Carney v Jones

7The defendant's costs are $64,000 and executor's travel costs $8,000, totalling $72,000. This brings the estate down to $482,758. If the plaintiffs' costs of $65,000 are deducted, the net estate will be $417,758. From this will have to be deducted the legacy agreed for Judith of $60,000 and her costs, which are likely to be in the order of $20,000. This leaves an estate of $337,758 before any legacy or provision for Clement and Alva.

FAMILY HISTORY 8The testator was born in May 1917. She married Leslie Jones on 26 December 1939. They had a child, Russell, who was born in 1943. Clement Jones, one of the plaintiffs in the proceedings, was born in November 1943 and at the age of two years old he was made a ward of the State. He was taken in by the deceased and her husband in 1950 as a foster child. 9The other plaintiff, Alva Mary Griffiths, was born in February 1948. She was made a ward of the State in 1952 and in March 1953 she entered foster care with the deceased and her husband. She was then five years old. 10The other daughter, Judith, was born in March 1956 and she became a ward of the State, eventually going into foster care with the deceased and her husband and later being adopted. 11By 1958 Clement had left school and become an apprentice panel beater. During this period he paid board to the testator and he continued living there for some time. It was in July 1959 that Judith was taken in as a foster child. 12In November 1959 there was an incident which led to Alva being returned to the care of the Department of Child Welfare. She was placed in the Bidura Home at Glebe before being moved to Lynwood Hall. At that stage she was aged eleven years and nine months. In 1961 she left that accommodation and was fostered by another family. 13In September 1962 Judith was legally adopted by the deceased and Leslie Jones. 14In the period of 1963, Alva went to several foster homes and then went to a boarding house in Leichhardt and started her working career. At the end of that year she made contact again with the deceased and her husband. She wrote to them and spent time with them every few months. 15In 1964 Clement changed his name to Clement Richard Jones by deed poll. That was the year in which he celebrated his twenty-first birthday and had a party with his future wife, Helen, the deceased and her husband attending that celebration. He, of course, still lived at home. 16In 1965 Russell moved to Hong Kong and he still resides in Hong Kong. In October of that year Alva married Thomas Beck and the deceased and her husband attended the wedding. 17In 1966 Clement travelled by ship to England for a holiday. He was taken to the ship by the deceased and her husband and they made contact during his overseas trip by letters once a month. 18In 1968 Alva moved to Melbourne after separating from Mr Beck but kept in contact with the deceased. 19In that year Clement returned by ship from England and was picked up by the deceased and her husband. He married in December 1968 and both the deceased and her husband were at the wedding, along with her parents. The deceased and her husband sat at the bridal table. Thereafter, Clement and his new wife moved into a rented property and they continued to see the deceased and her husband each weekend. 20By 1969 Alva had returned to Sydney and kept up her meetings and telephone conversations with the deceased. In 1969 Clement and his wife moved to Port Macquarie and they used to then come down and see the deceased, three times over the next four months. 21In 1970 the deceased and her husband moved to Tweed Heads. There was still contact at this stage between Alva and the deceased and her husband. In December 1970 Clement and his wife went to stay with the deceased and her husband for the Christmas holiday period. They did this for the next six years. 22In 1974 Alva commenced a relationship with Roger Medus. They stayed with the deceased and her husband for two weeks in 1976 and 1977. Similarly, Clement and his wife stayed with them at some stage while travelling around Australia. 23On 7 January 1977, Clement's daughter, Catherine Jones, was born and the deceased and her husband visited them from Tweed Heads for the christening. Similarly, in 1979, when their child Elizabeth was born, the same thing occurred. 24From 1977 up until 1982 Clement and his wife used to visit the deceased and her husband at least once a year as well as the holiday period and had frequent telephone contact. 25In 1981 Alva travelled with the deceased and her husband to Hong Kong, staying with Russell and his wife for four weeks. The deceased and her husband paid for Alva's air fares. 26In 1982 Clement and his family moved to Beenleigh, which was only about an hour's distance from Tweed Heads. They lived there for several years and continued the contact. 27In 1984 Alva gave birth to her child Derek, with whom she still lives. At this stage Clement and his family moved to Newcastle, but still kept contact several times a year in visiting the deceased and her husband. 28In 1985 Derek was baptised, with the deceased and her husband attending. Alva and Derek visited the deceased and her husband in September 1985. Unfortunately, the next month she and her husband separated. 29In 1986 Alva and Derek stayed with the deceased and her husband for a holiday. Alva remarried in January 1988 and her foster parents attended. Leslie Jones, her foster father, gave Alva away. This marriage, unfortunately, did not succeed. 30In 1994 Alva and her son Derek moved to Tweed Heads and lived with the deceased and her husband for six weeks before moving into rental property. In 1995, when the deceased had surgery, Alva visited her every day in hospital. In 1999 similarly she visited Leslie Jones when he had surgery and she used to take the deceased to hospital to visit him every day. 31In 1997 Clement and Helen separated and later divorced, but this did not interrupt Clement's contact with the deceased. 32The deceased and her husband had a 60th wedding anniversary in 1999, which was organised by Alva and attended by all the children of the deceased and her husband. 33In April 2003 the deceased's husband had a fall which caused an ulcer on his leg. There was a long hospitalisation and the leg had to be amputated. He was moved to a nursing home and visited by Alva. At this time the deceased asked Judith and her family to move into her home. They did that for three months. 34The deceased made her will on 3 November 2004 and on 23 June 2005 the deceased's husband died. Alva, who had been notified, drove to the deceased's home and told her and also supported her with an appointment she had with a cancer surgeon that day. She had recently been diagnosed with breast cancer. Alva convinced her to keep the appointment, and drove her there. That surgery occurred the following month. 35From then on Alva used to take the deceased for daily radiation therapy over a period of eight weeks. In September 2005 she moved in with the deceased as a full-time carer, along with her son Derek. Derek moved to Brisbane in January 2006. 36In 2007 Alva and the deceased were holidaying at Norfolk Island, where they celebrated the deceased's 90th birthday. 37In May 2007 the deceased lost her driver's licence and so Alva purchased a car for $3,000 and continued to live with the deceased, although there were difficulties because the deceased took the loss of her licence very hard. This led to Alva having a month off work for a holiday. 38In May 2008 Alva was assessed by ACAT and in July 2008 Russell and his wife came from Hong Kong and stayed with the deceased. At that stage Russell arranged for a loan from the Bank of Queensland so that the deceased could move into the Retreat at Bangalore. Alva agreed to pay $240 per week rent, which is about half market rent, to the Bank of Queensland and Russell, over the next period, paid or made interest payments on the loan. He will, in due course, be repaid for those contributions from the estate. 39Alva continued to look after the deceased's house and remained and kept visiting the deceased. There were visits by Russell and his wife in February 2010 and Clement. In May 2010 the deceased was in hospital for two days suffering from a urinary tract infection. Alva was there at her side. 40As a result of a visit from Alva to the deceased at the Bangalore Retreat, a doctor was called and an ambulance and the deceased was admitted to hospital with a chest infection. She died on 12 May 2010. These proceedings were commenced in 2010.

ELIGIBILITY 41The two plaintiffs are eligible persons, since they were both dependent on the deceased and part of the deceased's household. However, it is necessary under s 59(1) of the Succession Act 2006 that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McClelland J, when considering the equivalent expression in the Family Provision Act 1982, described that expression in the following terms: "Secondly, the subsection appears to be premises upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 42It was the defendant's submission that as the two remaining plaintiffs were foster children, there was no moral duty to provide for them after they turned eighteen. This was expressed in their submissions as follows: "17. To undertake to adopt a child, as opposed to foster a child, involves significantly different consideration s and different, and greater, obligations. 18. The moral obligation on agreeing to foster a child (or what might be considered to be right and proper according to contemporary accepted community standards) involves undertaking an obligation for maintenance of the child, usually with financial assistance, but does not involve an undertaking regarding advancement, particularly in the child's adult years. 19. Fostering often commences with short term respite/holiday stay. If it then moves on to a more permanent arrangement it is: (a) One desired to provide a significant benefit to the child in need, that benefit being relief from State care (or removal from an unsatisfactory family situation) during the child's minority to, at most, age 18; (b) An undertaking by the foster parent only during the minority of the foster child, not undertaking beyond that; and (c) Not an undertaking to adopt the foster child, nor the creation of a relationship such as that created by adoption. 20. It is submitted that it is only if events after the foster child achieves the age of 18, or there are special circumstances which demonstrate that notwithstanding a failure to adopt the foster child the foster parent considered the relationship to be akin to an adoption (for example where adoption could not take place, despite the wishes of the fostering parent, because of non-co-operation by a biological parent) that the moral duty of the foster parent, subject to competing claims and the extent of his or her estate, carries on beyond the foster child's age of 18." 43The present question of whether there are factors warranting the making of the application in this case are partly answered by the deceased's actions in leaving them provision in her will. But, as the question raised will affect the Court's consideration of the extent of the moral duty to be considered on the jurisdictional question, it is useful to address it at this stage. 44Russell gave evidence of conversations with both his parents when they explained their actions in these terms: "It's important that you should know what will happen when we die. We have given some cash money to Judith and Clem and a larger amount to Alva and left everything else to you. You and Anna and your children are our real family and you have provided us with so much support over the years. We believe we were doing a good thing in fostering the other 3 children but know it must have impacted on you and your life. We have done our best for all Alva, Judith and Clem by providing them with a better life." 45Precisely why the deceased gave a slightly larger share to Alva is not explainable on the evidence but it is apparent on the face of the will. Importantly, the will made in 2004 predated the time when Alva moved in and provided considerable help to the deceased in the last five years of the deceased's life. This was also notwithstanding the break in the relationship with Alva when she was eleven years old. Plainly, the deceased in 2004 felt a different obligation to her fostered children than to her natural son. 46The defendant points to many discussions in the cases on this topic relating to the "bare fact of paternity" and its importance in the consideration of the moral obligation which a testator bears to provide for children. 47In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J rationalised the decision in 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." 48In Gorton v Parks at pp 9 to 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 acknowledgement 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 acknowledgement or legitimacy. The idea that acknowledgement 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." 49There was also comment in Nicholls v Hall (2007) NSW 356 in these terms: "There are some statements in the cases that could be understood as meaning that, if there is nothing more than 'bare paternity' in factor (1) the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance." 50Making a conscious decision to bring a child into the world brings with it responsibilities. Taking a child into care without adoption does not involve the same commitment. If it does not work out, the foster parents can give the child back to the State, which will resume its care for the child as a ward of the State. However, experience teaches us that the initial starting point can change over the years as, hopefully, the child and the foster parents grow together in their relationship. 51One frequently sees cases where a foster child is treated as a natural child by the foster parents. This occurs not only with a childless couple but also with other families who also have a natural child as well as the foster child. 52To suggest that there is such a major difference in the obligation owed to a natural child compared to that owed to foster children ignores the complexities of relationships which occur in each individual case. 53As has been said before, 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. 54For example, if after a year of foster care a child is returned to the State and there is no further contact for the remaining fifty years of the deceased's life, one may well conclude that there was no duty to provide for the child. 55In this case we have a quite different situation. Both children maintained their contact with the deceased for the next fifty years after they grew up. That contact and the relationship arising from it was so important that Alva adopted a position of major responsibility for the deceased in the last five years of her life. 56The relationship with Clement did not finish when he turned eighteen and ceased to be a foster child. He stayed living as part of the family until he married at age twenty-five. When he married, the deceased and her husband, as I have said, sat at the bridal table. 57Plainly in this case there are factors warranting the making of the applicant. The relationship between both of the plaintiffs and the deceased had moved far beyond the bounds of their foster care origins. 58In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (19412) 181 CLR 201 has set out the two-stage approach that a court must take. These comments are equally applicable to claims under the Succession Act 2006. At p 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' et cetera 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 et cetera 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 were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

SITUATION IN LIFE OF CLEMENT RICHARD JONES 59Clement is sixty-seven years of age, single with no dependants. He lives on his own in a Housing Commission unit and receives the aged pension. His only asset is a 1995 Toyota Hiace worth $13,000. He has a credit card debt of $4,568. He is not in good health and suffers from chronic obstructive pulmonary disease, congestive cardiac failure and reflux. 60I have already dealt with his relationship with the deceased, which was supportive and constant. He did not contribute to the estate and he was benefited by being taken into foster care and being part of the family.

SITUATION IN LIFE OF ALVA GRIFFITHS 61Alva is sixty-one years of age and now lives in rental accommodation with her son Derek, who contributes $100 a week to expenses. She is a disability support worker with few assets. She has $4,000 in the bank, a 1994 car worth $3,200 and superannuation in the order of $48,000. 62Her fortnightly salary is $1,888. She has expenses of $1,568, with the contributions to superannuation using the rest of her income. She has a lower back injury, sustained at work, which is treated by medication and physiotherapy. She has to take antidepressants. 63Her relationship with the deceased was good and she cared for the deceased in the last five years as a natural child would have cared for their parent. She did not contribute to the estate and she had the benefit of five years' care in the family.

SITUATION IN LIFE OF RUSSELL JONES 64Russell is sixty-nine years of age, married with no dependent children. He has been retired for some years. He and his wife live in a flat in Hong Kong. The valuation of that flat was referred to in these terms: "In response to your enquiry, we estimate the possible value of the above property to be in the range of HK$28-32 million. However, for your information there have been a couple of units in 9 Conduit Road on the market for some time in this price range. They have not sold due to the current market condition and this could influence the value. The last sale in 2009 was for HK$10 million." 65The last sale may well be the true value, which will put the property at a value of Australian dollars $1,250,000. Russell and his wife have cash on deposit of $84,111, but they have debts to bankers and others of $429,031. 66Recently, Russell's wife's mother has died, leaving an estate in Australian dollars of $2.9 million, to be shared between six children. Apparently there is no will. Whether she will get one-sixth of this amount, namely, $483,333, is unknown. There are two sons in this Chinese family to share in her mother's estate. It is unknown whether the fact that there are male children will affect the division between the various children. 67As I have said, Russell and his wife are residents of Hong Kong and they receive no pension. They are required to pay their own medical, dental and hospital insurance costs as there is no universal medical system in Hong Kong. They do not receive any government benefits, nor do they have any social welfare system to fall back on. They do not own a car. The flat they live in is their only asset and they are presently living on their savings. 68Even if his wife was to receive something from her mother's estate they may get rid of their other debts, or some of them, but they will at best end up with some small amount of savings which will be rapidly depleted as they have no income. 69The relationship which Russell had with his mother was a good one and a supportive one. Initially he used to return to Australia in order for him, his wife and his children to spend time with his parents. They spent many a Christmas together in Hong Kong and Australia. At this time he also paid for the parents' first trip outside Australia to visit places in Asia and stay in Hong Kong. 70He also brought over his mother's sister, Aunt Nancy, to accompany them. There were further visits after the first, and Russell paid for visits to Shanghai and Sou Zhou in China, and later for several holidays they took together in Australia. 71For many years he sent money to his parents on a monthly basis to help ease the financial burden as they grew older. Their appreciation for this was expressed verbally and in a letter from his mother. She said: "I'm sure I speak for your Dad as well as myself as I write to thank you and Anna for all the help you have given. To tell you how God really blessed us when He gave us you ... especially for His provision through you." 72There was also, of course, the help that Russell gave in relocating to the retirement village when she moved there and advancing the interest on the loan.

DISCUSSION 73It is necessary to see how the plaintiffs say they have been left without adequate provision for their maintenance, education and advancement in life. In this case, given the small size of the estate and the competing claims of Russell, which are quite strong, there can be no question of providing funds for the plaintiffs to purchase a property. 74Alva suggests that she has the following financial needs: (a) That she has limited savings and would need at least $10,000 to meet any unforeseen life expenses. (b) Her motor vehicle is very old and unreliable and she will need $20,000 to $25,000 to replace it with a new vehicle that has a warranty. (c) That she will need private health insurance, the cost of which is approximately $1,600 per year. 75There is no calculation of what any lump sum itself would be. 76Clement also suggests that he has financial needs in these terms: (a) $31,864 to purchase a new 2010 Toyota Hiace. (b) $3,600 to replace his refrigerator, washing machine and television. (c) $4,568 to pay off his Westpac Ignite credit card. (d) $60,000 to put in an interest account to provide him with approximately $3,000 income per year. 77These suggestions have to be seen in the context of Russell's position. Although he has a flat he lives in a society where there are no social services to provide pensions for the elderly. He faces an uncertain future and even if his wife receives a reasonable part of her mother's estate, he only has very few savings upon which he is forced to rely to meet his living expenses. Plainly, he faces selling his house to meet his expenses in the future. 78Both Clement and Alva are fortunate they live in Australia and at least have or will have a pension income. 79In assessing what is appropriate provision, one has to have regard to what the claimants have done for the deceased. Russell has supported his mother financial throughout his life and Alva has helped the deceased in a very practical way in the last five years of the deceased's life, although Clement has not supported to the same extent. 80In the circumstances of this case and bearing in mind that there is only $335,000 left to split between the parties, I propose to make orders that in lieu of the legacies which they received under the will, that Alva receive a legacy of $80,000 and that Clement receives a legacy of $50,000. 81Accordingly, the orders that I make are that in lieu of the legacies provided to them in the will of the deceased, that Alva Griffiths receive a legacy of $80,000 and that Clement Jones receives a legacy of $50,000. Interest is to run on the legacies at the rate provided for in the Probate and Administration Act 1898 from three months from today's date. 82So far as costs are concerned, the plaintiffs' costs on a party/party basis and the defendant on an indemnity basis will be paid or retained out of the estate. 83The exhibits can be returned to the parties on their undertaking to keep them in their possession for the usual period pending an appeal.

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 April 2012