1 HIS HONOUR : Zdenko Josef Caska late of Longueville New South Wales Retired Medical Practitioner died on 24 September 1991 aged 72 years. He was survived by his widow Mrs Sarah Caska the defendant, and by the four adult sons of his first marriage. The Testator's first wife Mrs Anna Caska, whom he married in 1940, died on 7 August 1974. The Testator married the defendant on 9 October 1976.
2 The defendant obtained from this Court Probate dated 16 September 1992 of the Testator's Will dated 30 June 1989 and Codicil dated 23 June 1991. Claims by two of his sons for orders under the Family Provision Act 1982 were heard together. The plaintiffs are the Testator's eldest son Dr John Pius Caska who was born in Germany on 6 December 1944 and his youngest son Mr Michael Ferdinand Caska who was born in Australia on 20 September 1951.
3 The Testator's two other sons Dr Peter Caska and Dr Paul Caska are twins born in Germany on 11 February 1946; they did not bring claims to hearing, although Dr Peter Caska at one time was named as a plaintiff; he withdrew his claim.
4 In considering an application for provision under the Family Provision Act 1982 and applying s 7 and subs 9 (2) of that Act the Court follows a process described in the judgment of Mason CJ Deane J and McHugh J in Singer v Berghouse (1994) 181 CLR 201 at 208-209:-
"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question' See e.g. White v. Barron (1980), 144 CLR 431, at p. 456; Bondelmonte v.Blanckensee, [1989] W A R 305, at p. 307; Golosky (unreported; N S W Court of Appeal; 5 October 1993). That description means no more than that the court's power to make an order in favour of an applicant under s. 7 is conditioned upon the court being satisfied of the state of affairs predicated in s. 9(2)(a)."
Later at 209 their Honours also said:-
"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. was explained in Bosch v. Perpetual Trustee Co. Ltd. [1938] A C , at p. 476. 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.
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 (1951) 82 C L R 645, 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."
5 It is difficult entirely to separate the two stages; see their Honours' further observations at 210-211.
6 Claims by adult sons do not involve special principles, as they once were thought to do, and there is no requirement for an adult son to prove a special need or special claim; see Hunter v Hunter & Ors (1987) 8 NSWLR 573.
7 At the time of the hearing the agreed nett value of the assets in the estate was $750,495.00. In addition there had been two interim distributions totalling $33,069.32 to the Plaintiff Michael Ferdinand Caska. The estate assets consisted of two properties at 419 and 421 Ocean Beach Road Umina Beach used or formerly used for a residence and medical practice, a home unit at 17/44 Grosvenor Street Summer Hill, money on deposit at a bank, money held in a solicitor's trust account and a loan to the trustee of the Harovance Trust. Disregarding for limited purposes the interim distributions, the value of the estate assets should be taken to be $783,564.32.
8 The costs of the proceedings will be considerable, as the hearing took six days. There is no evidence establishing exactly what the costs are, but they are probably in the order of $50,000.00. These figures suggest that the amount available for distribution (after adding back the interim distributions) should be treated as $733,564.32. Michael Ferdinand Caska's one-sixth share should be taken as $122,260.00 and the undistributed balance $89,191.00. The figures are not precise, but indicate generally the provision still available for him.
9 The Testator's second marriage was long and happy and he regarded the defendant very highly. The defendant bore significant burdens of care during his last years of declining health. The defendant has significant resources of her own as well as the assets which pass to her under the Testator's Will. Her benefits under the Will are estimated to be worth $503,858.00 (Ex. AJ). She owns her home in Longueville: there is no reliable evidence of its value, variously asserted to be $800,000.00 and $1,100,000.00, but it is a substantial house and she is unlikely ever to sell it, unless her circumstances change very greatly. Her other assets are valued at $419,800.00 (Ex.AF). She also has, for practical purposes, power of disposition over the assets of the Harovance Trust, and can direct benefits to herself. Provision for the plaintiffs, even of several hundred thousand dollars, would leave her with significant assets, and with income, most notably income from the Brisbane Waters Private Hospital and consequent discretionary distributions by the Harovance Trust.
10 By his Will the Testator gave his widow a motor car, some items of jewellery and furniture, eight shares in Harovance Pty Limited and two thirds of the residue of his estate. He gave each of his four sons two shares in Harovance Pty Limited. He gave one sixth of the residue of his estate to Mr Michael Ferdinand Caska, and one sixth to trustees for the Testator's twelve grandchildren. The Codicil did not alter these dispositions.
11 The Testator made different provisions to operate in case the defendant did not survive him for one month, and in that case his executors were to be Dr John Pius Caska and Dr Peter Caska. Each son was to receive four shares in Harovance Pty Limited, Michael Ferdinand Caska was to receive sixteen ninetieths (a little over one sixth) of the residue, each other son was to receive a tenth of the residue and the remaining forty seven ninetieths of the residue was to be divided among named relatives, including the defendant's children, and the testator's grandchildren.
12 The gift of shares in Harovance Pty Limited, together with other shares which the defendant already had, gave her voting control over the trustee and, in effect, control over the trust and discretions as to the application of trust property; in reality, complete control over the assets. It is so unlikely as to be disregarded that any discretion will be exercised to confer a significant benefit on one of the plaintiffs. The Harovance Trust at the date of hearing held (Exhibit AF) cash and other investments, and a large investment in the Brisbane Waters Private Hospital, consisting of both shares and trust units, and the net value of trust assets was $516,107.00. The defendant's power to control the trust means that for practical purposes this should be regarded as at her disposition. It was contended that the dispositions in the Will of shares in Harovance Pty Ltd to sons of the Testator show that in his belief the sons were to have shares in the trust funds: there is no good basis for this, especially as the Will shows signs that it was prepared by a legal adviser.
13 Dr John Pius Caska's claim for provision for his advancement in life was expressed by him in terms of a claim to provide himself with a house or to assist him to obtain a house. He is a medical practitioner with a general practice; his practice earnings vary from year to year but the net earnings are in the order of $200,000.00 per year. He is divorced and is at present enmeshed in proceedings before the Family Court relating to the maintenance of his three daughters, who are still of school age. He has a number of actual or potential health problems, not unduly severe having regard to his age, and they do not disable him from earning; there is a potential that they may bring his working life to an end, but evidence does not establish when that is likely to be and I expect him to continue earning at a high rate for a number of years. In my finding he does not have a need for provision for his maintenance out of the Testator's estate.
14 Dr John Pius Caska's financial affairs generally are in a very poor state. He is the co-owner with a partner of a valuable rural property, but it has been conducted with severe losses for many years, and he is now facing the need to resolve his dealings with his bank, and with other creditors to which he is indebted for large amounts, solely or with a partner. He produced a table of his affairs which is very difficult to follow but which seems to show, if all his valuations are accepted (and they were not proved in any clear way) a deficiency in which his liabilities exceed his assets by about $280,000.00. That calculation assumes that he will bear the burden of a liability which ought to fall on his partner in the contingency that the partner is unable to pay. If that did not happen his liabilities would be approximately equal to his assets. This does not necessarily represent an accurate foresight of what is likely to happen; it is unlikely that there will be one general winding-up of his affairs in the near future, as he has a number of creditors, his relationships with them differ and he faces a lengthy and I would think difficult period of negotiation and resolution which may take several years. In October 1998 his bank served on him a Bankruptcy Notice for an overwhelming sum, over l7 million dollars, but it is unlikely that this heralds bankruptcy proceedings as the bank may take the view that its interests would be better served by realising its securities before precipitating bankruptcy.
15 If a large sum, even several hundred thousand dollars, came to hand for Dr John Pius Caska by way of provision from the Testator's estate it is very unlikely that it would be applied to provide him and his dependants with housing It is far more likely that it would be seized by a judgment creditor or consumed in the struggle to satisfy creditors or keep them at bay, while an eventual outcome in availability of housing would not emerge for some years, cannot be clearly foreseen and is on the whole unlikely. The likelihood is that any provision ordered to be made would go to the benefit of creditors, while any benefit ultimately to Dr John Pius Caska would be long postponed and its nature and the time of its enjoyment is not possible to predict. Payment of a large sum, even several hundred thousand dollars, to him out of the Testator's estate is not actually likely to operate as provision for his advancement in life.
16 It is difficult to understand how his affairs came to this pass. The rural investment has operated with large losses for many years and in hindsight it seems most unwise that he has stayed in it. It is not in my understanding a purpose which orders under this legislation should serve to rescue long-term bad investments. Overall, Dr John Pius Caska as a professional man long established in practice and actually earning professional earnings in the order of $200,000.00 a year, even with his manifold financial difficulties, appears to me to have reached the state of being established in life which takes him altogether out of consideration as a person for whom provision ought to be made by his father out of an estate of $780,000.00 left for the most part to the Testator's widow. This is not a case where the Testator had very great wealth, or where there was great wealth elsewhere in the family.
17 Dr John Pius Caska's position in life and earning capacity were attained with very large assistance from the Testator. The Testator and his first wife arrived in Australia as immigrants in 1949. It was necessary for the Testator to qualify as a medical practitioner again, and to work in subordinate positions in the medical world while doing so. He passed through these difficulties while having, eventually, a wife and four children as dependants. He established himself in medical practice at Umina from 1954 onwards. He provided the means for Dr John Pius Caska's schooling and education in medicine at the University of Sydney, including the provision of a flat for him and his student brothers in Sydney, with food, a motor car and other maintenance needs. He received Dr John Pius Caska into the practice soon after he graduated, and he gave Dr John Pius Caska the assistance of a home and establishment during his long bachelorhood. He also assisted him early in his rural ventures, and participated in them, although he came to take an unfavourable view of rural ventures and withdrew from them.
18 About 1988 a conflict arose among the members of the associateship, not it would seem in strictness a partnership, which conducted the medical practice, and the dispute and litigation related in some way which is not established fully or clearly to entitlements to possession of the premises in which the practice was conducted, which the Testator owned. In that litigation the Testator and Dr John Pius Caska were on opposite sides of the record; the proceedings were settled but left the Testator with strongly adverse feelings towards the other associates, including Dr John Pius Caska. The Testator's feelings may not have been entirely just and reasonable, as Dr John Pius Caska did not join with the other associates in the litigation; he took a separate position and was separately represented, and he was not a caveator of the caveat which the Testator was seeking to have removed. However that may be the Testator saw Dr John Pius Caska as one of those ranged against him, and not as an ally in support.
19 In the last three or four years of the Testator's life the relationship between him and Dr John Pius Caska was severely deteriorated and characterised by savage exchanges. In letters and other documents which he prepared in and around 1989 the Testator recorded very strong feelings adverse to Dr John Pius Caska; indeed savage antipathy, and recorded many instances of Dr John Pius Caska's conduct, in long past years as well as in recent years, of which he took severely adverse views. Dr John Pius Caska for his part also exhibited savage antipathy in a letter Exhibit 5 which he sent to the Testator soon after Dr John Pius Caska's wedding, nominally expressing filial duty but clearly showing deep resentment and hostility towards the Testator and more particularly towards the defendant. The position of the Testator was not entirely meritorious in the events which led to this antipathy, but it is quite clear that Dr John Pius Caska also was not in a meritorious position. He did a number of things which the Testator resented; in particular he expressed adverse feelings relating to the defendant which cannot fail to have deeply offended an elderly parent who treated his second marriage and his second wife with high esteem.
20 Many aspects of relationships within the family were combative and the Testator showed that he was well capable of combat. He arranged to have himself examined and reported on by a psychiatrist when he made his Will, with favourable results, so that his testamentary capacity cannot be doubted. This shows that he was well aware of potential conflict. Five witnesses who are general practitioners expressed in various forms views to the effect that in and about 1989 the Testator was showing signs of early dementia. I do not accept however that he was suffering from early dementia, having regard to the specialist opinion, and also to the vigour and clarity of expression and thought of documents written by the Testator about that time.
21 At earlier times when the Testator experienced a personal crisis after the death of his first wife requiring treatment for nervous disorder, Dr John Pius Caska assisted him loyally as was appropriate for a son.
22 Overall, having regard to the overwhelming balance of benefits and advantages conferred earlier in life by the Testator on Dr John Pius Caska, far in excess of any burdens borne, and having regard to the severely deteriorated relationship in the final years, the Testator's not have made any effectual provision for Dr John Pius Caska in his Will is well explained. He did make some provision in the contingency that the first defendant did not survive; that did not take effect. The fact that the contingent provision was made shows that their family relationship had not entirely come to an end.
23 In my judgment the claim of Dr John Pius Caska cannot receive a favourable answer at either stage of the two stage process described in Singer v Berghouse. He has not been left without adequate provision for his proper maintenance; his earning capacity attends fully to that need. He has not been left without adequate provision for his advancement in life; his advancement in life was fully attended to long ago, and it has been in his own hands for decades, and, addressing the second stage (and I find it difficult to separate them) my decision is that no provision ought to be made out the Testator's estate for his advancement in life; and further if I were to order provision, the order would probably fail to produce any effect in terms of actual provision.
24 Mr Michael Ferdinand Caska, who represented himself, is within a class of adult sons who have long been recognised as candidates for provision. It is no longer necessary to fall within that class to obtain consideration; he clearly does. The Testator provided for Mr Michael Ferdinand Caska's schooling in Gosford, and extended his schooling for a year to enable him to enhance his prospects of University entrance; and provided for him to live in a University College for three years while he studied medicine at the University of New South Wales. Mr Michael Ferdinand Caska passed the first year after repeating his studies, but did not pass the second year and withdrew from the University. He then married and was for a time thoroughly estranged from his father. He lived in very poor circumstances with his wife in Brisbane, took up studies in medicine there without success, and received some assistance from his father. This assistance was jealously watched and withdrawn when his father thought appropriate. Mr Michael Ferdinand Caska at one time lived under an assumed name, and says that the Testator engaged private investigators to find out something - it is not clear what - about him. He appears to have last attempted medical studies in 1975.
25 After that Michael Ferdinand Caska worked for a time in insurance and then in a clerical position in the Department of Taxation. He qualified for admission to the Bar by Barristers' Admission Board study and was admitted in 1982; he says that his father congratulated him. However he did not attempt to practice law. For many years he supported himself by driving taxis. In this way he became established in life and self-supporting, according to what in reality are his abilities. He was divorced; he had relationships with other women which have ended. In 1995 he lost his Taxi Authority on the basis of a complaint by passengers to the effect that he had behaved indecently and dangerously while driving a cab; he disputes this claim, and has challenged it unsuccessfully in Court; and some appeal proceedings are still pending. He is unemployed and has been for about four years, supported by social benefits and by some assistance from his brothers. He has put much endeavour into seeking employment, with official guidance which is a condition of his social benefits, but this has not been effectual. He lives in very poor circumstances in cheap accommodation at the Bay View Hotel at Woy Woy; at a minimal standard of comfort and convenience.
26 Michael Ferdinand Caska can barely support himself on his social benefits. He has a number of obligations including particularly fines and costs totalling about $14,000.00 imposed on convictions (and appeals) for driving a taxi without a Taxi Authority. Although he disputes the justice of the decision to take away his Taxi Authority and of the penalties imposed on him I am of the view that for present purposes I should not attempt to review those decisions, and I accept them as correct. Correct or not they are facts; he does not have a Taxi Authority and he has large penalties to face. He has hopes of employment. He genuinely holds hopes of entering legal practice, but the long interval since he was admitted to the Bar, his age and the lack of any relevant experience, and the manner in which he conducted these proceedings in person, including his affidavits (and he filed about thirty) lead me to find that it is improbable that he could ever earn his living at the Bar or otherwise in legal practice.
27 Although Michael Ferdinand Caska is a man of education, and has absorbed much of his education well, and in some ways can express himself well, he is for some reason unable to engage properly with the world of practicalities. He will be able to become self-supporting when he finds employment of a general nature for which his experience equips him such as driving courier vehicles or other vehicles, or if he ever recovers his Taxi Authority. The lack of success of his four-year search for employment is remarkable, and shows his difficulty in engaging with reality. When he makes an address to the need to provide for himself by working, he will probably recover his economic independence at the kind of level he long achieved by driving taxis. In the past he has been something of an athlete although this is not longer so. He put forward as needs a number of matters which I regard as fanciful, such as a touring cycle and equipment to join a bicycle club, martial arts training and an overseas holiday; these claims show that his thinking is at a distance from reality. He has musical ability which is clearly real and he put forward claims for musical instruments which I do not regard as realistic. He also put forward a claim to be provided with housing, which he said would cost in the order of $200,000.00 on the Central Coast, and a claim to be provided with a taxi plate which he said would cost in the order of $280,000.00, or a vehicle. These claims are out of scale with anything which should be provided by a parent, or which should be ordered by the Court as a provision out of the estate.
28 He referred here and there throughout his diffuse evidence to many debts, obligations and proposed expenditures. Some of these, fines costs and witnesses' expenses of unsuccessful proceedings, are not sums which it could be just to include in any provision to be ordered for him at the expense of the defendant or of other beneficiaries. For the most part the proposed expenditures relate to projects which are not practicable or not necessary. A practical training course at the College of Law is not an expense which it would be prudent for him to incur. The debts for things such as dental care, hotel accommodation and furniture storage, clothing and shoes are well within the scale of things he can cope with out of his own resources including provision under the Will.
29 In my judgment the Testator went as far it could be said that he ought as a father to have gone in endeavouring to establish Mr Michael Ferdinand Caska in life. His medical studies simply did not succeed. Michael Ferdinand Caska complained that his father did not offer him any assistance in establishing himself at the Bar; however he did not ask or press his father to do so, and it is very unlikely that he would have made a success of the Bar or that any resources used to that end would be well spent. He was able to continue to function as a taxi driver and to maintain himself for a number of years, until he lost that opportunity from circumstances which I must attribute to his own misconduct.
30 The relationship between the Testator and Michael Ferdinand Caska became severely deteriorated. There was a particularly clear and gross exemplification in the transcribed passage of the tape recording Exhibit 14 which Mr Michael Ferdinand Caska sent to his father as a communication in 1986. In the passage transcribed Michael Ferdinand Caska beset the Testator with a number of speculations and observations, very difficult to follow but plainly wounding, about the Testator's early life and conduct during and after The Second World War. The observations in the transcript reveal an astonishing lack of sensitivity to the feelings of a person who experienced the hard destiny of living in Germany during The Second World War, with a German wife but not himself a German. Michael Ferdinand Caska beset his father with wounding and belittling speculations about his father's behaviour, in no way clear or conclusive but obviously bound to be distasteful. The Testator responded with a severely expressed and characteristically forceful refutation, and there seems to have been very little in the relationship after that.
31 In the statement (Exhibit 3) made and signed by the Testator on 15 March 1989 explaining the terms of an earlier Will (not his last Will, but with somewhat similar provisions) the Testator recognised that Mr Michael Ferdinand Caska needed support and financial help. His appraisal was:-
"He did not succeed in establishing himself in society, due largely to his unwillingness to start at the bottom and work his way up the successful ladder of life. Michael has for some time developed a very antagonistic attitude to me making no bones about the fact that he expects me to continue to retrieve him from all his financial follies, which I do not propose to do. He is also encouraged in these expectations by his brother John, who put constant and stressful pressure on me during 1988 to retrieve Michael, for sums up to $80,000.00. I could not do this then, and will not do so, it is throwing good money after bad.
During discussions with my sons John, Peter and Paul, re Michael's mental stability, it was decided that due to my own ill health at the time, John should arrange for Michael to see psychiatrist, but Michael would not co-operate, and despite my constant appeal to him to seek help he refused, and in fact Michael has not been in contact with me for about twelve months - he is still driving taxis as far as I know."
32 This with the provisions of his Will, shows that the Testator did not take as adverse a view of Michael Ferdinand Caska as might have been taken in view of his behaviour, and as might have been understood from the Testator's written response to the message on the tape in 1986. The provisions of the Will reflect the understanding of Michael Ferdinand Caska's needs expressed in Exhibit 3; assistance for a son who did not succeed in establishing himself in society. The provision under the Will is sufficient to enable Michael Ferdinand Caska to resolve pressing claims on him; indeed he has used interim payments to date for that purpose. He has also spent some of the interim payments on things which are altogether unsuitable to his circumstances, and he has shown extravagance. He is however in charge of himself; he is not shown by any evidence to be suffering from any mental illness or any incapacity for conducting his affairs which marks him out from the community at large. The provision made in the Will is sufficient to enable him to supplement from time to time his support of himself by his own earnings, and from social benefits when he does not have earnings, by giving him a fund to draw upon when crises require.
33 The circumstances in which he is no longer able to earn his living as a taxi driver do not qualify him for provision out of property owned by others: it is not a provision which a parent ought to make to rescue him from his loss of his earning capacity as a taxi driver, in view of the circumstances in which he lost it, or to pay his fines or costs orders. He will however have funds available out of the provision made under the Will on which to draw from time to time to ensure that he has accommodation suitable to his modest circumstances, and to tide him over crises. In my judgment the Testator by the provisions of his Will fully met everything that was required of him by way of provision for maintenance for Michael Ferdinand Caska, having regard to the value of the estate.