Allan v Allan [2001] VSC 242

Allan v Allan [2001] VSC 242 - VSC 2001 case summary — Zoe

[39]

In a further affidavit sworn by the plaintiff on 13 September 2000 he dealt further with the matter of the realignment of the boundary of the land owned by the deceased, the "lucerne" paddock, and that of the neighbour, Terry McDonald. He deposed that McDonald spoke to him about the realignment of the boundary, that it seemed reasonable and advantageous to his mother and she was happy for it to proceed. As to the plan of subdivision being prepared with respect to this land owned by the deceased, the plaintiff deposed that although being certain that the deceased would not contemplate subdividing her land and that he had no expectation that that would occur during her lifetime, he thought the idea of having a plan of subdivision drawn while a similar plan was being prepared for the land owned by McDonald, seemed sensible to him at the time. He deposed that such a proposal would enhance the value of the land owned by the deceased and he thought it appropriate that she pay the surveyor's fee but following the dispute over this, he accepted that he should be responsible for part of the surveyor's fee which he paid. In that affidavit, the plaintiff further deals with the purchase of the Snow Road property. He deposed that after the land had been purchased at auction, he and his wife recognised they could not afford to proceed with the purchase and that thereafter the deceased and his father completed the purchase and held it themselves for several years grazing stock on the land until it was sold in 1973. He deposed that he did not receive any part of the purchase price from that sale. The plaintiff further deposed that after the deceased ceased living with he and his wife, there was no need for the larger Tyson Road house and that in about 1983 it was sold and they purchased their present home. He deposed that he visited his mother at least once a month during the period 1982 until mid 1990 and that during the last years of her life he saw her weekly and when in hospital saw her just about every day.

[56]

The defendant said that he and his wife lived in a home registered in their name, which was worth between $59,000 and $60,000. He said it was mortgaged to the Bank of Melbourne, but could not say what was owing under the mortgage saying that his "wife does all that". The defendant said that he also suffered from a bilateral carpel tunnel syndrome. As to the future, he said that if he was to return to work he would have to be retrained. Through the defendant there was tendered a bank statement of the parties' father which recorded a debit entry made on 14 March 1968 for $400, against which there was writing which the defendant said he believed it to be that of his father indicating that the parties' father had loaned to the plaintiff some 23 years ago, $400 to purchase a tractor. There was also tendered a bank statement from the Bank of Melbourne in the name of the defendant and his wife, recording a debit balance of $60,307.73. The defendant said that was the amount owing on the loan on the home in which he and his wife lived. As to the house in Broadribb Court, which had previously been occupied by the deceased, the defendant said that he did not include that in his assets because it belonged to his son. When asked how that came about, the defendant said that his son wanted to buy a house and that it was transferred to him on the basis that he would take over the mortgage. When further cross-examined about the acquisition and transfer of the Broadribb Court property, the defendant said that it was best to ask his wife about that because she did "all the financials". The defendant agreed that in total he had received from his mother's estate some $41,000, which he said that he had borrowed against the estate. He said he guessed that that money could not be retrieved. When further cross examined about the transfer of the Broadribb Court house, he said he had no idea of its value, he did not remember how much he purchased it for, and that he did not remember how much his son had paid to discharge the loan over it. When asked again why there was a mortgage of some $60,000 over the property in which he and his wife lived, he said he really did not know.

[59]

As to the financial circumstances of herself and the defendant, Shirley Allan in evidence said that they owed approximately $59,500 on a mortgage on the house in which they lived and that they owed $8,500 "to credit cards". As to the income of herself and the defendant, she said that she had no income, that she did not work and the defendant received $542 net per week, which I understand to be payments received by him in the nature of WorkCover payments. She further gave evidence as to the purchase of Broadribb Court, saying that it was purchased for the $19,500 from the Housing Commission at a bankrupt sale, notwithstanding the property was worth $40,000. She gave evidence that she was aged 55, that she suffered high blood pressure, that she was a diabetic and an asthmatic and that she also suffered neuropathy in her feet. In cross examination, she said that when the house at Broadribb Court was purchased she and the defendant did not intend the deceased to live there but it was purchased as an investment. She gave evidence that the property was now owned by her son, that he did not pay anything to her or the defendant for it and that she did not know whether he had discharged any debt over the house, saying that the arrangement was done solely between the defendant and their son. In cross examination, Shirley Allan said there was no bank account established for the estate and when money was received, which was in cash, it went into their own account and that that had been happening for some two years. She said that to ascertain which monies received by her and the defendant were the monies of the estate and which monies were hers and the defendants, it was a matter of sorting out their bank statements. She agreed that the value of Broadribb Court had appreciated on their purchase price to some $70,000, that their son had received the benefit of that house. She said that as far as she was aware her son had not paid anything by way of satisfying or discharging any loan or any loan that she and the defendant had taken out to purchase the property.

[85]

"It might be said that the principles applicable to the exercise of the statutory jurisdiction should be the same whether the applicant is a widow or widower, son or daughter and whether child or adult. Doubtless principles are the same but, as has been said before, the approach of the Court will differ according to the relationship that he or she has with the testator:.... This is because what a testator should have perceived as proper and adequate for a person in one category in the prescribed class will differ from that for a person in another category. A testator's approach must differ in considering the potential claim of a wife (where she has little property of her own) and when considering the claim of a successful son whose children have all left home. The approach of the courts, endorsed in Hughes case (see esp. at 147-8 per Gibb CJ, in whose judgment Mason and Acorn J. concurred), is that in ordinary circumstances, a testator is not under an obligation to make provision for an able bodied and successful adult son because that son is, almost invariably, 'in no need of maintenance or support' of the requisite kind: see Gibbs J in Hughes case at 147. However, if, as is not uncommon these days a son has reached adulthood without establishing himself in life and without adequate or certain prospects of doing so, the position will be different, and, subject to competing claims he may well show that the testator was under a duty to make appropriate provision for him, as in fact I held in Andersons' [Anderson v Trebonas [1990] VicRp 47; [1990] V.R. 527] case. Again if a son has reached late to middle age or beyond, then, not withstanding that he has met with reasonable prosperity during the most of his working life, he may well be able to show, especially in recent years, that his prospects of gaining employment (or improving his financial position where he is earning but a bare sufficiency), are such that the testator fairly should have contemplated that he would be likely to be in needy circumstances for much of the rest of his life. In such a case, a moral obligation to make further provision will likewise have rested on the testator. Not only may an applicant in the latter circumstances be able to show that he has over the years contributed to building up other testator's estate or given other assistance worthy of recognition (a 'special claim'), but he may, alternatively or in addition, be able to establish a 'special need for maintenance and support' in that: 'he may have suffered a financial disaster; he may be unable to obtain employment...' etc: Hughes' case at 147."

[95]

I observed the plaintiff and his wife during the proceedings and particularly when they gave evidence. Each of them sought to give evidence of events as best as they could recall. They impressed me as honest witnesses and people who were trying to tell the truth as best as they could recall it. I generally accept the evidence of the plaintiff and his wife and where it differs from the evidence of the defendant and his wife, I prefer the evidence of the plaintiff and his wife. Having viewed the defendant during the course of the trial and having regard to the evidence given on the trial, I do not accept the allegations of the defendant that the plaintiff bullied, lied and financially cheated their parents during the life of their father and that he so acted thereafter towards his mother after their father died and during the remainder of her lifetime. I do not accept that the plaintiff made provision for himself from the estate of their father and/or their mother by deceiving and defrauding his father and mother. Although, it has slight bearing on the application of the plaintiff to have provision made for him from the estate of his mother, I accept that the plaintiff as a boy and young man assisted his father and family in the conduct of farms, managed and conducted by his father. I accept the plaintiff's account of the work that he did in the cartage business conducted by his father. It was only to be expected that as the plaintiff grew up and matured, and he sought to establish himself and go his own way supporting himself, his wife and family, there may be differences between him and his father. I accept that after the death of his father, the plaintiff took on the role and managed, oversaw and conducted the small farming properties in Oxley that were his mothers. By doing this, the plaintiff managed to keep those properties intact for the benefit of his mother. I am satisfied that he did this honestly and ensured that the returns went to his mother. As to the purchase by the plaintiff of the Snow Road property, I accept the account of the plaintiff as to this matter and what occurred thereafter relating to this property. At the time that the plaintiff and his father attended the sale of this property, it was their intention that the property be purchased by the plaintiff if they should be successful at the sale. At this time, it was their expectation that by the sale of the property of the plaintiff at Everton Upper, the plaintiff and his wife would have sufficient funds to complete the purchase of the Snow Road property. However, this "hope" did not eventuate and the plaintiff's father and mother, the deceased, took over the purchase, conduct and management of the Snow Road property. It was eventually sold by the plaintiff's father and the proceeds of such sale were returned to him. I am satisfied that on the completion of the sale by the plaintiff's father of this property, there was no monies owing by the plaintiff to his father concerning the purchase of this property. That there may have been some acrimony between the plaintiff and his father concerning the plaintiff's wishes and or endeavour to purchase this property appears to have been short lived. I am satisfied that in seeking to purchase this property, the plaintiff was not seeking to cheat or defraud his parents or act dishonestly towards them.

[96]

As to the five acre property in Oxley, I am satisfied that the plaintiff's parents made it clear to the plaintiff and others, including the defendant, that this property was to become the property of the plaintiff. It was recognised by the deceased and her husband that this was to be so, in recognition of the work that had been performed by the plaintiff as a boy and young man for the family in the conduct of farms and businesses managed and conducted by the plaintiff's father. When the plaintiff moved the Everton Railway House onto this property, during the lifetime of his father, there was apparently some dispute between the plaintiff and his father as to whether cladding should be affixed to the outside of the house. A dispute of such nature may very well occur between a father and son while each having their views as to what may be the best method to adopt as to improve the appearance of a house. Although this may have been the case, it is of very little moment in my view in these proceedings. After the death of the father, the deceased initially came to live with the plaintiff and his family in the Everton Railway House on the five acre property. This caused some overcrowding in the house and the deceased was obliged to share a bedroom with a daughter of the plaintiff and his wife, which was no doubt considered to be not particularly desirable. It was in such circumstances that the plaintiff sought to buy and proceeded to buy the property known as "Tysons". I accept the plaintiff's account as to what occurred relating to the purchase of this property. The five acre property was registered in the name of the deceased, although it being recognised by the plaintiff's father and the deceased that the property was or would become the property of the plaintiff. It was in such circumstances that the plaintiff requested the deceased to provide the five acre property as security for the bridging finance that he had arranged for the purchase of the "Tysons" property. It is not uncommon for a parent to give to a child, during the lifetime of the parent, financial assistance in respect of a property which is to become that of the child after the death of the parent. It appears, however and this is accepted by the plaintiff that this arrangement caused confusion to the deceased as to the role that she was playing in providing the five acre property as security or monies needed by the plaintiff to purchase "Tysons" and her role in the purchase of "Tysons". I am satisfied that such confusion had by the deceased as to this matter was not brought about by the plaintiff, deceiving or seeking to deceive or cheat the deceased. I am satisfied that in this matter the plaintiff did not act fraudulently towards his mother. Although the confusion in the mind of the deceased caused her to cease living with the plaintiff and to commence living in the household of the defendant and although this caused some upset in the relationship between the plaintiff and the deceased, I am satisfied that this was a short term interruption in the relationship between the plaintiff and the deceased which was otherwise a sound and good relationship. When the five acre property was sold, the plaintiff received the benefit of $32,500 as provided by the deceased to him. Thereafter, in consequence of a sale by the deceased of property owned by her, each of the plaintiff and the defendant received the benefit of $8,000 being provided to them by the deceased.

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Judgment (116 paragraphs)

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Legislation Cited (2)

Cases Cited (2)