Crouch v Zelichowski

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4652/00 WENDY ANNE CROUCH -V- CORAL ANN ZELICHOWSKI JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 20 November 2000 the Plaintiff Wendy Anne Crouch claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Gregory William Leech (to whom I shall refer as "the Deceased"). 3 The Plaintiff asserts that she was the de facto spouse of the Deceased at the time of his death. That status is acknowledged by the Defendants. 4 The Deceased died on 5 August 2000. He left a will dated 28 January 1999, probate whereof was on 7 November 2000 granted to Coral Ann Zelichowski and Paul Heinz Zelichowski, the executors named in such will (who are the Defendants to the present proceedings). The inventory of property discloses that the assets of the estate consisted of a one-half share in a house property situate at and known as 37 Thorne Street, Wagga Wagga (the estimated value of that one half share being $100,000), moneys held in the St George Bank ($8,813), the benefits of various life policies (having a total value of $123,202), the benefit of a superannuation plan (having a value of $233,938), proceeds of sale of business ($55,500), proceeds of sale of office furniture ($1,465), cash on hand ($1,500). 5 The house property at 37 Thorne Street, Wagga Wagga, was the residence of the Deceased and the Plaintiff throughout their relationship. 6 By his will the Deceased gave to the Plaintiff a right of occupation in his interest in the foregoing residence "during her lifetime or until her remarriage or her entering into a de facto relationship for longer than six months (whichever occurs first) on condition she pays all rates and taxes and keeps the residence insured to the satisfaction of my Trustees". The will went on to provide that thereafter such interest be sold and the sale proceeds form part of the residuary estate. The will then gave the Deceased's household furniture and items of ornament (subject to certain exceptions) to the Plaintiff, and those items so excepted to David William Leech, son of the Deceased. 7 The residue of the estate, after payment of debts, funeral expenses, and other liabilities of the estate, was given on trust to be divided into three equal parts. One of those parts was to be held on trust for the benefit of the Deceased's daughter, Amanda Elizabeth Leech, for life, and on her death to be held on trust for the Deceased's children Deanna Maree Leech and David William Leech. One such part was to be held on a discretionary trust for Deanna Maree Leech for her life (and on her death for her children living at the time of her death who attain the age of eighteen years, but in default of such children on trust for Amanda and David). The remaining one such part was to be held on trust for David William Leech, one half thereof to be paid to him when he attained the age of twenty-five years and the balance to be paid when he attained the age of thirty years. 8 The Deceased was born on 28 September 1948 (and was aged fifty-one at the time of his death on 5 August 2000). The Deceased married only once, to Denice Merle Leech, on 13 March 1970. Of that marriage were born three children, being Amanda (who was born on 11 August 1975 and is presently aged 27), Deanna (who was born on 25 July 1979, and is presently aged 23) and David (who was born on 17 November 1980, and is presently aged 21). All three children were alive at the death of the Deceased and are still living. 9 The Plaintiff was born on 30 July 1952 (and is presently aged fifty). She married in September 1971. Of her marriage there were born to the Plaintiff two daughters (Michelle, born on 1 February 1972, and Joanne, born on 15 December 1972). 10 The Plaintiff and her husband separated in 1985, the Plaintiff retaining custody of their children. She subsequently received an amount of $33,000 by way of a Family Law settlement. After the separation of the Plaintiff from her husband and the property settlement in respect to their former matrimonial home, the Plaintiff and her children resided in rented accommodation at Buchhorn Street, Wagga Wagga. During the ensuing years the Plaintiff received little, if any, further financial support for either herself or their children from her former husband. 11 In 1989 the Plaintiff purchased a home unit situate at and known as 3/22 Dove Street, Wagga Wagga, for $70,000. In order to effect that purchase the Plaintiff borrowed about $40,000. 12 The Plaintiff and the Deceased met in June 1987. In January of the following year the Deceased separated from his wife and they were divorced on 12 October 1991. The Deceased's wife Denice remained with their children in their former matrimonial home at 4 Oleander Crescent, Wagga Wagga.The Plaintiff and the Deceased commenced cohabitation at the Thorne Street residence in June 1991. They remained living together until the death of the Deceased nine years later. Throughout that period the Deceased had regular and frequent contact with each of his three children, with whom he maintained a close and loving relationship. He also maintained regular contact with his wife, with whom he appears to have retained a cordial relationship. 13 The Deceased had originally purchased the Thorne Street residence as an investment property during the course of his marriage (that purchase being subject to a mortgage of which, as I understand it, by 1991 an amount of $46,000 was outstanding). Subsequently an additional mortgage of $70,000 (making a total mortgage of $116,000) was taken out over the Thorne Street property to enable renovations to be effected thereto. In about 1991 the Plaintiff sold the Dove Street property for about $100,000. From that sale (after repayment of the mortgage and meeting costs in respect to the sale) the Plaintiff received a net amount of about $50,000-$55,000. From those net proceeds of sale the Plaintiff paid off a debt outstanding on the motor vehicle which she then owned. Of the amount then remaining the Plaintiff then, at the request of the Deceased, advanced him the sum of $25,000, which he said that he needed to pay some debts. (That advance appears to be acknowledged by the Deceased in a financial plan prepared by the Deceased for himself and the Plaintiff, 25 May 1995, at item 19 on page 7 thereof, that financial plan being annexure A to the affidavit of the Plaintiff sworn 12 July 2001.) 14 On 23 March 1995 the Deceased transferred the Thorne Street residence to himself and the Plaintiff as joint tenants. However, almost four years later, on 27 January 1999, consequent upon an agreement between the Plaintiff and the Deceased in that regard, the joint tenancy of the Thorne Street residence was severed, and they transferred that property to themselves as tenants in common in equal shares. Thus it was that at the time of his death the Deceased held only a one half interest as tenant in common in the Thorne Street residence, the other half interest therein being held by the Plaintiff. 15 The Deceased was an insurance agent by occupation. 16 On 13 November 1998 the Deceased was diagnosed as suffering from leukaemia. From then until his death almost two years later the Plaintiff was the principal carer of the Deceased. 17 Throughout the period of her relationship with the Deceased the Plaintiff was in full time employment, holding secretarial positions for various employers. During the period of the Deceased's terminal illness the Plaintiff on several occasions took leave from her employment in order to accompany the Deceased to Melbourne for medical treatment. 18 Following the sale of the Dove Street premises in 1991 the Plaintiff commenced to reside permanently with the Deceased in the Thorne Street premises. There is no dispute between the parties that the de facto relationship between the Plaintiff and the Deceased existed from no later than that time. 19 From the time when she moved into residence with the Deceased at Thorne Street the Plaintiff (who it will be appreciated was in employment throughout the period of the relationship) contributed on a weekly basis towards the repayment of the mortgage loan on the Thorne Street property. In addition, she also contributed to the payment of outgoings on that property (such as rates, gas, electricity, and other household expenses). 20 In early 1992, at the suggestion of the Deceased, the Plaintiff sold her motor vehicle, realising about $10,000. Those moneys were used towards renovations to the kitchen at the Thorne Street residence (such renovations costing a total amount of about $15,000). 21 Also in the mid 1990s, at the suggestion of the Deceased, the Plaintiff gave financial assistance towards the obtaining of an increase in the mortgage over the Thorne Street property, by way of two separate loans being taken out in respect to that property. The purpose of those loans (which resulted in the mortgage over the property being increased to $135,000) was to enable further renovations to be effected to the Thorne Street property. 22 The Plaintiff had, at the suggestion of the Defendant in August 1993, ceased payment of contributions to her retirement security plan, so that she would be able to assist the Deceased in making additional payments to meet the then outstanding mortgage payments. Although the evidence is far from clear in this regard, it certainly emerges that the Plaintiff made significant contributions towards repayment of the foregoing loans totalling $135,000. 23 A great deal of evidence, essentially by way of affidavit, was presented concerning asserted demands made by the Plaintiff of the Defendants after the death of the Deceased. That evidence is quite irrelevant to the matters which the Court must decided in the present proceedings. 24 Similarly, much irrelevant evidence was presented, essentially by way of affidavit, concerning the circumstances relating to the arrangements made for the collection of chattels which the Deceased by his will left to his son David. That evidence also is totally irrelevant. There was also a considerable quantity of affidavit evidence which appeared to be directed to the nature of the relationship which obtained between the Plaintiff and the Deceased's three children. Counsel for the Defendant at the outset of the hearing expressly stated that no assertion was being made by the Defendants that the Plaintiff acted in any way other than as a proper wife or that she did not perform domestic duties for the Deceased and his children. Counsel for the Defendants properly stated that those matters did not constitute a major issue in the case. 25 Evidence was given about discussions between the Plaintiff and the Deceased concerning their respective proposed testamentary dispositions. The Plaintiff appears to have been agreeable to what she understood to be the terms of the Deceased's will (essentially in favour of his children), Nevertheless, unless it were to be suggested that there was some form of a binding agreement between the Plaintiff and the Deceased relating to their proposed testamentary arrangements, I do not see how the acquiescence of the Plaintiff in what she understood would be the terms of the Deceased's will (in the event, somewhat different from the terms of his final will, of whose existence she was unaware until after his death), can have any effect upon, let alone be determinative of, the outcome of the present proceedings. 26 The assets in the estate presently comprise:

(a) One half share in the Thorne Street property, having a present value of $110,000 (the parties having agreed that the present value of the entire property is $220,000).

(b) Advisor Superannuation Plan, having a present value of $235,000.

(c) Moneys held on trust by Nicholas O'Donohue & Co, solicitors (representing, inter alia, the proceeds of a life insurance policy held by the Deceased): $133,000. 27 It should here be recorded that at the commencement of the hearing it was noted that it was expressly agreed between the parties that the foregoing superannuation plan forms an asset in the estate of the Deceased. There appeared to be some dispute in this regard at an earlier stage in the proceedings. 28 In consequence, therefore, the value of the net estate of the Deceased is $478,000. 29 However, various administration expenses and professional fees and tax upon earnings of the estate must be paid out of that foregoing sum. Those amounts (other than costs and associated expenses relating to the present proceedings) total $8,350. In addition, the costs of the present proceedings must be taken into account in calculating the amount available for distribution in the estate of the Deceased. It has been estimated by their respective solicitors that the costs of the Plaintiff for a three day hearing will be in the range of $39,000-$44,000; whilst the costs of the Defendants will total approximately $71,700. That is, the totality of the costs of both parties to the proceedings will be in the range of about $106,000 to $111,000. 30 I am surprised by the amount of those costs, especially those of the Defendants. For a hearing which extended over, but did not occupy the entirety of, three days, in which each party was represented by a solicitor and Junior Counsel, in a matter which was by no means unusual or exceptional in its factual circumstances, and raised no complicated questions of law, I consider that the foregoing totality of costs, comprising almost one quarter of a relatively modest estate is excessive. In particular, I consider the costs of the Defendants to be excessive. 31 Nevertheless, for the purposes of calculating the amount available for distribution in the estate it is appropriate that I should proceed upon the basis that the Plaintiff, if successful, will be awarded an order for her costs out of the estate and that the Defendants, in any event, will be entitled to receive their costs out of the estate (although I doubt whether, upon assessment, they will be entitled to receive almost $72,000 by way of such costs). 32 Upon the foregoing calculations, however, there would be available for distribution an amount of at least about $360,000, or perhaps a little more (of which amount $110,000 is represented by the one half interest in the Thorne Street property). Therefore there would remain available for distribution, apart from the interest of the estate in the Thorne Street property, an amount of at least about $250,000. Under the terms of the will one third of that amount (being a little over $83,000) would be held on trust (according to the terms of the various trusts set forth in the will) for each of the three children of the Deceased. 33 At the present time the Plaintiff continues to reside in the Thorne Street property. Until September 2001 she was employed by Kendell Airlines. She was stood down from that employment on 29 September 2001 (in consequence of that employer being placed under administration). The Plaintiff received a redundancy package of about $10,000 gross, consisting of pay in lieu of notice, long service and annual leave entitlements. 34 In October 2001 the Plaintiff obtained employment with WB Financial Management as a personal assistant/secretary. That employment is permanent/part-time. The Plaintiff works about thirty hours a week and receives a net wage of almost $690 a fortnight. 35 From the insurance moneys of $136,000 which she received in respect to a policy over the life of the Deceased the major part of those funds are currently held by the Plaintiff in an account with Macquarie Bank. Those funds in January 2002 totalled a little over $87,000. In addition, the Plaintiff has about $2000 in a Westpac Savings Account. The Plaintiff also owns a motor vehicle with an estimated value of about $14,000. 36 In her affidavit of 5 April 2002 the Plaintiff set forth how she had utilised the balance of the insurance moneys.

37 Since the death of the Deceased the Plaintiff has paid all outgoings and expenses in respect to the Thorne Street property, including the totality of mortgage payments (amounting to about $11,000). 38 There was evidence concerning a life insurance policy taken out by the Deceased on the life of the Plaintiff, at about the same time as the policy on the life of the Deceased was taken out by the Plaintiff. Evidence was given concerning the apparent lapsing, and subsequent reinstatement, of that policy, and attempts by the Plaintiff to have the benefit of that policy transferred from the estate of the Deceased to herself. Despite that evidence it seems to me, that for practical purposes, and in the light of the terms of that policy and the circumstances as they exist at the present time, that policy should be disregarded. 39 The Plaintiff as the de facto spouse of the Deceased at the time of his death is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. 40 The other eligible persons in relation to the Deceased are his three children, Amanda, Deanna and David. Each of those children is an eligible person within paragraph (b) of the foregoing definition. The only other eligible person is the Deceased's former wife, Denice Merle Leech, who is an eligible person within paragraph (c) of that definition. Mrs Denice Leech has filed a number of affidavits in the present proceedings, on behalf of the Defendants. She makes no claim herself, but supports the testamentary dispositions of the Deceased, and opposes the claim of the Plaintiff. 41 As well as being eligible persons, the three children of the Deceased are the chosen objects of their father's testamentary beneficence. 42 Amanda, who is presently aged twenty-seven, is physically and intellectually disabled. She suffers from cerebral palsy, cellulitis and eczema. She has also been diagnosed as suffering from obsessive compulsive disorder, and she talks almost incessantly. Amanda, who resides at home with her mother in Wagga Wagga, is employed as an ironer at Kurrajong Waratah, a sheltered workshop in that city. For that work Amanda receives $145 a fortnight. In addition, she receives a disability pension of $370 a fortnight. Amanda's mother conveys her to and from the sheltered workshop each day. Amanda cannot be left alone in the house for longer than half an hour at a time. Mrs Denice Leech has expressed concern as to Amanda's future when she is no longer able to care for Amanda. Mrs Leech has in fact established a trust fund with the laudable aim of providing for Amanda's future. In March 2001 that fund held an amount of $56,000. Amanda herself has no assets or liabilities, and, apart from her earnings and her pension, is dependant upon her mother. 43 Medical evidence concerning Amanda was placed before the Court by Dr Patrick Renshaw, her treating physician. 44 Deanna, who is presently aged twenty-three, became addicted to heroin when she was aged nineteen. However, for the past three and a half years, since February 1999, she has been on a methadone programme. In addition, Deanna suffers from Crohn's Disease, (which was diagnosed when she was aged seventeen). She also suffers from Hepatitis C (which was diagnosed in 2000 when she went on the methadone programme). Deanna has also suffered problems with her hearing, which have necessitated surgical procedures on her ears on two occasions. She has recently been told by her doctor that she requires further surgery to her ears. Medical evidence concerning Deanna and the prognosis in respect to her various physical problems is set forth in the evidence of Dr Marcus Wilcox, a general medical practitioner, who examined her on 17 January 2002 for the purposes of the present proceedings. 45 Deanna was employed until February 2002 firstly, as a sales assistant and latterly as a trainee manager in a store in Wagga Wagga (her employment history being essentially in retail), in which position she was receiving about $350-$400 net a week. That employment came to an end when the employer company was wound up. Shortly before the hearing Deanna had been offered a position as assistant manageress in another retail outlet in Wagga Wagga, which she had decided not to accept. However, a few days before the hearing Deanna had accepted a position as manager at the Supré store in Wagga Wagga. At the time of the hearing Deanna had not received her first wages in this new position, and was not aware of how much she would be paid. 46 Deanna, who originally left home at the age of seventeen, and subsequently resided in flats with various friends, is now residing with her mother, her sister Amanda and her brother David. She receives no financial assistance from her mother. Although the evidence is silent in this regard, I infer that Deanna has no significant assets or liabilities. 47 David, who is presently aged twenty-one, left school in 1998 after completing the HSC. He had until early 1997 resided with his mother and his sisters after the separation of his parents. However, in March 1997 he went to live with his father and the Plaintiff in the Thorne Street residence in order to be closer to school. He continued to reside there with the Plaintiff for about six weeks after the death of his father, making a contribution to certain outgoings during that period. 48 After leaving the Thorne Street residence David lived with a friend for about four months, before returning to reside with his mother and his sisters, in March 2001, at the Oleander Crescent residence, where he continues to reside. 49 Upon leaving school David worked as an apprentice air-conditioning mechanic for three months in 1999. He then commenced work as a barman at Wagga Leagues Club (in a position which his father obtained for him). Since September 2001 he has been a duty manager at the Wagga Leagues Club. He receives $550 net for working a 45 hour week. His duties include supervision of staff in the absence of the Secretary/Manager. 50 David's assets consist of a motor vehicle (1997 Ford Fairmont Ghia, which he purchased from the estate of his father) to which he ascribes a value of $20,800; refrigerator and clothes drier ($1,200); furniture and effects inherited from his grandmother ($500). David's current liabilities are a loan ($12,000), which he raised in order to purchase the motor car from the estate; personal debts to his aunt, Coral Zelichowski ($821, being for car registration of $600 and a cash advance of $200). 51 David is in good health. He pays board of $50 a week to his mother, makes repayments on the car loan of $75 a week. He has other regular commitments and general expenses which total $260 a week. 52 The evidence discloses that the Deceased had a close and loving relationship with each of the three children, and that it was his desire by the provisions of his will to do what he thought was best for each of those children. 53 It is in the context of the foregoing financial and material circumstances of the Plaintiff and of the three children of the Deceased (who each has a competing claim to that of the Plaintiff upon the bounty of the Deceased, and who is each a chosen object of the testamentary beneficence of the Deceased) that the Court must proceed to a consideration of the claim of the Plaintiff. 54 I have had the benefit of receiving written submissions from Counsel for the Defendant, which will be retained in the Court file. 55 In performing the two stage exercise identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 per Mason CJ, Deane and McHugh JJ, it is firstly necessary to establish whether the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life.

56 In the instant case the Plaintiff finds herself in the anomalous position that she has an absolute entitlement to a one half interest as a tenant in common in the Thorne Street residence, but that, in respect to the other one half interest in that property she is entitled only to a right of residence for her life (or until remarriage or until a fresh de facto relationship), that right of residence being subject to her paying the entirety of the outgoings, including mortgage repayments, in respect thereof. It will be appreciated that the Plaintiff finds herself in a totally unsatisfactory situation concerning her home (in which she has resided for the past eleven years). She has no flexibility and no security in where she lives. She is tied to the Thorne Street property and cannot dispose of it. Unless by agreement (which, having regard to the evidence of the relationship between the parties, would appear to be unlikely) the only way in which the Plaintiff can acquire a fresh residence (should she desire to do so or should her circumstances alter so that it be necessary or appropriate for her to do so) would be by way of invoking the provisions of Division 6 of Part 4 of the Conveyancing Act 1919 (with the concomitant costs both of the litigation and of the appointment and remuneration of statutory trustees). 57 I am in entire agreement with the submission on behalf of the Plaintiff that the relationship between herself and the mother of the beneficiaries is such as to make it undesirable that the right of residence for life should continue. It will be better for all the parties if any continuing relationship between them, in consequence of the Thorne Street property, is brought to an end. 58 It is also relevant to the claim of the Plaintiff to receive the entirety of the Thorne Street property absolutely that, not only was that property the matrimonial home of the Plaintiff and the Deceased throughout the whole of their relationship, but the Plaintiff made significant financial contributions (both direct and indirect) towards improvements to that property, and in respect to the household outgoings during the course of her relationship with the Deceased. 59 It is abundantly obvious that, despite the fact that the Deceased was apparently motivated by the best of intentions for his children and for the Deceased, by making testamentary provision in respect to the Thorne Street property in the manner in which he did, the result has been that the Plaintiff has been left without adequate provision for her proper maintenance. She is entitled, in my conclusion, to an order that she receive the other one half interest in the Thorne Street property absolutely, in lieu of the right of residence therein given to her by the will. 60 In considering what further provision, if any, should be made for the Plaintiff out of the estate of the Deceased, it will be appreciated that the situation in relation to Amanda, the eldest child of the Deceased, is of particular significance. Amanda will never be self-supporting. She will always be dependant upon other persons. So long as her mother is able to do so, Amanda appears to be well looked after by a devoted and loving family. However, Mrs Denice Leech is conscious that a day may come when she will no longer be able to care for Amanda, and she is desirous that there should be some provision which will enable Amanda to maintain a lifestyle at no lesser standard than that which she has at the present time. The Deceased himself obviously wished to do the best he could for Amanda, within the constraints of his financial capabilities. 61 The situation of Amanda is such that (except to the extent essential to give to the Plaintiff the Thorne Street property absolutely) the Court would be most reluctant to make an order which would have the effect of reducing or eroding the benefit given to Amanda by the will of the Deceased. 62 Deanna has particular problems of health, as well as the problems resulting from her former heroin addiction. It seems to me that she should retain a fund upon which she can fall back if a deterioration in her health or other circumstances prevent her from working for a period. I am reluctant to make any order which would detrimentally affect the benefit which Deanna receives under the will of her father. 63 David is a young man who has his way to make in life. He is entitled to receive a start in life from the estate of his father. Clearly his father intended that that should be done (albeit not for several years yet). David, although presently secure in his employment, has little left from his net wages after he has paid his board and other regular weekly commitments. His financial circumstances make it unlikely that he will ever be able o save any significant amount (for example, to acquire a home of his own). The benefits given to him by his father's will represent the only realistic possibility of him being able to so. 64 It will be appreciated that there is presently a mortgage of about $78,000 outstanding on the Thorne Street property. The Plaintiff receives a net wage of $345 a week from her present employment. It was submitted on behalf of the Plaintiff that she should receive the totality of the Thorne Street property unencumbered. That would mean that she should receive, in addition to the interest of the Deceased as to one half of that property, also a legacy of about $78,000. The assets of the estate are not sufficient to accommodate the competing claims of the three children of the Deceased and still to give to the Plaintiff a legacy in that amount. As it is, the provision to the Plaintiff of the interest of the Deceased in the Thorne Street property will deprive each of the three children of the Deceased of one sixth of the value of that property (that is, upon the basis of the present valuation of about $110,000), about $35,000. 65 In regard to the foregoing submission that the Plaintiff should receive a legacy in an amount sufficient to enable the mortgage on the Thorne Street property to be discharged, it should be appreciated that the Plaintiff's present assets are such as would enable her to effect such a discharge of the mortgage out of the funds which she presently has invested with the Macquarie Bank. Although by using those funds for that purpose, the Plaintiff would be depriving herself of income, nevertheless, by the same token, she would also be extinguishing a continuing liability to make mortgage payments. 66 Had the estate been a larger one, I would have been disposed to award to the Plaintiff a relatively small sum to meet possible future contingencies. Having regard to the size of the estate, however, and to the nature of the competing claims of the three children of the Deceased upon the testamentary bounty of their father, I do not consider the Plaintiff has established an entitlement to receive from the estate any benefit additional to that provided for her by the will (in respect to household contents and chattels) and in respect to the absolute interest in the one half share in the Thorne Street property to which I have already referred. Otherwise, the interests of the three children of the Deceased will remain unaffected. 67 I make the following orders:

(1). I order that, in lieu of the provisions of clause 3 of the will of the late Gregory William Leech ("the Deceased"), the Plaintiff receive absolutely the interest of the Deceased in the property known as 37 Thorne Street, Wagga Wagga.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned. **********

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