Barnsley v Riakos

Supreme Court of NSW|2011-05-25|Before: Waddell CJ, Macready J

I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." 67Stein AJA agreed with both judges. 68In Marshall v Carruthers the Court was concerned with a claim by a de facto partner. Hodgson had the following to say: " [63] The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the Deceased.

In Golosky v Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the will beneficiaries whose interests were affected, were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring) ordered further provision for the widow, and Kirby P referred to Luciano v Rosenblum briefly for comparison, but also said: Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an "able bodied son" was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [ Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575f], 580f; cf Anderson v Teboneras and Anor [1990] VR 527 . So should inflexible rules about spousal provision.

In Hertzberg v Hertzberg [2003] NSWCA 311 provision ordered by Acting Master Berecry for a widow, second wife of the testator, out of a large estate was confirmed by the Court of Appeal. There was no competing claim or circumstance of need of any will beneficiary. McColl JA said at [35] in the context of the claim of a widow for the matrimonial home (which in this case the claimant owns): His Honour's judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the Deceased may well have contemplated he had left the respondent appeared to have altered. The statement in the first sentence of this passage should be understood in its context of a claim in a very large estate where there was no competing claim based on need.

In Sayer v Sayer [1999] NSWCA 340 at [34] Sheller JA (with whom Davies AJA concurred) accorded primacy to the claim of a widow (of a second marriage) over the claim of a granddaughter who was an eligible person "in the circumstances and in accordance with prevailing community standards." This does not in my opinion express any general principle of paramountcy.

In Cropley v Cropley [2002] NSWSC 349 at 56 Barrett J said: When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow's claim to maintenance out of the estate of her Deceased husband is a claim which is "paramount" and "of a high order" is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows: In my opinion, the question is whether [the grandchild] has satisfied the Court that there is, in the circumstances and in accordance with prevailing community standards ( Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46), sufficient in the estate to provide for the widow's proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her. This was accepted as an accurate statement of the law by Palmer J in Latimore v Latimore (2003) NSWSC 364 at [59]. At [57] Barrett J proceeded to approach the applications according to the two stage approach described in Singer v Berghouse (1994) 181 CLR 201.

In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s 7 and the approach established by Singer v Berghouse . Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982.

In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." 66Interestingly Ipp J adopted this in at paragraph one, stating: " [1] I agree with Bryson JA, for the reasons his Honour has stated, that "it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 ..."

The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69 It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here." 69While acknowledging his Honours comments in respect of the strength of the marriage bond, there are a number of factors that are of importance in this case. 70The primary factor is that it was a close and loving relationship of some 16 years in length. The plaintiff also contributed towards the Deceased's care. Although they did not have children, their desire for a child points to the closeness of the relationship. Given the absence of children and the fact that both Susan and the Deceased worked, there is not the usual situation of disadvantage to plaintiff because she could not pursue her career. As a result there were no contributions to building up the Deceased's estate. Another factor is the size of the estate and the nature of the competing claims. 71It is necessary to see how Susan says she has been left without adequate and proper provision for her maintenance, education and advancement in life. She seeks provision equal to one half of the residue of the estate prior to any payment to Mary Clark under her settlement. 72The plaintiff wishes to purchase accommodation for herself in a number of inner city suburbs. She would like to have a place to live in a safe area, with 2 - 3 bedrooms, off street parking and a small garden area. In order to facilitate her business activities, she suggests she will need a utility vehicle that can be used in her work. Such a utility will cost in the order or $42,300. 73The plaintiff also seeks provisions for some postgraduate work of $49,800, a contingency fund of $100,000 and a contribution to her superannuation of $100,000. 74On the costs of accommodation, the plaintiff tendered material suggesting that inter alia : (a) the average price of a one bedroom unit in Glebe with a car space is $504,000; (b) similar but 2 bedrooms was $707,833; (c) the average price of a one bedroom unit in Paddington with a car space is $745,000; (d) for 2 bedrooms, $786,333. 75The defendant's evidence suggested that in Glebe, a 1 bedroom unit with car space could be purchased for as low as $425,000 with a xxx of $647,500. 76There is one remaining issue that should be discussed, that is the estrangement that occurred between the Riakos family and the Deceased between 2000 until his death in 2009. 77Section 60 of the Succession Act provides a non-exhaustive list of matters the Court may consider when deciding whether to make a family provision order and the nature of such an order. Among such matters are the nature and extent of any obligations or responsibilities the Deceased owed to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the Deceased's estate (s 60(2)(b)). Further, that section also lists the conduct of any other person before and after the date of the death of the Deceased person (s 60(2)(n)) as a matter that might be considered. 78As has been discussed, Megan was 19 years old when the Deceased lent her the Robert Mapplethope photography book. He did so following a conversation they had about photography, in which Megan had told the Deceased that she had been intrigued by crime scene photographs in a book by Luc Sante called Evidence . The Deceased had previously lent Megan books and the next time he saw her, he gave it to her. After Megan had looked at the book she said to her mother, "It's really gross Mum. I don't now why he lent it to me". The defendant stated that the Deceased was defensive when she confronted him about it and could not understand why she was upset. 79The Encyclopaedia Britannica 1990 Britannica Book of the Year (1990) at 118 to 119 includes an obituary for Robert Mapplethorpe, which is as follows: "Mapplethorpe, Robert, U.S. photographer (b. Nov 4. 1946, New York, N.Y. - d. March 9, 1989, Boston, Mass.), created intense black-and-white images of classical beauty; he was especially noted for his austere photographs of flowers, his iconic celebrity portraits, and his male nudes, some of the explicitly homoerotic. After studying at the Pratt institute in New York City from 1963 to 1970, Mapplethorpe launched a career as an independent filmmaker and artist. He gained renown as a photographer with his masterfully sculptured nudes, which celebrated the power of the human form. He used sadomasochistic imagery, including chains, leather and binding, to produce deeply disturbing photographs. Mapplethorpe, who credited sculpture as a leading influence, sometimes combined photographic images printed on linen and designed his own wooden frames. His photographs were widely exhibited, and at the time of his death, a retrospective of his works was on view at the Museum of Contemporary Art in Chicago. This show included haunting self-portraits that showed the ravages of AIDS on his once-handsome face. Collections of his photographs were included in such books as Robert Mapplethorpe Photographs (1978), Lady: Lisa Lyon (1983), and Robert Mapplethorpe: Certain People (1985). " 80According to the plaintiff, the Deceased could not understand why the defendant "would not be liberal minded enough to see it [the book] as art" (Susan Barnsley affidavit filed 9 July 2010 at [109]). The plaintiff states that sometime after the incident, the Deceased tried to make contact with his granddaughter Josephine at the Bondi Surf Club but she did not acknowledge him on that occasion. On another occasion in about 2004, the Deceased appears to have offered some furniture to Josephine but it seems she did not respond to the offer. As previously stated, the Deceased also tried to meet Patrick Riakos for dinner, but Patrick refused to meet him. 81Although the Deceased tried to contact Josephine and Patrick, he made no attempt to contact the defendant after the incident. She states that she was waiting for him to apologise to her and because any apology was never forthcoming they were estranged for nine years until his death. The defendant attended the Deceased's funeral but did not go to the burial or wake. 82The nature of the Riakos family's estrangement from the Deceased was best described by Stacy Garlick in cross examination by Mr Todd: "Q. And did you have any contact with the Deceased after 2000? A. I don't recall. Q. Do you recall that there was an incident involving a Robert Mapplethorpe photography book being lent to Megan? A. Yes, I do recall. Q. That caused some upset within the family? A. Yes, I do recall the incident. Q. And there appeared to be a rift thereafter, at least between your parents and some of the children and the Deceased? A. Correct. Q. Did you have any contact with the Deceased after that period of time? A. No. Q. Prior to that period of time, how regularly would you see the Deceased? A. Um, I recall seeing Ralph on many occasions. He was like a grandfather figure to us. He came to big events of ours. Holy Communions, I remember Christmas Day we would go and visit him. I remember gifts that he would give us on Christmas Day, we would go and visit him. We used to play in his driveway with the rocks. I was actually quite young. I am young now, but at the time we were involved with him I was quite young, so I have those playful memories of him. So, going there, him fixing us a favourite drink, playing in the driveway with the rocks. He coming to special events of ours. Going there after the City to Surf, to see him. Things like that. Q. I take it then, as you were so young you had no independent contact, absent family circumstances or other members of the family, with Ralph? A. No. Through family I would see him. I was quite young at the time. Q. And why was it that you ceased seeing Ralph after 2000? A. Um, well I could feel that there was a rift in the family and obviously, you know, I am a teenager at the time in school so my focus was on school at that time and that's just how it all played out, I guess. Q. Well, between 2000 and 2009 there was no contact between you and the Deceased? A. What was that, sorry? 2009? Q. 2009, when he died? A. Between when, 2000 and 2009? Q. Yes? A. No, I don't recall. Q. And after you left school, after you were leading what might be described as an independent life, did you turn your mind to reigniting any contact with Ralph? A. Well, it has come up in discussion with my husband and myself, but at the time, you know, because I was young at the time I didn't understand the full gravity of what actually went down and in respect for my family members, I just stood behind them and really just-- Q. Would it be fair to describe it as a form of solidarity with the rest of the family? A. What does that mean, sorry? Q. That, because they had adopted this attitude towards Ralph because of what they considered to be inappropriate behaviour, you followed suit? A. The one thing regarding the book was, because I was under the age of 18 when it happened, my parents didn't really show me the book or engage me in what actually happened, because I was under age and at the time they didn't feel I was old enough to be told about these images, because it is obviously R-rated or however the book is. I still haven't actually seen the book. I would say they and they have done this in other things in life, that they would actually shield me from those sorts of situations. So I feel that, because they shielded me from it, I haven't really formed an opinion about the whole situation because I was so young. So they never persuaded me to have an opinion about Ralph nor did they speak badly of him. I was shielded quite a bit about the whole incident. So, I haven't been able to form my own judgment on how I feel about the time that we separated, the relationship between Ralph and our family. They kept quite neutral in discussions with me about those things. Q. Between 2000 and 2009 when Ralph died, you made no attempt to contact him? A. No, no I had not. " 83It seems the Deceased considered changing his will after his sister, who was also an executor of the will, was diagnosed with dementia in 2003. However, on the evidence it is impossible to draw any conclusions as to the Deceased's attitude towards the estrangement. From the facts, it appears that although the estrangement seems to have been fairly mutual, the Deceased had made no attempt to change his will. Therefore the estrangement between the Riakos family and the Deceased should not be a fatal to the claim of their claim on the estate.

Conclusion 84If the plaintiff were to receive half the residue of the estate before any settlement money is paid to Mary Clark, in accordance with her claim, she would receive $984,268. If the funds for settlement were taken from the other half of the net distributable estate, the defendant and Madeline Lamont would receive approximately $288,089 each. The Deceased's grandchildren would receive about $36,011. If the settlement monies are paid, half of the estate after that payment would be $880,318 and the other figures would be $293,439 and $36,679. 85Both the defendant and Madeline Lamont are living in fairly comfortable circumstances, although receiving one third of the whole of the Deceased's estate would have an obviously big impact on their lives. Receipt of a smaller sum, that is one third of half of the net distributable estate, would also provide them with a substantial benefit. 86The grandchildren of the Deceased are still relatively young. Each of them appears to have good prospects of success in life and all of them, except for Madeline's children who are younger and Megan, seem to have built up some equity. If orders were made in favour of the plaintiff the sum they would receive would go some way towards paying off their debts, which would help each of them move forward in life. 87The claims for provision by the plaintiff are somewhat akin to what one would expect from a widow of a long and happy marriage as referred to in Luciano v Rosenblum . The present plaintiff is not in that situation. Therefore, I would not think that her claims for a contingency fund, contribution to superannuation and the cost of graduate work are appropriate. 88Plainly, given her business, she has a need for an appropriate vehicle and provision for her can extend to providing accommodation. 89Susan Barnsley cared for the plaintiff and lived with him in a close and loving relationship for 16 years. The appropriate provision for her is a legacy of $825,000.

Orders (1) The plaintiff is to receive a legacy out of the estate of the Deceased of $825,000. (2) The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis are to be paid or retained out of the estate of the Deceased. (3) Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.

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: 11 July 2011

Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the Deceased or in supporting the Deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.

I also take this opportunity to reject Mr Ellison's submission that a person who has a claim as a class (a) eligible person ipso facto has a stronger claim than a person who comes under class (b). Indeed, in many cases, such as where there are infant children, this may not be so." 64Palmer JA concurred in these sentiments. 65The matter was again dealt within more detail in Bladwell v Davis [2004] NSWCA 170. " [12] There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. "Widow takes all" is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned.

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