(2014) 13 ASTLR 294
Burke v Burke [2015] NSWCA 195
(2015) 324 ALR 641
Vigolo v Bostin [2005] HCA 11
Source
Original judgment source is linked above.
Catchwords
(2014) 13 ASTLR 294
Burke v Burke [2015] NSWCA 195(2015) 324 ALR 641
Vigolo v Bostin [2005] HCA 11
Judgment (2 paragraphs)
[1]
Judgment
These proceedings concern the estate of the late Patricia Grace Behrens ("Patricia") who died on 4 May 2018. Patricia left a short form will (undated) which appointed her daughters, Monica Lee Behrens ("Monica") and Ellen Patricia Behrens ("Ellen"), as the executors and trustees of her estate. Probate of the will was granted to Monica and Ellen on 23 August 2018.
Patricia left her entire estate to Monica and Ellen in equal shares and did not leave anything to her son, Reginald Llewellyn Behrens ("Reginald"), who is the Plaintiff in these proceedings and the older brother of Monica and Ellen. It was agreed that Patricia's estate consisted of $174,000 and a motor car of approximately $1,000 value.
Reginald appears for himself, as does Ellen. Monica has not taken an active part in the proceedings and has left defence of Reginald's claim to Ellen.
Patricia was the daughter of Benedict Herbert Jones ("Benedict"). Benedict left a will dated 9 December 1982 by which he gave a life interest to Patricia in a property at 23 Omaha Street, Belfield NSW ("the Belfield property"). He devised the "rest and residue" of his estate equally to his five children, Albert Frederick Jones ("Albert"), Clive Edward Jones ("Clive"), Patricia, Carol Ann Bonaccorso ("Carol") and Leah Marcella Rout. Under Benedict's will, Albert and Clive were appointed as executors and trustees. The principal asset of Benedict's estate was the Belfield property and Patricia's one fifth share in Benedict's estate is the only significant asset in her estate.
Behrens v Behrens [2020] NSWSC 1566 | Case summary | Zoe
Reginald seeks a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (the "Succession Act") against Patricia's estate, which he requests to be made in the form of a lump sum payment (noting that Reginald, who is self-represented, erroneously sought an order pursuant to s 65 of the Succession Act in his Summons rather than s 59). He seeks an amount of approximately $58,000, representing one third of his mother's one fifth share in the residue of Benedict's estate, to which her estate was entitled pursuant to Benedict's will.
Reginald relies on his Affidavits of 9 May 2019 and 27 August 2019 in support of his claim. Ellen relies on her Affidavits of 11 July 2019, 14 August 2019 and 30 October 2019. Ellen also relies on two Police reports: Exhibit A and Exhibit B.
Patricia was born on 15 December 1946 and died on 4 May 2018 at the age of 71 years. Reginald was born on 25 January 1968 and is currently 52 years old. He gives evidence of his estrangement from his mother since 1994: see paragraph 7 of his Affidavit of 9 May 2019. He claims that he attempted on several occasions to re-establish a relationship with his mother, such as prior to his wedding and following his son's birth, but that Patricia did not reciprocate.
Reginald puts his claim for provision on three bases. Firstly, he claims that he carried out work on the Belfield property, both when the property was owned and occupied by Benedict, and later when his mother occupied the property under a life interest. He also claims that Benedict promised him he would leave him the Belfield property. Secondly, he asserts that his mother did not know that she was going to inherit a share in the Belfield property (as distinct from the life interest in the Belfield property that she also received pursuant to Benedict's will) and that, had she known she was going to inherit a share, she "maybe" would have left Reginald a share in her will (see T30.30 and T31.46-50). Thirdly, I have understood his claim to be based also on the fact that he is an eligible person within the meaning of the Succession Act (which he is) who received nothing under Patricia's will.
The issues that emerge in this case are these:
1. Did the Plaintiff contribute to the value of the Belfield property?
2. If he did, what is the relevance of that contribution in relation to his mother's estate as opposed to a possible claim against his grandfather's estate?
3. Why did Patricia not make provision for Reginald in her will? More specifically:
1. Was Patricia aware that her estate would inherit one fifth of Benedict's estate?
2. To what extent was the undoubted estrangement between Patricia and Reginald the reason for Patricia omitting to mention him in her will?
3. What was the cause of the estrangement and how is that estrangement to be viewed?
1. Having regard to all of the factors identified in s 60(2) of the Succession Act, did Patricia make adequate provision for Reginald and, if not, should the Court make an order pursuant to s 59 of the Act?
Section 59(1)-(2) of the Succession Act is in the following terms:
"59 When family provision order may be made
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
[…]
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
There were only two witnesses in this case, Reginald and Ellen, and each was cross examined by the other. Although in the course of cross examination Reginald sought to minimise his assault on his mother in 1988, he eventually agreed that he had grabbed his mother by the throat, something which he had already accepted in his affidavit: see paragraph 8 of Reginald's Affidavit of 27 August 2019. Reginald did not shy away from his past but he did claim that some of the serious allegations made against him by others and found in Police reports were not true or that there were extenuating circumstances which explained the allegations of violence. There was a contest between Reginald and Ellen concerning the conflicts between them and Reginald sought to deflect the criticisms of his conduct towards his mother by endeavouring to assert that it was his upbringing and his mother's coolness to him as a child which had turned him into the unpleasant person that he had become. Ellen did point out that she and Monica had the same upbringing as Reginald, yet they had a good relationship with Patricia, even though Ellen had a history of serious heroin addiction. She admitted to having been incarcerated at the age of 19, but deposed to having been in no further "trouble" since then: T35.12-19.
Ellen was not shown to have told any untruths but her antipathy to Reginald was readily discernible. I note that Ellen and Monica long ago distributed most of the monies in Patricia's estate, notwithstanding the commencement of these proceedings. In my view, that involved a breach of their duties as executors and leaves them vulnerable to an order that they repay monies to the estate should the Court determine Reginald's claim in his favour.
I make the following findings of fact:
1. Reginald lived at the family home (i.e. the Belfield property) until 1993, except for a period between 1984 and 1985 when he moved in with his father (whom Patricia divorced in 1986). Reginald moved back in with his mother in 1985 because his relationship with his father broke down.
2. In 1988 there was a violent confrontation between Reginald and Patricia in which Reginald grabbed his mother by the throat and pushed her against a door. Reginald's aunt Carol intervened to break up the altercation. There is a dispute as to whether Ellen was present.
3. In 1993 there was another confrontation with his mother which led to the Police being called and Reginald leaving the Belfield property, never to return to it whilst his mother was alive. It is not clear whether Ellen was present at that confrontation either.
4. Reginald is, or at least was for many years, a violent and aggressive person who was addicted to drugs and alcohol. He claims to have had mental health issues as well, but no medical evidence was provided in support of that claim.
5. From 1994 until her death in 2018, Patricia had almost no contact with Reginald. The only two exceptions were these:
1. At the time of Reginald's marriage to his now ex-wife, his ex-wife's parents expressed the view that Patricia should be invited to the wedding. An invitation was sent to Patricia by the bride's parents, but Patricia did not accept it and did not attend the wedding.
2. In 2008, Reginald contacted his mother by telephone (on his evidence) and asked her if she wanted to see his son, who it appears was at least 9 or 10 years old by that stage (see Annexure PB-24 of Ellen's Affidavit of 30 October 2019 and T24). His main reason ("98%" of the reason, he says, noting that the transcript at T22.7 wrongly records this as "1998") was so that his son would have more contact with his relatives. According to Reginald, Patricia told him that she was not interested as "too much water had passed under the bridge".
1. Reginald has had a significant history of complaints against him of violence or threats of violence (up to 20) involving not only his mother and Ellen but also his ex-wife and son: see Exhibits A and B. At T26.44-48 there was the following cross examination between Ellen and Reginald:
"Q. I put it to you that your police record shows your violent nature and one was with a result of why the police had to attend and remove you from our mother's property?
A. I totally agree. When I was younger I did have a violent nature. I did have problems with alcohol. I did have problems with mental health."
1. Although Reginald sought to blame his conflict with Patricia as stemming from what he described as Ellen's criminal activities, it was not established what criminal activities she had been involved in or that this was the cause of the conflict between Reginald and Patricia.
2. Reginald was found guilty of assault occasioning actual bodily harm in August 2003, for which he was given a bond: see Exhibit A. Reginald claimed at T45.44 - T46.14 that he was charged and convicted for something he did not do. He had several other convictions, including for contravening a domestic violence order (1997), common assault (1997, 1999) and destroying or damaging property (2007).
3. Patricia made no attempt to reconcile with Reginald or to make contact with him.
Reginald claims that he performed work on the Belfield property and the claim covers two different periods - the first prior to 1982 and the second from 1985 to 1994. In the first period his grandparents were alive and living at the property. In the second period, his mother, who obtained a life interest under Benedict's will, was living at the property, as were Reginald and Ellen at times. At paragraph 15 of his Affidavit of 9 May 2019, Reginald lists his contributions (including assistance he provided to his grandparents), but even in 1982 he was only 14 years of age and Ellen asserted that all of the children helped the adults with work at the Belfield property "by way of getting tools and handing them tools and holding the tape measure and things like that": see T58.13-14 and also see paragraph 8 of Ellen's Affidavit of 11 July 2019.
In relation to the second period, Reginald asserts that he painted the house and did some building work, which included laying a concrete slab and erecting a prefabricated shed, some demolition work, building a barbecue and building an external storage shed (Reginald in his evidence describes one of these sheds as a "room"). Ellen deposed to the fact that the shed (or the "room") was built by Reginald for his own purposes, as he wanted a gym: see paragraph 8 of Ellen's Affidavit of 11 July 2019. She said what Reginald called a "room" was not the subject of planning approval and had to be significantly repaired due to its poor construction. She disputed that Reginald had carried out any painting work.
Reginald's claim in these proceedings is, of course, not made against Benedict's estate and nor is it a claim against Patricia's estate for reimbursement or recompense for the work he claims to have carried out. Rather, it is a claim that he is deserving of provision from Patricia's estate because of the improvements he made to the Belfield property when it was owned and occupied by Benedict and when it was occupied by Patricia as a life tenant.
Insofar as Reginald asserts some entitlement to provision based on work he did as a young teenager when his grandfather was alive, I am not persuaded that he provided any substantial contribution to the Belfield property or that it should translate into some entitlement from his mother as the beneficiary of a share in her father's estate.
Insofar as Reginald seeks to maintain that Benedict told him that he intended to leave the Belfield property to him after his mother died, the effect of Reginald's evidence at its highest is that he might have had some claim on Benedict's estate, which claim he did not pursue. Ellen says, and I think Reginald accepts, that Benedict told other relatives the same thing, and Reginald did say that perhaps it was the "alcohol talking": see T31.43. Once Patricia's estate received her one fifth entitlement to Benedict's estate, I do not accept that her estate received that share subject to any residual impediment in the form of a claim by Reginald. Hence, there is no basis for concluding that Reginald's contributions to the Belfield property whilst his grandfather lived there entitled him to any part of his mother's share in Benedict's estate.
In relation to the work carried out for the benefit of his mother as a life tenant, I accept that this theoretically could provide a reason for provision to be made, but not only is there room for doubt, on the evidence, as to whether the Belfield property benefited to any significant degree from Reginald's contributions, but it is work carried out long ago and also there is no evidence upon which I could make an assessment of what impact the work had on the sale price achieved for the property when it was sold many years later (and, consequently, the work's impact on the value of Patricia's estate). It would also be appropriate to consider whether such work as was done (for Patricia's benefit and not Reginald's) should be viewed as, in effect, a contribution to the household in lieu of rent or board, there being no evidence from Reginald that he made any contributions to Patricia from his earnings.
I draw the inference that Patricia decided not to include Reginald in her will because of at least two violent confrontations between them and because she was aware of Reginald's aggressive nature and history. It may well be that Patricia and her family were not of the "forgiving kind". Patricia and Reginald had no contact with each other for 25 years (apart from the one call in 2008, which Reginald admitted was primarily for his son's benefit rather than his own, as he wanted his son to have more contact with his relatives: see T21.9-13 and T24.26-30).
In relation to the issue of whether Patricia was unaware that she would inherit a one fifth share of the residue of Benedict's estate, Reginald's contention was only that Patricia might have included him had she known and Ellen's evidence is that Patricia was aware of the contents of Benedict's will. I am unable to conclude that Patricia was unaware of the contents of the will or that if she was unaware and then had subsequently been made aware, that she would have made different testamentary decisions to those she in fact made.
I discussed the principles relevant to estrangement in family provision cases in Burke v Burke [2014] NSWSC 1015; (2014) 13 ASTLR 294, which was considered on appeal by the Court of Appeal in Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313 (see, particularly, [87]-[94] per Ward JA, with whom Meagher and Emmett JJA concurred). Reference should also be made to Hallen J's decisions in Underwood v Gaudron [2014] NSWSC 1055 at [230]-[244] (the appeal from which was dismissed by the Court of Appeal in Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641) and Keaton v Gumulak [2020] NSWSC 943 at [230]-[234]. From these authorities, I draw the following principles:
1. The Succession Act interferes with the principle of freedom of testamentary disposition insofar as it requires the Court to consider whether, if the Act's threshold requirements are met, provision should be made for the maintenance, education or advancement in life of an eligible person (of which a son is one) for whom the testator made inadequate provision.
2. The Court will not make a family provision order simply on the basis that the applicant is a child of the deceased and is in financial need, but nor will a Court necessarily treat estrangement between the applicant and the deceased as precluding a family provision order. All the circumstances must be taken into account, including the applicant's needs, the needs of the other beneficiaries under the will (if they have put material forward) and the size of the estate, among other matters.
3. In cases of estrangement between the deceased and the applicant, the Court may need to consider whether the deceased bears any responsibility for the estrangement, such as, for example, if the estrangement is due to the deceased's irrational or factually false assumptions about the applicant.
4. Cases in the Court of Appeal such as McCarthy v McCarthy [2010] NSWCA 103 and Evans v Levy [2011] NSWCA 125 bring into this sphere consideration of the question of whether the relationship between the deceased and the applicant was such that it:
"created a moral duty on the deceased to provide for the [applicant] or that the community would have expected him to do so".
: see Evans at [51] per Young JA (Campbell JA and Sackville AJA concurring); also see McCarthy at [20] per Young JA (Tobias and Macfarlan JJA concurring) and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [13]-[25] per Gleeson CJ and at [113]-[121] per Callinan and Heydon JJ.
I will address each of the matters which the Court may need to consider under s 60(2)(a)-(p) of the Succession Act:
1. The Plaintiff is Patricia's son and is therefore an eligible person within the meaning of the Succession Act.
2. The only two beneficiaries of Patricia's estate are her daughters and, together with the Plaintiff, these three persons are her only children.
3. There is no notional estate.
4. In relation to the Plaintiff's financial position, he has a job in sales and purchasing, earning a net weekly income of $785 and he has accrued superannuation benefits of approximately $96,000. On his evidence, his monthly expenditure equals or exceeds his income.
5. The Plaintiff is not cohabiting with any other person.
6. The Plaintiff does not assert that he is currently suffering from any physical or mental disabilities.
7. The Plaintiff is 52 years of age.
8. The only contributions which the Plaintiff claims are the improvements he made to the Belfield property more than 25 years ago, which I have dealt with above.
9. There is no evidence that Patricia made any provision for Reginald during her lifetime other than what is normal for a parent raising a child to adulthood and beyond.
10. During her life, Patricia did not express an intention to benefit Reginald at all and did not acknowledge an obligation to do so.
11. Patricia did not provide in any way for Reginald's maintenance after 1993.
12. No person is liable to support Reginald. Reginald is employed and has superannuation benefits. He does not have any significant assets beyond his superannuation entitlement.
13. I have dealt with the Plaintiff's character and I regard this as a matter relevant to Patricia's decision to exclude him from her will, and as linked to the question of "moral duty" and "moral obligation".
14. I do not think that Ellen or Monica's conduct towards their mother is relevant.
15. Aboriginal or Torres Strait Islander customary law is not applicable here.
16. I do not think that there is any other matter that needs to be considered, other than to note that the estate is a very small one and neither Ellen nor Monica is well off financially, both receiving pensions. There was a suggestion that Ellen had an interest in a property at Casula but she explained that her ex-partner had retained that property and she had chosen not to contest his claim for the sake of her daughter and grandchildren, as she feared legal proceedings would have eroded the value of the house: see T57.26 - T58.3. There is a distinct possibility that Monica now owns an interest in a property in Lithgow, as there is evidence of Monica having paid approximately $50,000 to a real estate agent and the documents feature an address in Lithgow: see T56.37 - T57.6, paragraph 7 of Reginald's Affidavit of 3 February 2020 (although I note that he did not read this affidavit at the hearing) and Annexures PB-17, PB-18 and PB-19 of Ellen's Affidavit of 14 August 2019. Even so, given the timing of these payments to the real estate agent, it would appear that the money came from Monica's share of Patricia's estate, rather than from some source that pre-existed the inheritance she received from Patricia - this would mean that, but for the inheritance, there is no evidence of Monica being financially well-off.
In my view, Patricia was entitled, notwithstanding that Reginald was her son, to regard him as a person underserving of any benefit from her estate, whatever his financial circumstances at the time of his application and his contribution to the Belfield property more than 25 years earlier. I do not think that Patricia was under a moral duty to provide for Reginald or that members of the community would regard Patricia's decision to exclude Reginald as not right or as inappropriate.
Having regard to the circumstances that I have outlined, particularly the long period of estrangement and the reasons for it, the size of the estate and the situation of the named beneficiaries, I am not persuaded that any order should be made in favour of Reginald. I conclude therefore that his Summons should be dismissed.
I will also make an order that Reginald is to pay the Defendants' costs of the proceedings. I note that the costs are likely to be minimal, as the Defendants are unrepresented litigants and the normal rule is that unrepresented litigants (or "lay litigants", as they are also sometimes described) can be recompensed only for their out of pocket expenses, not for time they spent preparing and conducting their case: see Cachia v Hanes (1991) 23 NSWLR 304, which was upheld on appeal by the majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) in Cachia v Hanes (1994) 179 CLR 403. A short summary of the expenses which can be recovered, and those which cannot, can be found in G. E. Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) at [7.29], which I set out below to assist the parties:
"More generally, 'out-of-pocket' expenses can include court fees, transcript costs, expenses for serving documents, freedom of information fees, fees for searching registers, costs of appeal book binding, and incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions. They may also include compensation for attendance at trial by way of witness fee, namely a reasonable fee for time actually spent giving evidence in court. Excluded are a lay litigant's costs of travelling, parking and meals. Nor is a lay litigant entitled to compensation for time spent in collating material in preparation for giving instructions or evidence, refreshing recollection or making notes for this purpose, preparing the litigant's own affidavit, reading affidavits of other witnesses, or attendances in court for other witnesses' evidence. It follows that the costs of a lay litigant properly recoverable are likely to be much less than those recoverable had lawyers been retained."
(Footnotes omitted)
[2]
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: 06 November 2020