Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee

Supreme Court of NSW|2001-12-12|Before: Young J

CITATION : Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee [2001] NSWSC 394 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2525/1999; 2593/1999; 2594/1999 HEARING DATE(S) : 3, 7, 8, 12 December 2001 JUDGMENT DATE : 17 May 2001

Jill Anne Day v Perpetual Trustee Co Ltd PARTIES : Pamela Magure v Perpetual Trustee Co Ltd Judith Ann McLennan v Perpetual Trustee Co Ltd JUDGMENT OF : Master Macready at 1

J.E. Thomson & N. Newton for Jill Day COUNSEL : M.J. Stevens & V. Bedrossin for Judith McLennan and Pamela Maguire W. Haffenden for Perpetual Trustee Co Ltd P.A. Keith for Jill Day SOLICITORS : Makinson & d'Apice for McLennan and Maguire Culter Hughes & Harris for Perptetual Trustee Co Ltd CATCHWORDS : Family Provision. Applications by three adult daughters. Two of them had not seen the testator since 1944. Question of whether in the circumstances the contact was sufficient to justify an order in their favour. - Consideration of whether the daughters had rejected the relationship with their mother. - Orders made in favour of the daughters. Benney v Jones (1991) 23 NSWLR 559 Hughes v Hughes Court of Appeal unreported 6 June 1989 CASES CITED : Gorton v Parks (1989) 17 NSWLR Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9 Walker v Walker (unreported 17 May 1996) Young J Singer v Berghouse (1994) 184 CLR 201 DECISION : Paragraph 65

1 MASTER: This is the hearing of three applications under the Family Provision Act by daughters of the late Valmai Grafton Marshall who died on 5 January 1998. Orders have been made that the proceedings be heard together and evidence in one be evidence in the others. 2 The plaintiffs, Pamela Maguire and Judith McLennan, are children of the first marriage of the deceased. The plaintiff, Jill Day, is a child of the second marriage of the deceased. The deceased had a number of grandchildren. Her daughter Pamela Maguire had three children, Suzanne Lockyer, Judith Kenny and Peter Maguire. Her daughter, Judith McLennan, also had three children, Joanne McLennan, Kristina O'Connor and Scott McLennan. Her daughter, Jill Day, had one child, Lucie Day. 3 There was no contact between the children of the first marriage and the deceased after the late 1950s and there was only minimal contact with the grandchildren, by her daughters of the first marriage, in that period. This led to problems with the drafting of the will because the solicitor, charged with drafting of the will, did so on the basis of instructions by the deceased that she only had one daughter and one grandchild. The will of the deceased was made on 4 May 1990. That relevantly provided for the appointment of the defendant as sole executor and trustee. In clause three there was a bequest of household items "to my only child, my daughter Jill Anne Day" subject to a proviso that was fulfilled. Clause 4 provided for the residue to be held upon the following trust:- A. To pay the income arising from three-fifths of my residuary estate to my said daughter Jill Anne Day during her lifetime and to hold the capital comprising the said three-fifths of my residuary estate, subject to the said life interest of my said daughter upon trust for such of my grandchildren as shall survive me and attain the age of twenty one (21) years if more than one in equal shares absolutely. B. To hold two-fifths of my residuary estate upon trust for such of my grandchildren as shall survive me and attain the age of twenty one (21) years, if more than one, in equal shares absolutely. C. If no grandchild of grandchildren of mine shall survive me and attain the age of twenty one (21) years my Trustee shall hold the whole of my residuary estate upon trust for my said daughter Jill Anne Day absolutely provided she shall have survived me by more than thirty (30) days and be living at the date of death of my last surviving grandchild." 4 There was obviously an uncertainty having regard to the reference to a sole daughter and the fact that such daughter only had one child. As a result proceedings to construe the will were brought by Lucie Day by her tutor, Jill Day. Those proceedings were determined by Young J on 22 February 1999. He declared that upon the true construction of the last will and testament of Valmai Marshall, and in the circumstances that have happened, the references to "grandchildren" in clause 4 meant Lucie Jane Day, Peter Anthony Maguire, Suzanne Pamela Lockyer, Judy Anne Kenny, Joanne McLennan, Kristina O'Connor and Scott Andrew McLennan. 5 It can thus be seen that the estate is held as to three fifths for the life of Jill Anne Day with a gift in remainder to the seven grandchildren and as two fifths absolutely for the seven grandchildren. 6 The estate has been reduced to cash and at the time of the hearing amounted to $434,152.37. Substantially that amount represents the proceeds of sale of the deceased's home at Cremorne which was sold for $416,000. There are substantial costs that have been incurred by the parties. These are as follows:-

Executor's accrued costs $3,500.00 Executors unbilled or unpaid legal fees $13,583.57 Executors estimated legal costs $15,500.00

Plaintiff Jill Day's legal costs $50,500.00 Total $161,783.57 7 All these costs were based upon a three day hearing. The hearing in fact has occupied four days of court time and there will be some increase. If all the costs were allowed out of the estate the estate would be reduced to around $260,000. 8 The plaintiff, Jill Day, has sought an order that she receive the whole of the estate of the deceased while the plaintiffs, Pamela Maguire and Judith McLennan, seek an order that they each have one third of the residuary estate. Substantially the dispute has been between the sisters and the trustee has thus played a role in putting forward the situation of some of the grandchildren and assisting the court generally in relation to the matter. 9 In order to assist an understanding of the background of the case I will deal with some matters of history in a brief way. The deceased married her first husband, Owen Williams, on 19 October 1929. Their first child, Pamela Maguire, was born on 8 May 1930. Some time prior to 21 March 1933 there was a separation between the deceased and her first husband, Owen Williams. On 21 March 1933 there was a Childrens' Court order under which Mr Williams was ordered to pay maintenance to the deceased in respect of Pamela. There was thereafter a reconciliation between the deceased and her first husband and on 19 June 1934 the plaintiff, Judith LcLennan was born. In 1940 it appears that there was a final separation between the deceased and her first husband, Owen Williams. There were proceedings in this court for the dissolution of that marriage. It is apparent from that file that between May and August 1941 the deceased lived with a Lt Col Frank Marshall in Melbourne in Victoria. He was the person who became the deceased's second husband. A petition for the dissolution of marriage was presented by the first husband on or about 22 August 1941 and on 13 December 1941 the court found the adultery proved and granted a Decree Nisi. The question of custody was stood over generally with liberty to restore on 21 days' notice. The Decree Nisi became absolute on 31 August 1942. No subsequent application for custody was ever made by the deceased. Questions of custody were discussed and there is correspondence between the deceased and her first husband in which she seeks custody. This occurred in June and July 1941. 10 The deceased and Lt Col Frank Marshall married on 18 November 1942 and at some stage in 1943 the deceased resided again in Sydney. Her new husband was absent on army duties for a substantial period in 1943 and there was extensive correspondence between the deceased and Lt Col Marshall in which one of the subjects was the various visits which the deceased was then able to arrange to see her daughters by her first marriage. On 9 January 1944 Jill Day was born she being the daughter of the deceased and Lt Col Marshall. The two children by the first marriage had since 1940 been educated at a boarding college run by nuns at Parramatta. By the end of 1944 Pamela had completed her schooling and was leaving school to start further studies. About that time there was a visit by the deceased to Pamela when she asked her daughter her to come and live with her and Lt Col Marshall. Pamela declined that invitation. The deceased thereafter never saw her daughter, Pamela, again nor did she ever again see her daughter, Judith. 11 In the late 1950s there was an attempt to arrange a meeting between Judith McLennan and the deceased. During the course of that there was a telephone call between Judith and the deceased who asked if they could become friends. Judith McLennan refused that request and there was no further contact between the deceased and Judith. 12 The deceased's husband, Frank Marshall, died on 26 January 1975. He left the whole of his estate to the deceased. It is apparent that from about 1977 onwards the deceased started to develop a drinking problem and this caused difficulties in the deceased's relationship with her daughter, Jill Day. I will return to the details of the relationship of the plaintiff, Jill Day, and the deceased but it is apparent that, unlike the other two daughters, there was a continuing relationship between them. The plaintiff, Jill Day, had a daughter who was born on 10 March 1981. Her marriage to her daughter's father, Chris Day, broke up three years later and she formed a relationship with Mr Bill Dudley which apparently was disapproved of by the deceased. On 4 May 1990 the deceased made her last will. By 1991 the deceased seemed to be getting over her alcohol problem and there was far more contact between the deceased, Jill Day and her daughter Lucie. In December 1995 Kristina McLennan, Judith's daughter, wrote to the deceased without her mother's knowledge. That prompted a letter back from the deceased welcoming the contact. By 1997 the deceased's health situation had deteriorated. On 3 January 1998 there were some discussions between Jill Day and the deceased about her will. The problems with the will were raised with the deceased and she indicated that it was only the plaintiff, Jill Day, and her daughter, who were to benefit and that they were to inherit the property. She died two days later. 13 In this case all three plaintiffs are eligible persons and fall within sub-section (b) of the definition of eligible person in section 6. There are difficulties with the claims of Pamela Macquire and Judith McLennan. It is necessary to look more closely than usual at the meaning of the word "ought" in section 7.

14 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person." 15 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word "ought" in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts. ….. It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose. The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased. In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that "many cases suggest that an applicant must show a moral claim …", he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme. It seems to me that the introduction into s.7 of the present Act of the word "ought" in replacement of the words from s.3 of the 1916 Act "as the Court thinks fit" shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word "ought" seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case." 16 Meagher JA (NSWLR at 570) agreed with Priestley JA.

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

19 In Benney v Jones, Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1. "Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 20 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:" 21 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 22 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said: "Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962." 23 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs, "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. .." 24 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows: "In Singer's case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language". They then say "the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty." 25 Young J also observed: "In Fraser's case, Kirby P at p29 said that "I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning "moral duty". However, His Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law "either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier (p27)." "Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words "moral claim" in decisions under this Act. "Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 "the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order." 26 In Walker v Walker, (p 27) Young J noted: "It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff. Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …" 27 It seems to me that the formulation of His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters. Before turning to the question of the relationship between the relevant parties and the deceased I will briefly note the present financial situation of the relevant parties. 28 Jill Day is 56 years old and works as a graphic designer. She is currently working under a 12 month contract for a salary of $53,000 per annum. Her employment is not secure and she has in the past experienced periods of unemployment, as has her current partner, Peter Hassell. Peter Hassell's qualifications in chemistry and diplomas in colour applications for plastics and textiles are no longer in demand in Australia. He was retrenched in October 1997 and was unemployed until May 1999. His current salary is $38,000 per annum. Both Jill Day and Peter Hassell would appear to be vulnerable to any economic recession. They have pooled their resources in an effort to "get ahead", financially, whilst they can still work, but their strategy entails considerable financial risk. 29 Jill Day and her partner have mortgage obligations totalling about $400,000 comprising $220,000 borrowed for the purchase of a property at Kays Avenue, Marrickville and $182,000 borrowed for the purchase of 98 Mitchell Road, Alexandria. In addition, they have repayment commitments totalling $34,000 on their motor vehicle and lease obligations for computer equipment of $3,600. Their principal assets are the Marrickville property (estimated market value $400,000) and the Alexandria property (estimated value at $285,000). On any view, they are heavily geared financially, and vulnerable in the event of any significant interruption of their earnings. They are also heavily exposed (especially when regard is had to their age) to economic externalities such as variations in interest rates and any downturn in the property market. 30 Jill Day also continues to support her daughter Lucie by providing accommodation for her and financial support. Further, she wishes to assist Lucie to undertake an interactive multimedia design course, so that Lucie can be qualified to commence a career in that area. Lucie has been unsuccessful in obtaining entrance to a suitable course run by TAFE. Given that over 600 people applied for 15 available places at TAFE in January 2000, it is obviously difficult to obtain admission to that course. Private colleges offer similar courses. A two year course at Billy Blue Graphic Design costs $22,600. The JMC Academy Multimedia course with a subsequent UWS degree costs $34,750. Given Lucie's present limited employment prospects and Jill Day's need to support her on an ongoing basis, it would clearly be desirable, and it would assist Jill Day financially, if she were able to pay for Lucie to obtain the qualifications which would allow Lucie to establish herself in her chosen career.

31 Pamela Maguire's present position is as follows. She and her husband receive a Commonwealth Aged Pension of approximately $300 per week. They have food and household expenses of approximately $247.00 per week. Her husband, Lymon, has in his account at Westpac approximately $30,000.00 which presently earns interest of approximately $1,000.00 per annum. The principal amount was approximately $25,000.00 earlier this year however Lymon received $4,000.00 from the NRMA because of his 50 year membership. 32 Pamela Maguire's and Mr Maguire's joint assets are as follows: 5 Banool Street, Sawtell - approximately $135,000.00

33 Pamela Maguire wishes to trade in their motor vehicle on a smaller one and believes that she will receive a sum less than $8,000.00 for her Camry motor vehicle and a new Mitsubishi Lancer will require approximately $22,000.00. 34 The Maguire's Sawtell house is also in need of repairs and maintenance including repainting. It is cement rendered and cracks started to form some years ago. The cost of repainting the house would be at least $2,500.00. The Sawtell house is also in need of blinds. The cost of blinds is more than $1,500.00. She also wishes to replace her curtains of some 16 years of age. The bathroom is also in need of repairs including rectification of leaks to the shower recess and she has recently received quotations for approximately $2,500.00 to make those repairs. 35 There is also a manual garage door at the house, that both her and her husband are finding difficulty in opening. hey would like to install an automatic garage door which will cost about $3,000.00. 36 The dishwasher in the Sawtell house is also of some age (15 years), is malfunctioning and has not been able to be used for the last 7 months, similarly the refrigerator is of the same age and requires new seals and possibly replacement. 37 Lymon Maguire's back problems will in all likelihood deteriorate, as will his health in respect of his heart. She seeks a fund to be set aside to be able to meet medical expenses, hospital treatment and their own day to day living expenses until such time as they are deceased. Although it is her husband's health this has a direct result on the funds available to Pamela Maguire.

38 Judith McLennan's current position is approximately as follows:

4/28 Camfield Street, Alexandra Headland estimated worth between $82,500 - $87,500.

39 Judith McLennan and her husband have a combined weekly income in the form of the Commonwealth Governments Aged Pension of approximately $372.30 and have outgoings on a weekly basis of approximately $377.00.

40 The McLennan's home unit is in need of a new kitchen and a new bathroom both of which are in a state of disrepair and require extensive renovation and replacement. The exterior of the building also requires repainting. For the four units in the building there is a proposed cost of $5,500.00 to repaint the building. Judith McLennan requires sufficient monies to be able to renovate her bathroom and kitchen and to cover the cost of repainting the building. She also requires an amount of capital to be able to attend to her financial needs of herself and her retired husband.

41 There were some affidavits read on behalf of some of the grandchildren who take under the provisions of the will. I have already dealt with the situation of Lucie Day, the child of Jill Day, when discussing her mother's situation. Kristina O'Connor is presently 35 years of age. She is married to her husband who is 61 years of age and is employed as a journalist with the Australian Broadcasting Corporation. They have two children born in 1996 and March 2000. Kristina has tertiary qualifications and has previously worked as a part-time administrative assistant with the Australian Broadcasting Corporation. Mr and Mrs O'Connor own a cottage at 19 Moffit Street, Milton, Brisbane which is subject to a mortgage of some $8,000. They have a four year old car but otherwise no savings. Mr O'Connor's salary after tax and superannuation is about $1,466 per fortnight and from this has to be met payments on the mortgage of $153 per fortnight and maintenance in respect of her husband's children by an earlier marriage of $150 per week. Kristina was one of Judith's children and she was instrumental at one stage in trying to make contact with the deceased. She wrote to the deceased and received a letter back welcoming the contact. She did this without the knowledge of her mother and it is no doubt to her credit that she attempted to locate her grandmother. 42 Susan Pamela Lockyer is 46 years old. She is the daughter of Pamela Maguire. She is married to Gary Richard Lockyer who is the same age and who has a business making leather goods. The business is not profitable, his income being less than $5,000 per annum. Susan has a Bachelor of Nursing degree. She is employed as a clinical nurse specialist at Ballarat Base Hospital where she earns a salary of approximately $43,000 per annum gross. She and her husband live in a weather board cottage on an unproductive five acre block and they owe $69,000 to the Commonwealth Bank on that cottage. The monthly repayments are $1,080. 43 Judith Ann Kenny is 43 years of age and is the daughter of Pamela Maguire. She is married and her husband, who is a casual bus driver in Armidale, earns $20,000 per annum. They have one child who is aged eleven years. Although she is employed as a laboratory technician at the University of New England it is likely that she will be retrenched. They own their home at 105 The Avenue, Armidale which is subject to a mortgage of $95,000 and requires repayments of $1,200 per month. They have two old cars. Judith also owns an investment cottage in Armidale which is leased for $165 per week which provides an income of approximately $4,000 per annum. 44 Scott Andrew McLennan is 31 years of age and was educated at a good school but apparently left school after Year 11. He has no trade or tertiary qualifications. He is not married and does not have any dependents. The last job that he had was about five years ago and he has for many years been subsisting on the pension of $350 per fortnight. He has no savings or capital assets. 45 It is necessary to consider in more detail at this stage the relationship between the three children of the deceased and the deceased. I will first deal with the relationship of Jill Day with her mother. 46 In her affidavit Jill Day described the relationship which she had with her father and mother as a close and loving one up to her father's death in 1975. Thereafter she spent some time with her mother supporting her but about two years after her father's death she says that her mother developed a serious drinking problem. Apparently she started visiting a local RSL club probably as a result of her loneliness. As well as her drinking problem the deceased also had problems with her sight and she became reluctant to leave her home. This led to her daughter, Jill Day, visiting her mother from time to time rather than her mother coming to Jill Day's home. Jill Day used to clean the unit which was neglected by her mother. The deceased also neglected her own health. Jill Day spoke of a difficulty which occurred when she was pregnant with her daughter, Lucy. As a result of her drinking her mother would frequently become very demanding and this was upsetting for Jill Day. At that stage her husband forbade her to speak to her mother and she had little contact over the period of her pregnancy. Jill Day spoke of the last five to seven years of the deceased's life and their relationship at that time. She said that the deceased reduced her drinking and she became more accommodating. This led to an improvement in the relationship. As a result Jill Day spent more time with her mother and shopped for her. On those occasions Lucy would often also attend and she has given evidence to this effect. Jill Day spoke of attempts to help her mother by arranging paid help and obtaining a Vodafone alarm. However, her mother rejected these offers. There was a letter which was written not long before the death of the deceased from Jill Day to her niece, Kristina O'Connor, after there had been contact between Kristina and the deceased. The letter was in these terms:- "My mother and I have always had a stormy relationship which worsened after the death of my Dad some 20 years ago (Frank Marshall died 26 January 1975). I adored him as did Mum and I guess that without his link we drifted apart. If I were to draw a graph of our relationship it would be a series of hills linked by long flat valleys, but as we both grow older the valleys are less deep and long. We are both fiery, stubborn women who are perhaps finally learning to accept each other for who we are rather than what we would both wish we were. Your grandmother is a very strong person and I believe, a very sad person. She never talked, with me at least, about those early years and the incredible pain and guilt she must have gone through. Tina, she is terrified of opening old wounds for your mother and her sister and for herself but a delight to get your first letter was palpable, still is, but I don't think she knows what to do, to say to you and that's why she hasn't written.... She must be 86 (she's always put her age back) and while she's had her fair share of poor health over her life she's pretty hale and hearty. Her biggest problems are her back (calcification of the spine) and her eye sight, but she still lives on her own, shopping for herself and playing the occasional game of cards. We see each other rarely but she has suggested that she comes to see us in a few weeks time. If this actually happens it will be the first time that she's been in our home in 7 years." 47 This letter was put to Jill Day and she accepted some of these matters. An example was the last sentence I have quoted. She says, however, that she exaggerated the poor relationship with her mother in the letter to assist Kristina's mother whom she expected to read the letter. I am prepared to accept Jill Day when she says that she exaggerated the poor relationship between them. However, I do not think that this letter causes a great problem. From the evidence it seems to me that there is some truth in what Jill Day has said in the letter about her and her mother both being stubborn. Apart from the occasion when her pregnancy interrupted the relationship there is nothing in the evidence about the relationship which would suggest to me that either party abandoned the other. In particular some of the difficulties were caused by the deceased's drinking problems. It is also apparent that towards the end of the deceased's life when her drink problem improved that Jill Day continued her contact with her mother and increased that contact in order to assist her mother. In my view there is nothing in the relationship between the deceased and Jill Day which would any way impinge upon the claim which Jill Day has for provision under the Act. 48 I turn to consider the relationship between Pamela Maguire and Judith McLennan and the deceased. Earlier in paragraphs 9 - 11 I have set out the basic chronology of the lives of the deceased and her two daughters. There has been tendered in evidence in these proceedings a large number of letters written between the deceased and her second husband Lt Col Marshall. They give a rare insight into the struggles the deceased was having in attempting to see her daughters. When she came back to Sydney in 1943 it is apparent that she was able to have access to her two children during that year and through early 1944. The girls were, of course, in boarding school and one sees from the other evidence that their father normally visited them on a Sunday and they spent most of their holidays with their father's relatives. There was thus fairly substantial contact between the two daughters and their father when they were young and growing up. Given what evidence there is this contact is likely to have been more frequent than the contact they had with their mother in 1943 and 1944. 49 A defining moment came in the relationship between the deceased and her daughter Pamela Maguire when there was the request by the deceased to Pamela to come and live with her instead of her father. This was most likely at the end of Pamela's schooling when Pamela was 15 years of age. Pamela Maguire declined the invitation to come and live with the deceased saying that she was happy with her father. She did not think she could leave him. Thereafter the deceased took no further steps to contact her and she never saw her daughter again. 50 It is too easy to label the circumstances of that parting with epithets that discredit one or other of the parties. As far as Pamela Maguire was concerned she was a young girl of 15 years of age who had more frequent contact with her father than with her mother. The contact she had with her mother was limited in its nature and consisted mainly of visits to and outings from school. Probably as a child the persons having the most influence upon her would have been her father and the teachers at her boarding school. It is extraordinarily difficult for a child to handle the separation of parents. In view of the extent of the contact with her father it is probably not surprising that she chose to remain with him and maintain the status quo. Such a decision did not necessarily involve no future contact with her mother. 51 From the deceased's point of view Pamela Maguire's decision must have been difficult for her. The deceased was in a situation where she had a two year old child from her second marriage and the prospect of a fresh life ahead of her with that new family. In making the decision not to have further contact with Pamela Maguire, there could have been be a number of factors which may have influenced her. They may have ranged from the desire to have a fresh start in life to the desire to protect her daughters from the trauma of claims of affection by their mother and father which could only be resolved by a court custody application. The deceased is not here to speak for herself although some of the material indicates that she regretted her later lack of contact. The deceased clearly decided not to have further contact but I cannot form a view as to why she made this decision. 52 So far as the younger daughter, Judith McLennan, is concerned she was only eleven at the time of the discussion between the deceased and Pamela. Her recollection of events is not as good as that of Pamela's and clearly this is a natural consequence of her young age. It seems that, given Pamela Maguire's decision, it was most likely that the deceased did not make any further approach to Judith at that time. The only contact was the one in the late 1950s when Judith McLennan was in her late twenties. There was a phone call from the deceased to which I have earlier referred. Although that was an opportunity to re-establish the relationship, Judith felt she could not respond. In cross-examination she agreed that she had rejected the request for a meeting. She said the reason was that she was nervous and frightened that her mother may have later rejected her again in the way she felt she had previously been rejected. In her evidence Judith McLennan said that she missed having a mother at times such as when she had young children of her own growing up. However, notwithstanding this, she did not feel she could do anything to make further contact with her mother. The affidavit evidence of Judith McLellan recounted three recollections of contact with her mother which included the telephone call I have referred to. In the circumstances of such a minimal recollection it is easy to understand how Judith McLennan may have felt she was abandoned by her mother and hence a concern which made her hesitate about re-establishing contact. However, at that stage she was a woman in her late twenties and able to make decisions as to whether she should reject such overtures. 53 At this stage it is useful to remind myself of what was said by Young J in Walker v Walker to which I have referred in paragraph 26 of this judgment. We have here a separation which occurred between the deceased and her two daughters in late 1944 or 1945. The reason for this should not be blamed on the older daughter, Pamela Maguire, because of the choice she made at that stage. Similarly there is nothing in what the younger daughter, Judith McLennan, had done which led to that cessation of the relationship. Accordingly, these daughters should not suffer consequences as a result of that cessation in terms of their application being considered as one where they have themselves rejected their mother. Although I have some difficulty with Judith McLennan's reaction to her mother's conversation in the late 1950s, the fact that her memory (and I accept her evidence as to what her recollection was then) was of a rejection by her mother makes her reaction not unreasonable. After all it had been 15 years without contact and only a vague recollection of that contact. Although in her late twenties she had not then married or started a family. 54 Effectively in this case we have of a relationship between a mother and her daughters, in their childhood years, which was affected by her own personal circumstances and the breakdown of her marriage. She was living in a country at war and did not have control over her own or her future husband's movements. There was probably a desire not to involve the children in a contested custody application. In the passage to which I have just referred Mr Justice Young refers to there being 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 the testator, ought to have made provision for the applicant. Frequently in family situations where children have unjustifiably turned against their parents and rejected them, it is easy enough to conclude, as a member of the community, that one would not expect a testator to make provision for the child. The testator is, of course, only human. On the other hand a testator cannot (as was pointed out by Bryson J in Gordon v Parkes at 11) reject the obligation to provide for a child simply by a steadfastly maintained repudiation or evasion. 55 In this case the contact maintained between the deceased and the children was for the early part of the marriage before 1940 and for a period of some two years in 1943 and 1944. It was until Pamela was 15 years and Judith was 11 years. It was the most contact the deceased could arrange at that time. In these circumstances I would have thought it would be appropriate for a testatrix to have made provision, if she could, for these two children. 56 I turn to the question whether the three plaintiffs have been left without adequate provision for their maintenance, education and advancement in life. There has been no provision for Pamela Maquire and Judith McLellan and the provision Jill Day, receives under the will would at this stage be the income for life of on a sum of $156,000. As appeared in the evidence this provision was probably predicated upon the deceased's then unexpressed concern as to the inappropriateness of a relationship which Jill Day had had at some stage. That relationship ceased well before the death of the deceased. 57 The plaintiff, Jill Day, puts a number of matters forward as areas where she has been left without proper provision. In particular she refers to her extensive borrowings which she would like to reduce. She also has referred to some medical problems which require attention. Some of these are likely to cost in the order of $4,000 and she has not been able to afford them because of her straightened financial circumstances. She has ongoing costs for treatment for glaucoma, eye strain, anxiety and depression. She also refers to the fact that the property needs a new bathroom, laundry, external painting and landscaping. There has not, however, been any quantification of the amounts which she would propose to spend on these items. In my view the plaintiff, Jil Day, has been left without adequate and proper provision. Proper provision for her should be by way of a lump sum so that at this stage in her life when she is approaching the end of her working career she can reduce her liabilities. 58 In submissions it was submitted that the whole of the estate should pass to Jill Day. Given the absence of quantification of some of the matters to which I have referred, it seems that this is inappropriate. 59 I turn to the position of the others who have been left without any provision. 60 Pamela Maguire's situation is fairly parlous in terms of her living expenses. She and her husband survive on an aged pension. She has a need to replace her car which will cost some $14,000 and there are repairs to the home which are estimated at some $9,500. In addition she has a need for some white goods and has little by way of reserve. Given her husband's ill health this becomes particularly important as a need of her own. She should receive an appropriate sum. 61 So far as Judith McLennan is concerned she and her husband survive on the aged pension. Her home unit is in need of a new kitchen and a new bathroom the cost of which has not appeared in evidence. There is also likely to be a liability towards $5,500 for repairs to the common property of their unit. They have virtually no reserves for their old age. 62 When considering these claims it has to be borne in mind that, merely because of the circumstances of family history, it was the plaintiff, Jill Day, who tendered to her mother's needs and had the contact she has referred to in her evidence. In Singer v Berghouse the High Court drew attention to the fact that both the first and second stage of the process must take into account "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". 63 In contrast to Jill Day, Pamela Maguire and Judith McLennan had little contact with their mother. This difference is a factor to be taken into account when determining the amount of provision which is appropriate for each person. So too, for example, are their respective financial situations. The weight given to each will depend upon the circumstances of each individual case. 64 There is the evidence of the situation of some of the grandchildren. Such grandchildren are middle aged and have some needs. However, their needs in respect of an estate of the size of this estate are ones which really cannot be accommodated when their parents' needs are greater. 65 Accordingly, in lieu of the provision in clauses 4A, 4B and 4C of the will I order that the residue of the estate of the deceased be held as to three fifths for the Jill Day, one fifth for Pamela Maguire and one fifth for Judith Ann McLennan. 66 So far as costs are concerned, the evidence disclosed a somewhat unusual situation in that the retainer of the solicitors for Pamela Maguire and Judith McLennen contained provision for a 25 percent uplift factor if their actions were successful. This was because the matter was run on a "no win no charge" basis. I will hear submissions on orders for costs at a convenient time. Exhibits may be returned.

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