Brunker v Collins

PARTIES : Jeanette Brunker v Robyn Faye Collins

COUNSEL : Mr P Doyle Gray for defendant

SOLICITORS : Mr Neil Lyon for plaintiff HQF Lawyers for defendant

• 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Frank Hedisan who died on 25 February 2004. He was survived by his son and daughter.

2 The last will of the deceased was made on 27 March 2002. Under that will he left his estate as to one half to his sister, Norma Harrison, and the other half to his sister-in-law, Winifred Loffler.

3 The estate has been reduced to cash and amounts to $405,000. The costs of the defendant to date are some $33,364. The costs of the plaintiff total $58,712. This is a very large amount, in part due to the fact that there is an uplift factor included in those costs. That uplift factor is the sum of twenty-five per cent. In the matter of Day v Perpetual Trustee in a separate judgment on costs on 3 August 2001 I set out the reasons why I would not normally allow such an uplift factor if the plaintiff were successful and costs were ordered. I will not set out those reasons again in detail but they are available in that judgment.

4 The deceased married in June 1946 and his son John was born on 10 January 1948. Jeanette was born 1 October 1952. In 1971 the plaintiff's parents separated. This was a somewhat difficult time for the plaintiff as apparently the deceased left home and went to live with, and indeed married, his wife's sister. The plaintiff did not hear from her father after he left. She was at that stage some nineteen years of age. Two years later when she turned twenty-one she received a birthday card and $100.

5 Jeanette married in December 1975 and moved out to their own home in 1976. Apparently in 1977 the deceased remarried. There was evidence given of statements by the deceased from this time on until about 2002 that he was disappointed that his children had not contacted him. The plaintiff had a son in mid 1977 and a daughter in 1979. For the first time at that stage she found out that her father was living at Tweed Heads. This occurred because a relative of hers was actually living across the street from him. Jeanette had another son in 1985.

6 Jeanette's mother died on 7 November 1999. Because of matters to which I will refer later Jeanette felt that she did not want, up until this time, to contact her father. After her mother's death and in 2001 she started to try and trace her father. She contacted her Auntie Ruby at Tweed Heads and later went to a library to try and find out what his address was. In due course she wrote a letter to him and contact was reinstated later that year. In early 2002 the contact became quite regular, usually on a Sunday. The deceased made his will in March 2002.

7 The plaintiff that year also moved to a property that they purchased at Hill Top. That is a five acre property in which they keep horses and also raise rabbits, a hobby of the plaintiff.

8 The deceased died on 25 February 2004. Some time before that the plaintiff had difficulty trying to contact her father and she wrote to him in an endeavour to make contact. The telephone apparently was disconnected. In due course she found about his death from her aunt. This occurred in March 2004. In due course probate was granted on 15 June 2004 and these proceedings were commenced within time.

9 The plaintiff is a daughter of the deceased. The evidence contains a series of statements and allegations around about the time of the break-up of the parents' marriage in which it was suggested the deceased was not the father of the plaintiff and her brother. Those matters are irrelevant as the parents were married at the time and the plaintiff is deemed to be the daughter of the deceased and, thus, an eligible person. I mention that the son of the deceased was given notice of the proceedings but makes no claim.

10 In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there we no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors". 11 As directed by the High Court I turn to consider the plaintiff's situation in life. She is aged fifty-three and married with grown children. She and her husband live on their five acre property, which is worth some $550,000 and they have a number of other items of personalty and cars. There is a mortgage on the house of about $137,000. They also borrowed $10,000 from her husband's parents and owe this amount and her husband has recently entered into a hire purchase agreement for a new truck for $16,000.

12 The plaintiff works as a process worker and earns $476 per week. A large amount is spent on petrol because she has to travel 160 kilometres to and from work each day. Unfortunately her situation where she could work at home no longer exists and she is committed to spending a large amount on those costs.

13 Her husband is now a permanent employee and he earns $632 per week.

14 It is of course necessary to consider the relationship between the deceased and the plaintiff. As I have said, the plaintiff was abandoned by her father when he left when she was only nineteen years of age. She did not hear from him or know where he was for some two years.

15 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person."

16 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word 'ought' in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

... It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose. The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased. In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that 'many cases suggest that an applicant must show a moral claim ...', he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme. It seems to me that the introduction into s 7 of the present Act of the word 'ought' in replacement of the words from s 3 of the 1916 Act 'as the Court thinks fit' shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word 'ought' seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case." 17 Meagher JA (NSWLR at 57) agreed with Priestley JA.

18 Meagher JA had previously expressed a view in Hughes v Hughes (Court of Appeal, unreported, 6 June 1989) (an adult daughter case) that the duty arose to make provision as established in that case as follows: "Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added) 19 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

20 In Benney v Jones, Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That questions remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1 Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 21 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation." 22 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales' case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 23 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales' case. He said: "Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962." 24 Bryson J in any event distinguished Scales' case (p 11) on the basis that on the facts before him the plaintiffs: "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..." 25 In Walker v Walker (unreported, 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows: "In Singer's case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that 'we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language'. They then say 'the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty." 26 Young J also observed: "In Fraser's case, Kirby P at p 29 said that 'I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty.' However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law 'either by the observations of the majority in Singer or by the High Court's reference, in the footnote to what Murphy J said earlier (p 27).' Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words 'moral claim' in decisions under this Act. Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, 'the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficiently to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order."

27 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

28 In Walker v Walker (p 27) Young J noted: "It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff. Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant...". 29 The plaintiff gave evidence that she felt that although she might have thought of secretly contacting her father, she thought that her loyalties lay with her mother. That may have been a little bit misguided but in the circumstances in which the separation occurred it is not an unnatural reaction from a daughter. She was quite hurt by the separation. They are really the reasons why she did not have anything to do with her father over thirty years. It was basically her loyalty to her mother. Importantly though, once she felt that she had no longer had that loyalty she did take the time and effort to make contact with her father. This was at about the time of the will. There is evidence of statements by the deceased saying he did not want contact with his children or them to know about his death. But the evidence is quite clear that this contact did continue up until the date of death and particularly the efforts that the plaintiff made at the time of her father's death attest to the extent of the bond which there was between them at that stage. The thirty year gap in the relationship between the plaintiff and the deceased is in the circumstances of this case not something which I would think which would disbar the plaintiff from claiming. It is a factor to be taken into account because in that period the deceased did not have contact with the plaintiff. However, one thing that is clear is apart from sending a Christmas card and when the plaintiff turned twenty-one there does not seem to be evidence the deceased himself made further attempts to contact his children. In all these circumstances there was some reduction in the extent of the obligation which would be owed by the deceased to provide for his daughter.

30 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In her affidavit in support she listed a large number of small personal items that would help her personal life. These range from items of electrical goods to grass seed so that she could re-sow dry and dusty paddocks on their five acre farm. The total of all these amounts is $32,000. It is, in fact, what is often described in these cases as a shopping list of wants. It seems to be that the plaintiff has thought of everything that would be useful to make her life more comfortable at the moment. There is also the personal loan which she and her husband have to his parents and they would like to repay that, and importantly she has a large mortgage of $137,000 which requires repayment.

31 It is necessary for me to also consider the situation in life of others having a claim on the bounty of the deceased. In this case the only two are the two beneficiaries. Norma Harrison is aged seventy-seven, a widow, and has no dependants. She lives on the age pension of $327.55 per week and has expenses of $189 per week. She is not in the best medical condition, having had two spinal operations in the last twelve months and she has pain and mobility problems. She is a diabetic and has to have a strict regime in regard to that illness. Effectively she cannot walk more than 100 metres at a time. This means she lives a very confined life, not being able to go out. She has a house worth $500,000, a small amount of cash and personal items. She has no liabilities. There is little in the evidence to suggest that there was any close relationship between the deceased and his sister but clearly there was nothing saying that there was not an ordinary and good relationship between the siblings. In her affidavit she talks of some of the difficulties she has around her home. She needs to install ramps and add bathroom rails, fix an uneven concrete pathway and repair fencing. She also has a need to pay for medical attention, such as a nurse to check on her, and she would like to buy some furnishings, a more comfortable bed and mattress to ease the pain in her back. These are very basic matters. Unfortunately there is no evidence of the quantification of them but plainly something from the will would be of great assistance to her.

32 Winifred Loffler is aged seventy-three, a widow and has no dependants. She also lives on the pension which is $332.55 per week and has expenses of $388.97 per week. She does not own a home and she has got bank accounts totalling some $13,121. She has, however, secure accommodation as she lives in a Housing Commission villa. In regard to the relationship between her and the deceased there is not a lot of evidence but clearly there was nothing to suggest anything unusual in it. She has recently been diagnosed with emphysema and believes that this will get worse. She does in fact want to, in due course, relocate to her daughter's residence. She says the residence is small and she will need to make some alterations to live there. At the moment she is staying in the home but she will have to relocate soon. It is funds for this which she advances as the main thing which she could be assisted from the estate. Unfortunately the court has no idea of what these costs are as there has not been quantification of such costs.

33 I am satisfied the plaintiff has been left without adequate provision for her advancement in life. She was in fact the daughter of the deceased and there was, unfortunately for the deceased and her, not the fullness of the relationship which one would normally expect after all these years.

34 The beneficiaries are a sister and a sister-in-law of the deceased and normally a daughter's claim would take some priority over their interests.

35 In the circumstances I think that the appropriate order is that the plaintiff receive a legacy of $150,000.

36 The orders I make are as follows: (1) The plaintiff receive a legacy out of the estate of the deceased in the sum of $150,000. (2) Interest will be payable on the legacy if not paid within one month and on and from that date at the rate provided for under the Wills, Probate and Administration Act 1898 . (3) The plaintiff's costs, excluding any other uplift factor, on a party and party basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased.

11/05/2006 - Lower Court decision deleted as there was no Lower Court decision which was inserted in error - Paragraph(s) Not applicable

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