, Mrs Jansson from her late middle age into her old age was very reliant and dependent upon the Deceased in the practical aspects of her everyday life, as well as being physically and practically dependant upon him in the conduct of their partnership business.
30 I am satisfied that Mrs Jansson was dependent upon the Deceased in respect to the foregoing matters of personal assistance, and, further, that she was dependent upon him in relation to the earning of partnership income, and the upkeep of the rural property. I am satisfied that Mrs Jansson was at least partly dependent upon the Deceased from the period after her husband's death in 1970 and especially during the period from 1980 until 2002 (a period when Mrs Jansson was aged from 65 to 87).
31 It follows, therefore, that Mrs Jansson is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings.
32 I have already observed that the proceedings were not brought within the period of eighteen months from the death of the Deceased, prescribed by section 16 (1) of the Family Provision Act. In order to comply with the requirement of that subsection, the proceedings should have been instituted no later than 5 January 2007. Since the summons was filed on 11 June 2008, Mrs Jansson is 17 months out of time. However, subsection (2) of that section gives to the Court a discretion to allow the proceedings to be brought after the expiration of the prescribed period.
33 In Warren v McKnight (1996) 40 NSWLR 390, Hodgson J (as he then was) referred to the following four factors as being relevant to the exercise of the discretion of the Court to extend time in a claim under the Family Provision Act.