The plaintiff is a daughter, and one of seven adult children, of the late Mrs Pila Ruiz ("the deceased") and, in that capacity, she applies for family provision relief under Chapter 3 of the Succession Act 2006 NSW from the estate of the deceased.
Her standing to make the application is not an issue. A child of a deceased person is an "eligible person" within the meaning of s 57(1)(c) of the Succession Act 2006.
The application was brought within the 12 months after the death of the deceased prescribed by s 58(2) of the Succession Act. The deceased died on 26 September 2014. The plaintiff's summons was filed on 30 March 2015.
The deceased, aged 91 years at the time of her death, left a will dated 18 December 2002, probate of which was granted to the defendants (two sons of the deceased) on 19 December 2014.
The deceased died a widow. Her husband, the father of her children, died in 1974. The eldest of the deceased's children was born in 1943 and is presently aged nearly 72 years. The youngest was born in 1967, and is now aged about 48 years. The children in between were respectively born in 1947, 1950, 1952, 1954 and 1956. The plaintiff, born in 1947, is the second eldest.
The family migrated to Australia, from Spain, in 1961 and experienced tough times before establishing themselves within the Australian community.
By her will, the deceased made provision for each of her children, but to the relative disadvantage of the plaintiff and one of her sisters, the deceased's eldest child.
By clause 3 of the will, the plaintiff and that sister were each given a legacy of $500.
By clause 4 of the will, the residue of the deceased's estate was left to the plaintiff's five remaining siblings.
Clause 6 of the will contained a declaration to the effect that, for reasons known to the defendants, the deceased had made only "limited provision" for the plaintiff (and the eldest child) in clause 3 of the will.
Although the evidence leaves room for an element of speculation, the deceased appears to have taken offence that the plaintiff and her older sister (in about 2000) withheld from her, and retained for their own benefit (as they were entitled to do), a small benefit (worth between $5,000 to $10,000 each) to which they were entitled (as his children) from the Spanish estate of their late father. Their siblings deferred to the deceased in allowing her to take the benefit of their respective shares in that estate.
In what I take to be the deceased's penultimate will, her seven children were treated equally. Not so in her last will.
The deceased's estate is not large. The gross estate disclosed for probate purposes had an estimated value of just short of $421,000, representing:
1. a value of $360,000 attributed to the deceased's residence at Cambridge Park; and
2. the balance in bank account credits.
By the time of the final hearing, over the last two days, the deceased's residence had been sold (for $465,000), a "loan" had been made by the defendants to the first defendant to assist him personally, and the defendants had deducted some legal and other costs from the estate.
It is agreed between the parties that, after allowing approximately $110,000 for costs claimed by the defendants in relation to these proceedings, the estimated value of the available estate is of the order of $375,000.
The plaintiff's costs, assessed on the ordinary basis, have been estimated by the plaintiff's solicitor at about $84,000.
The costs incurred by the parties appear, at least in part, to reflect a degree of animosity that carried over into the final hearing.
I proceed to analyse the plaintiff's claim for family provision relief upon an assumption that, unless costs are capped, the present net distributable estate of the deceased is of the order of $290,000.
Each of the five children of the deceased named as a residuary beneficiary of her estate (including, but not limited to, the defendants) gave evidence in opposition to the plaintiff's claim.
The only one of the deceased's children who appears to have stood apart from the family's litigation is the daughter, other than the plaintiff, who, with the plaintiff, was given only a legacy of $500 in the deceased's will. She has made no claim for family provision relief herself. She gave no evidence, on either side of the record, in the current proceedings on the plaintiff's claim.
Each of the deceased's children who gave evidence was challenged, to a greater or lesser extent, about the completeness or accuracy of his or her disclosure of his or her financial circumstances, past or present.
Making due allowance for criticism of their evidence, I am satisfied that none of the residuary beneficiaries could attract a description as "wealthy", but each of them is materially better off than the plaintiff. Each of the residuary beneficiaries could reasonably be characterised as essentially middle class.
Given the small size of the net distributable estate, there is no necessity for, or utility in, a close examination of each beneficiary's financial circumstances. The deceased's estate is not large enough to meet all the claims all her children could be held, reasonably, to have on her bounty.
The plaintiff is, comparatively, in necessitous circumstances. She and her husband depend for their income on social welfare, they are both aged in their late 60s and they live with one of their children.
Born in 1947, the plaintiff is presently aged 68 years. Her husband, born in 1946, is presently aged 69 years.
Married in 1967, they have two children.
The first, a daughter, was born in 1970 and is now aged 45 years. She is herself married, with two young adult children. The plaintiff and her husband live with this family.
The second child of the marriage, a son, was born in 1971, and is presently aged 44 years. Like his sister, he is married with two young adult children.
The defendants' opposition to the plaintiff's claim can be summarised as focusing on five grounds of criticism.
First, the defendants point to a failure on the part of the plaintiff to disclose in her affidavit evidence, and to account for, $90,000 she received on a workers compensation claim in 1996, a substantial proportion of which money she used (together with other funds available to her husband and herself) for the benefit of her children.
Secondly, the defendants say (as did the deceased, perhaps) that any impecuniosity experienced by the plaintiff is in large measure a product of a gambling habit associated with her regular attendance, with friends, at a registered club, where she habitually plays poker machines, possibly losing up to $13,000 or thereabouts in a 12 month period.
Thirdly, reliance is placed by the defendants upon the deceased's deliberate decision to limit the plaintiff to a $500 legacy, in a presumed response to the plaintiff's refusal, in about the year 2000, to defer to the deceased in administration of her late husband's Spanish estate.
Fourthly, the defendants point to the fact that in the years preceding the making of the deceased's will, the deceased assisted the plaintiff with a loan of the order of $5,000 to $8,000 which was not repaid, and which the plaintiff says she could not repay on account of her impecuniosity.
Fifthly, the defendants point to a period of estrangement between the plaintiff and the deceased that commenced with the plaintiff's refusal to give up her interest in her father's Spanish estate in favour of her mother, and continued until the death of the deceased more than a decade later.
In short, the defendants contend that the plaintiff is undeserving, and the author of her own misfortune.
The case for which they contend draws some strength, and bears weaknesses, associated with reasons that might be inferred from the evidence as reasons of the deceased for limiting provision made for the plaintiff.
In my assessment, very sad though disputation between mother and daughter in retrospect is, it affords no basis for a de facto exclusion of the plaintiff from participation in the deceased's estate.
Attribution of blame in the breakdown of the personal relationship between the plaintiff and the deceased is not easily done. The plaintiff says, and I accept, that she felt constrained by her own impecuniosity not to give up her small entitlement in her father's estate in favour of her mother.
That there was a breakdown in the relationship between the plaintiff and the deceased is not in dispute but, in the context of relationships within the family, it is not entirely a mystery.
So far as they have made themselves known to the Court, through their evidence, the deceased's children appear to have been well versed (possibly at the knee of the deceased) in holding a grudge, even at cost to themselves and family relationships which, ordinarily, would be of major significance to them all.
In my assessment, the conduct of the plaintiff, in holding on to her entitlement to a share of her father's estate, was not such as to justify the deceased, acting reasonably, in effectively excluding the plaintiff from participation in her estate. She too played a part in the breakdown of a personal relationship that was, before their falling out, a reasonably close one.
The deceased, it seems, was denied knowledge of the extent to which the plaintiff, her daughter, was in need as she aged.
The function of the Court is to make an assessment, having regard to what is wise and just and to community values and expectations, as at the present time.
The legal costs incurred in pursuit of, and in opposition to, the plaintiff's claim are disproportionate to the size of the estate or anything that the plaintiff could reasonably expect, vis à vis her siblings, to recover on an application for family provision relief.
That said, I am satisfied that, within the meaning of s 59(1)(c) of the Succession Act, adequate provision for the proper maintenance, education, or advancement in life of the plaintiff has not been made by the will of the deceased.
Accepting that, in the 1990s or thereabouts, the plaintiff used resources available to her to confer benefits on her children, the extent of the benefits thus conferred were not profligate or ill-considered, and the fact remains that the plaintiff is left without resources and dependent upon social security and the goodwill of her children, her daughter in particular.
A review of the topics enumerated in section 60(2) of the Succession Act refocusses attention on relationships within the family of the deceased, including relationships between the plaintiff and her siblings and their respective relationships with the deceased; the age, impecuniosity and personal circumstances of the plaintiff; and the smallness of the estate; as well as the deliberate character of the decision made by the deceased in the provision she made for her respective children in her will.
In the context of a consideration of the significance of estrangement, and in reaffirmation of the need in the Court to consider community values, my attention has been drawn to Burke v Burke [2015] NSWCA 195, as well as Andrew v Andrew (2012) 81 NSWLR 656, as cases of contemporary significance in the adjudication of family provision disputes.
One should always return to the language of the statute, avoiding all glosses, and taking into account, so far as one can, all the circumstances of the case, including any estrangement and any explanation for estrangement in personal relationships.
In the end what is required is an evaluative judgment, taking into account, not only what might be wise and just on the part of a testatrix to do with her estate, but also, and perhaps especially, what might reasonably be thought to be reflective of contemporary community values.
Approaching the case in that way, and taking into account all the factors I have recorded in this judgment, particularly but not only the five grounds of opposition to the plaintiff's claim, I am satisfied, for the purpose of s 59(2) of the Succession Act, that provision ought to be made out of the estate of the deceased for the maintenance, education, and advancement in life of the plaintiff.
Although the plaintiff's siblings are, in my assessment, better off than the plaintiff, they are not so well off that they should be compelled, against the deceased's recorded wishes, to give up their entire interest in the estate of the deceased for the benefit of the plaintiff, or to be placed at a relative disadvantage compared to the provision made for her.
The appropriate form of relief to be made in favour of the plaintiff is a legacy, which I quantify in the sum of $50,000.
Counsel appearing for the respective parties have both made submissions about a need to cap the legal costs to be taken from the estate of the deceased.
In the interests of the beneficiaries I am sympathetic to those submissions, but I am not confident that a capping order of severe dimensions would do anything significant to change the incidence and costs of the proceedings, bearing in mind the costs arrangements that, I assume, exist between the parties and their respective lawyers.
A capping order affecting the plaintiff's costs would preserve the estate of the deceased, but not necessarily save the plaintiff from a liability to pay solicitor-client costs from her legacy. That is an issue unexplored, perhaps dependent on an assessment process.
A capping order affecting the defendants' costs might operate unfairly to their disadvantage, vis à vis their fellow residuary beneficiaries, all of whom actively opposed the plaintiff's claim.
All in all, I propose to make the following orders:
1. ORDER that, in lieu of the provision made for the plaintiff in the will of the deceased, she be granted out of the estate of the deceased a legacy of $50,000.
2. ORDER that that legacy shall bear interest at the rate prescribed by s 84A of the Probate and Administration Act 1898 from a date 28 days after today, if not earlier paid.
3. ORDER that the plaintiff's costs (capped at $70,000), assessed on the ordinary basis, be paid out of the estate of the deceased.
4. ORDER that the defendants' costs of the proceedings be paid out of the estate of the deceased on the indemnity basis.
5. ORDER that exhibits and subpoenaed material may be returned forthwith, any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
I propose also to make an order that these orders be entered forthwith.
[Counsel addressed on costs, arising from offers of settlement made at or about the level of the provision ordered by the Court, in a manner not calling for report. The orders proposed were thereafter made by the Court].
[3]
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: 18 November 2015