Doherty v Harvey

LEGISLATION CITED : Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW)

Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Ellis v Leeder (1951) 82 CLR 645 Foley v Ellis [2008] NSWCA 288 CASES CITED : Palmer v Dolman [2005] NSWCA 361 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Wentworth v Wentworth, estate of G M Wentworth (Unreported, NSWSC, Bryson J, 14 June 1991) Wheatley v Wheatley [2006] NSWCA 262

PARTIES : Jason James Doherty v Phillip William Harvey

FILE NUMBER(S) : SC 2009/288546 (formerly 2009/2453)

Plaintiff - Mr R D Wilson COUNSEL : Defendant - Mr A Hill Intervenor (for Mr Heath Lawrence Doherty GAY) - Mr M Bradford

SOLICITORS : Plaintiff - Cooney Harvey Doney Solicitors, Kempsey Defendant - Ellis & Baxter, Murwillumbah

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/288546 JASON JAMES DOHERTY v PHILLIP WILLIAM HARVEY JUDGMENT Ex Tempore 1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late John James Doherty who died on 14 February 2009 aged 66 years. The deceased was survived by the plaintiff, his only son. He was also survived by his deceased daughter's son Heath, and John Newton, a son of his former defacto partner.

2 The deceased three former wives, and his de facto partner, have been served with notices and make no claim.

3 The deceased's last will was made on 5 July 2008 and he appointed the defendant, a solicitor, as executor and trustee.

4 The only provision for the plaintiff was the forgiveness of a debt alleged to be owed by the plaintiff, Jason, to his father. As they are relevant later, I set out the terms of the bequest to the plaintiff:

"4. I have a son, Jason James Doherty, born 22 March 1964 at Sydney, Passport No L 7908251 (hereinafter referred to as 'Jason') I have included these details about Jason so that in the event of my death he can be located by my Trustee, as his present whereabouts are unknown to me. Further, the following provision that I have made for Jason has been done so having regard to a number of factors, including his lack of respect for me and the fact that he has had very little contact with me over a number of years, his use of illegal drugs, his disregard for property that has been given to him by me and his grandmother and a number of broken promises that he has made to me with respect to a debt of Jason's to the Rural Bank that I paid for him in 1983. Jason, I have a message for you and that is 'We reap only what we sow.'

5. Having regard to the matters contained in the preceding clause, my gift to my son Jason is that I forgive the debt mentioned in the preceding clause of my will."

5 He made the following provisions for his grandson, Heath Gay.

"(a) A gift of three firearms; (b) A drum kit and a box trailer; (c) (i) Qantas Staff Credit Union Savings Account; (ii) Qantas Superannuation Account; (iii) Accounts in Holiday Credit Union."

6 These gifts were the subject of specific provisions as to the debts and testamentary expenses of the deceased.

"(d) Caravan and annex; (e) Falcon Utility motor vehicle; (f) A Coca Cola and Pepsi collection; (g) Half share in residue."

7 In regard to John Newton the deceased made the following comments at paragraph 9 of his will:

"John Terence Glen Newton (hereinafter referred to as 'John' is the son of Clem and I regard John as my self-adopted son (although not legally adopted). I have a close relationship with John. He has been a member of my household for many years and, for all intents and purposes, I treat him as my son. Having regard to this, I make the following provisions in my will for John."

8 He then made the following provision in paragraph 10 of his will:

"Subject to the provisions of this Clause, I give devise and bequeath to John my real estate, together with the contents of my home and my other motor vehicle. It is my wish that John resides in the house for at least two (2) years before he should decide to sell same, however, this gift is not dependent upon him doing so."

10 He also gave a legacy to Patricia Mason, a friend, in the sum of $10,000.

11 The estate of the deceased consisted of his house, various items which have been reduced to cash, and some personal items. The present situation of the estate is as follows:

Land and house $300,000 Cash in trust account $75,197 Motor vehicle, Ford Falcon $11,000 Motor vehicle, Suzuki $19,000 Fire Arms $5,200 Caravan $3,000

12 He had amounts of superannuation entitlements which, under the will, were to pass to Heath and amounted to $83,209.85. They were paid into the Solicitors Trust Account, which has also received income from the house, and net expenses. Residue initially amounted to $24,192, but there has been payment out of administration costs of $20,730. There has also been receipt of income from renting the house and expenses of storage of personality pending resolution of the proceedings.

13 The defendant's costs of these proceedings, and another proceeding brought against him, amount to $56,800. The plaintiff's costs are in the sum of $50,283. Both of these were for two day estimates, and thus, as the case has only run for one day, the likely costs will total $96,000.

14 Allowing for payment out of these costs, and the legacy of $10,000, the likely net estate after selling costs of the realty will be in the order of $260,000.

15 The plaintiff, James Doherty, was born in March 1964. His sister, Tanya, was born in July 1965. His sister, Tanya, has a son Heath, to whom I have referred. In 1974 the deceased and Diane Doherty, the plaintiff's mother, were divorced. After that happened the plaintiff remained with his mother and Tanya stayed for a while with the deceased. In 1978 the deceased re-married a lady, Joanne Warner.

16 The plaintiff completed his year 10 at Bowral High School in 1980 and left school when he was 16 years of age. In 1985 the deceased married his third wife, Lesley Sutton, in the Las Vegas area. The plaintiff had progressed with his career and became a flight attendant with Qantas. The deceased also at that time was a chief flight engineer with Qantas.

17 The deceased met Clemency Newton in 1988 and at that stage Clemency had a baby, John Newton, who was a few months old. The deceased and Clemency commenced a defacto relationship which then lasted for some eight years.

18 In July 1989 Tanya had her son Heath. Tanya had a difficult relationship with Heath's father and this relationship was finished in 1990. The problem was apparently Tanya suffered from troubles relating to drug addiction and other problems, including drinking, which made the relationship impossible. Heath lived with his father and his father took him to see the deceased from time to time during the subsequent years.

19 In June of 1994 Tanya Doherty died from a drug overdose and it was the plaintiff who discovered her dead on the floor of her home. In 1991 the deceased had retired from Qantas, and in 1995 the plaintiff says that he resigned from Qantas.

20 In March of 2008 there was a visit by the deceased to the plaintiff in Rockhampton, to which I will refer in a little more detail later. He had also made another will on 5 November 2004 which contained somewhat similar provisions to the present will, including the description of Jason and also John.

21 Probate was granted in July 2009 and the summons was filed in time in April 2009.

22 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance 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 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."

23 The plaintiff is 46 years of age, single with no dependents. He lives in a caravan park in Rockhampton and receives Centrelink payments of $400 a fortnight. He says he last worked in 2010. He has worked most of his life, including a period from 1988 to 1995 when he was employed by Qantas as cabin crew, rising to the position of senior flight attendant. His only assets, he says, are some personal belongings. He did not contribute to the estate of the deceased.

24 The debt referred to in the will is disputed. The sum of $4000 is said to be lent in 1981. In any event, it is statute barred and of no consequence; hence I will not resolve the dispute.

25 So far as the relationship with the deceased is concerned, it was not a good one. There were claims of physical abuse by the deceased when he was a child. As I have mentioned, they both worked for Qantas. According to the plaintiff, his father would put about rumours about him which would mean that he was not regarded well in his work situation. Whether that is true or not it is hard to say. It is only a perception which the plaintiff has. But I can appreciate that he might well feel that.

26 The plaintiff himself in his affidavits admits that the relationship with his father was an on and off relationship. He gives very little detail of contact after 1995 when he left Qantas and he then mentions that in 2007 he had a number of letters from his father when he, the plaintiff, was managing a hotel in Rockhampton. This resulted in a plan for him to come and see him in Rockhampton.

27 This visit eventuated in February 2008 and the deceased stayed with him for two days. There was a video produced which was said to be a video taken by the deceased, which was somewhat strange; it was the deceased recording almost a travellog and it showed the contents of the plaintiff's caravan and his situation in that accommodation. According to the plaintiff the visit was a good one but when he got up the next morning his father had gone.

28 Quite a different story appears from the letters written by the deceased. The deceased wrote a letter to a friend when he described the visit in these terms:

I went up to Rockhampton a month ago to visit my son Jason Doherty. He lives in a one bed-seater cabin in a caravan park in North Rockhampton. He is now 44 years old, still on marijuana. A total waste of space. Hasn't worked for years. And is living in a dream. So I will not be leaving anything in my will to a lazy drug'u.. That's for sure and when I couldn't stand it any more bullshit that was coming out of his mouth. And I started to get stuck into him verbally.

He flew at me in this schizophrenic rage, grabbed me in a head lock. And ejected me out of the door to his cabin. Slammed the door yelling, swearing abuse as I walked away. I could hear him carrying on like a raging bull. So I went back to my cabin. Packed my bag and went into town. I left on the train next morning for Brisbane.

I am ashamed to call him my son. What a total waste of a talented person. I still feel in my heart that he was the one who gave his sister Tanya the shit drugs that she took that killed her. But I don't have the proof. Just a very strong gut feeling about the whole matter. Anyway love. Enough about that no hoper.

29 This version was also told by the deceased to Heath's father, with whom the deceased had contact.

30 It can be seen it is quite a different version and it was, of course, denied by the plaintiff.

31 The plaintiff was not a satisfactory witness. For instance, he swore very definitely in his affidavit he had never used marijuana in his life but, when confronted in the witness box, he admitted that he had. He was also extremely evasive in giving his evidence, and also advocated his case. In the circumstances I prefer the deceased's evidence, which I accept.

32 At best the relationship could be described as of no great substance, with both parties having little regard for the other. The plaintiff had a very disapproving view of the deceased and his attitude to relationships with women.

33 It is necessary to consider the situation of others who have a claim on the bounty of the deceased. These are, of course, the beneficiaries in the case. The legatee, Pauline Mason, appears to be his last friend towards the end of his life and she has put on no evidence. The Court can assume that she does not want her financial circumstances or the nature of her relationship with the deceased before the court. However, that being said, neither party seeks to disturb the legacy.

34 Heath is single, aged 21 years with no dependents. He lives with his girlfriend at Mount Victoria and pays no board. He is training to be a tattooist. He has personal effects and a car, which is not going, but on which he has spent a lot of money. He did not contribute to the deceased's estate.

35 His evidence is that his father used to take him to see the deceased. He would stay with the deceased for two weeks at a time, often for a number of times a year. They communicated at Christmas and on birthdays. Plainly, the deceased was fond of Heath and that is made plain by the provision made for him in the deceased will.

36 John is single, 22 years of age, and lives in Perth and he has no dependents. He has been successful in pursuing his career as a chef. He has only personal effects and lives in rented accommodation and owes about $NZ15,500 for a study loan. He is very keen to travel to France to further his career.

37 It is obvious from the letter written by the deceased to John that the deceased regarded him as a son, and he had great affection for him. He raised him as a son from when he was a few months old for the next eight years.

38 Here in this case there was a very mediocre relationship between the plaintiff and the deceased. In Foley v Ellis [2008] NSWCA 288 the Court of Appeal referred to this kind of problem in these terms:

"101. The more recent authorities held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant. In Palmer v Dolman Ipp JA , after a review of the cases, observed (at [110]) that:

'…the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.'

See also Wheatley v Wheatley [2006] NSWCA 262 at [22] - [23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse .

102. The authorities indicate that where the claimant has been estranged from the testator or testatrix and the application of section 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, estate of G M Wentworth (Bryson J) quoted in Wheatley v Wheatley at [22]. In addition, section 9 (3) (b) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, not to over simplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time. The 'wise and just' testator or testatrix ( Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this."

39 Nothing has happened between the deceased and the son that is sufficiently serious to disbar the plaintiff from making a claim. However, the mediocre nature of the relationship is something that has to be seen in the light of the legitimate claims of the two other major beneficiaries. They were the people to whom the deceased owed responsibilities, which he readily accepted, for part of their lives.

40 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. In this case the plaintiffs said in his affidavit:

"39. I seek provision out of my Fathers estate which would:

(a) provide me with a capital sum which I could rely upon in the future;

(b) enable me to purchase a reasonable second hand car. This may cost $25,000; and,

(c) provide me with a house to live in. Ideally I would like to receive my father's home in Murwillumbah."

42 When I look at the evidence that has been put forward in respect of this I am reminded of what was said by Sheller JA in the Court of Appeal (Cripps JA agreeing) in Singer v Berghouse;

"I must say that I find it extraordinarily that the appellant presented scant or no evidence as to her present income and outgoings, or as to her intentions or needs for the future or as to what lump some provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the Court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in section 9 (2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant."

43 Here, although there is a reference to accommodation, there is no alternative case put forward for accommodation costs for the plaintiff.

44 Although he did not claim the costs for maintenance, one can assume that this probably is because he was likely to obtain some further work. He has had a good history in work and there is no reason why he could not expect to do so. The plaintiff asked for something a little under $240,000.

45 In considering what little the plaintiff puts forward about what his needs are in the future, I also have to consider that both Heath and John are at a point in their lives when they both would substantially benefit from some capital to set themselves up.

46 The deceased's provision for Heath was $83,209 but the impact of costs will affect the amount which he was to receive. It is apparent from the will that he thought Heath had a property at Mudgee. This is not so as any interest in that property has been realised and applied to his education and advancement in life.

47 The scheme of the will applies the burden of testamentary expenses and the legacy and the residue and if that was insufficient, then upon the assets passing to Heath. See part 2 of the 3rd schedule to the Probate and Administration Act 1898 (NSW) and clause 7 (c). It is, in my view, inappropriate that the burden of costs should affect Heath's share.

48 John needs provision to enable him to advance his career but he does not need the whole house. I think an appropriate provision for the plaintiff and beneficiaries can be achieved if I order that the cost of those proceedings and the legacy are charged on the deceased's house and the balance of the proceeds of sale of the house be held for the plaintiff and John equally.

1. In lieu of the provisions of clause 10 of the Will there be a bequest of: (a) the deceased's other vehicle, a Suzuki, to John Newton.

(b) the deceased's contents of his home to the plaintiff.

(c) the deceased's home to the plaintiff and John Newton equally.

2. The costs of the plaintiff on the ordinary basis and the defendant on an indemnity basis are to be payable out of the estate of the deceased and are to be a charge on the deceased's home and any sale proceeds.

3. I order that the pecuniary legacy in favour of Pauline Mason of $10,000 be a charge upon the home of the deceased and any sale proceeds.

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