FELLOWS v PATERSON

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

2590/00 MARGARET ELIZABETH FELLOWS v GORDON WALTON PATERSON - ESTATE OF JOHN HECTOR PATERSON JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1984 in respect of the estate of the late John Hector William Patterson who died on 5 December 1998 aged 92 years. The deceased was survived by his daughter, the plaintiff and his son, the defendant. The deceased's wife had predeceased him. 2 The deceased made his last will and testament on 7 May 1996. Under that will he appointed the plaintiff and defendant as executors. The plaintiff renounced and probate was taken out by the defendant. The deceased bequeathed an investment bond to his daughter and gave her a legacy of $320,000 subject to an adjustment in movements in the consumer price index number. He left the residue of his estate to his son the defendant. 3 The deceased had made an earlier will in October 1988 in which he left a more substantial provision for the plaintiff. That provision was said to be an amount equal to one half of the deceased's property Hells Gate at Balranald. 4 At the date of his death the estate of the deceased amounted to $1,717,170. The assets in his estate were as follows. Hells Gate South Balranald $790,000 Money in bank accounts $418,806 Life insurance policies $ 13,179 Shares in WMC Ltd $ 3,308 Debentures $137,640 Loans to Noareef Pty Ltd $338,926 Interest in partnership J H W Patterson & Son $ 9,311

5 By the time these proceedings commenced on 1 February 2002 the estate had been distributed. The plaintiff received shortly prior to the date of death the sum of $69,071.64 as a result of cashing in an investment bond that she had been left by the deceased. The plaintiff received her legacy under the will on 11 October 1999 in the sum of $326,184.97. 6 The balance of the estate was transferred to be defendant. He received the following items. Hells Gate South, present value $ 910,000 Money in bank accounts $ 114,674 Investment Bond $ 68,568 Debt owed by Noareef Pty Ltd $ 338,926 Interest in the partnership $ 9,311 Total $ 1,441,479 7 Both parties have incurred costs in the matter. The plaintiff's costs are estimated at $60,000 and the defendant's costs are estimated at $65,000. 8 It is important to set out a little of the history of the family. The deceased was born in 1906. His son, the defendant, was born on 18 March 1936 and his daughter, the plaintiff, was born on 27 June 1941. After being educated in Melbourne the defendant left school in 1952 to help the deceased run his rural properties. In 1957 the plaintiff moved to Melbourne and commenced a course in hairdressing. In the same year the defendant went into partnership with his parents in the grazing business that they had been carrying on for many years. The defendant married in 1958. The plaintiff married Donald Alexander Fellows in 1961. She was then aged 20 years. The plaintiff and her husband had four children all of them born in the early 1960s. 9 It was in 1964 that the defendant purchased his first property, "Coobool Downs". It was also in that year that the deceased purchased Hells Gate South and the defendant purchased Hells Gate North. As the name implies these are adjoining properties but they were always managed as one property. 10 In 1969 the plaintiff and her husband were made bankrupt. They then moved to Palm Beach in Queensland. In 1977 the plaintiff and her family returned to Victoria where she and her husband commenced a business known as "Midland Wastes". In 1978 the deceased retired from full-time work on his properties. The work was then carried on by the defendant and his family. 11 In 1988 the plaintiff and her husband purchased a property near Deniliquin. The business, Midland Wastes, was sold to Brambles by the plaintiff and her husband and they received $1,277,556 after paying out any debts that were owed. They provided funds to their children and purchased the property "Smythesdale" near Deniliquin. In 1994 the plaintiff and her husband sold the cattle and rice property "Smythesdale" which had been operating at a loss for some time. They then commenced a business known as "Country Waste" at Deniliquin. In July 1995 the plaintiff's husband had a heart attack. They sold their business in Deniliquin for $240,000 and moved to the Gold Coast. 12 The deceased's wife Ruby Patterson was admitted to the Nyah District Hospital in August 1995. From that time the deceased lived with the defendant and his family. On 24 June 1997 the deceased's wife died. She left an estate of $117,000, all of which was left to the plaintiff. In May 1998 the deceased was admitted to a nursing home at Nyah West. As I have indicated before, the deceased died on 5 December 1998. 13 In February 1999 the plaintiff and her husband separated. The plaintiff remained living at Tweed Heads and her husband returned to live in Deniliquin. On 11 October 1999 the plaintiff received the balance of her legacy of $326,184.97. This was substantially used to complete payments due under a property settlement which she had come to with her husband. In November 2001 a company which the plaintiff controlled called Tyalah Pty Ltd sold a property in Deniliquin for $30,000 and the plaintiff received these proceeds less expenses. 14 In applications under the Family Provision Act the High Court in Singer v Berghouse (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."

15 It is necessary to look at the plaintiff's situation. The plaintiff is single, aged 60 years and has no dependants. She has been unable to obtain employment in recent years. She has tried to obtain jobs in the hairdressing field for which she was trained as well as cleaning hotels. All her applications were turned down because of her age. The last hairdressing job that she had was in 1980 and the industry has changed substantially since then. She presently receives a pension of $200 per week. There was evidence from a psychologist as to certain disorders from which the plaintiff sufferers. According to the psychologist whose evidence was read on the plaintiff's application, she sufferers from a Generalised Anxiety Disorder and Dysthymic Disorder -late onset. He stated that these disorders would create excessive anxiety and worry and, together with her age, would render her uncompetitive in the labour market at the present time. It is clear from this evidence and also from the various attempts the plaintiff has made to obtain employment that she has little prospect of obtaining work.

16 The present assets of the plaintiff are as follows: -- 1 Navigators Way, Tweed Heads $370,000 Motor vehicle $ 19,000 Furniture $ 10,000 Jewellery $ 10,000 Cash $ 3,000 17 The plaintiff has no debts at the present time.

18 The plaintiff's property settlement was approved on 29 December 1999. Prior to that property settlement the assets which the plaintiff and her husband had were as follows: -- Industrial depot and land in Deniliquin $ 40,000 Residence at Deniliquin $ 85,000 Residence at Tweed heads $310,000 Motor vehicles $ 45,000 Caravan $ 18,000 Total $498,000

19 There were various mortgages secured on the property and outstanding hire purchase agreements on the cars and the caravan. These liabilities amounted to $262,000 which left the plaintiff and her husband then having net assets of $236,000. Although the plaintiff did not emphasise this in her affidavit evidence it became clear in her cross-examination that she had had a very difficult time with her husband. He apparently suffered from alcohol problems. He would conduct their affairs without reference to the plaintiff and in a way which from time to time built up large debts. 20 The property settlement involved the plaintiff making a payment to discharge the mortgage on Tweed Heads of $181,758.90 and also paying her former husband $80,000. The latter payment was used to discharge some common liabilities. She thus paid her husband $261,758 in order to complete the settlement as a result of which she received the residence at Tweed Heads. Her husband obtained the residence in Deniliquin and the plaintiff retained the industrial depot in Deniliquin which was subsequently sold. The payment of legacy to the plaintiff on 11 October 1999 allowed these payments to be made and for her to be in a situation where she had a home and a car with no debts. 21 It is necessary to look at the relationship between the plaintiff and the deceased. The defendant gave evidence that in 1996 the deceased told him that he was going to leave his daughter, the plaintiff, out of his will. His son had suggested that he should not do this. The plaintiff gave evidence that she maintained close contact with her parents. During the time she lived in Deniliquin she would visit her parents every fortnight and stay overnight. She gave evidence of having done shopping, house work and laundry for them. Once her mother went into the hospital in 1995 she would visit her once every six weeks. On these visits she would stay for two weeks at a time and look after her father. In the nine months prior to deceased's death the plaintiff visited him in the nursing home on a number of occasions. On one of those occasions the deceased said that he had not offered her financial assistance because he had focused his attention on the farms which he ran in partnership with his son. He also ventured the opinion that he felt that the plaintiff and her husband were self supporting and did not need any assistance. He also commented that he thought that she and her husband could not look after money and that the money they had spent on overseas trips was extravagant. I have earlier in the chronology recounted how the deceased had made an earlier will in 1988 and which he made substantial provision for the plaintiff. It also emerged in evidence that the plaintiff tried to hide from her father the difficulties that she had been having with her husband and his spendthrift ways. 22 It seems clear to me that the deceased probably did not appreciate the difficult situation which the plaintiff faced. Indeed, the separation occurred after the date of death. In my view the plaintiff was a good daughter to the deceased and any claim which she has should not be reduced on this account. 23 It is necessary to consider the benefits that the plaintiff has had from the deceased. In this case the plaintiff received from her mother's estate the sum of $117,000. This is probably strictly not relevant but I mention it as it indicates the difficulties that the plaintiff had from time to time with her husband. That sum which she received from her mother's estate she had to apply as to $63,000 to repay a debt which her husband had incurred without reference to her. She spent $20,000 on a new car for her husband at his insistence and she also spent $21,000 on the purchase of a car for herself. The balance was paid or applied to the funeral expenses and some provision of a small amount for the mother's grandchildren.

24 I have already mentioned the sum of $69,071 which the plaintiff received on the 12th November 1998. That sum was used in part to discharge finance on the vehicle which the plaintiff had and in part was used to purchase furniture and white goods for the house at Tweed Heads. 25 I have already referred to the legacy and how that was substantially applied to the payment of the sum due by the plaintiff to her husband under the property settlement. 26 It is necessary to consider the situation of others having a claim on the bounty of the deceased. In this case the only other person to be considered is the defendant. The defendant is 65 years of age and is married with one son who works with him in the family partnership. It is apparent from the history of the family that through hard work the family managed to build up their substantial grazing interests. The defendant gave an account of this and indicated that by 1989 the deceased, the family trust, the defendant and his son owned approximately 120,000 acres of grazing land throughout New South Wales and Victoria. The family farming operation normally involves running about 8,000 cattle and 8,000 sheep. The present asset situation of the defendant was put forward in his affidavit in the following terms: -- Loan to Noareef Pty Limited $960,400 200,000 shares in Noareef Pty Ltd $120,903 Loan to JHW Patterson Family Trust $ 15,493 Interest in JHW Patterson & Son partnership $ (6,270) Interest in JHW Patterson Super Fund $448,385 NAB shares $36,273

Real Estate Hells Gate South $910000 Hells Gate North $915,000 Bahpunga $160,000 Glendee $760,000

27 The defendant did not indicate that he had any liabilities but it became apparent in his cross-examination that there were external borrowings for the partnership which were secured in part upon his properties. However this is not of substantial significance because the borrowing are also secured on a number of other properties owned by his son and his Family Trust. That Family Trust owns properties valued between $4,000,000 and $4,500,000. It also has recently purchased a further property together with a neighbour. Although the external borrowings of the whole of the family are $7,500,000 there are adequate assets in terms of properties and stock to cover all the borrowings and provide a substantial surplus of assets. Although she did not own any properties the defendant's wife had interests in the partnership, the superannuation fund and shares which totaled $787,796. The deceased also had a potential interest under the family trust which owned a number of properties worth in excess of $4,000,000. He was within the class of potential beneficiary under the deed. The deed itself was not in evidence and thus one cannot form a view as to the extent of his interest. This interest is not included in the figures mentioned above. 28 The defendant indicated that he and his wife had drawings from the partnership of about $50,000. Their income tax returns disclosed income available to them in excess of this figure.

29 Overall the defendant and his family have been successful by their hard work and enterprise and they have built up substantial assets. Although they have borrowings these are not significant in the context of the assets and, indeed, at the present time, there is a borrowing facility available to the defendant of $5,500,000 with the PIBA which is only drawn down to $4,800,000 30 It is apparent that the defendant worked hard with his father throughout his life and contributed to the building up of the whole family's assets including those held by the deceased. He and his wife looked after the deceased and his wife in their old age and continued their close contact. Indeed, from 1995 the deceased lived with the defendant in the defendant's home. Apart from looking after the deceased in his old age the defendant was good to his father as he took him to see his doctors, to reunions held with old friends and to see old comrades from the Second World War. Clearly there was a close relationship with the deceased. The defendant contributed to the estate and its build up in many ways by his efforts over a lifetime of working with his father. 31 In 1993 the deceased told the defendant that he had left him the property Hells Gate. As a result the defendant set about improving that property and in particular the part which was owned by the deceased. The partnership spent $374,196 on improvements to the property. This is one more example of the contribution the defendant made to the estate. 32 It is necessary to see how the plaintiff submits that she has been left without adequate and proper provision for her maintenance, education and advancement in life. As a result of the legacy left to her by the deceased, the plaintiff is in a position where she owns her own home and an unencumbered car. 33 There are two matters which the plaintiff put forward as needs for capital. These are, first, to install a security system in her home in respect of which she has had quotes of $1,695 and $1,485. Second, she wishes to insulate her home to make it cooler in summer and she has had quotes for $2,590 and $1,781. 34 Apart from this the plaintiff put forward a need for a sum for her maintenance. I have already dealt with her inability to obtain work. As I have indicated she receives a pension of $200 per week. 35 In her affidavit sworn 29 January 2002 the plaintiff put forward an analysis of her expenditure for the period between 23 September 1999 and 31 December 2001. Her expenditure in that period was $119 780. She included in her expenditure an amount of $45,337 which she described as once only items which would not be incurred in the future. This left her with a weekly expenditure of $630 and she submitted that she should receive a capital sum which would be sufficient to give her that income. 36 At present she is receiving an income of $200 per week from the age pension. The difficulty with that source of income is that it is subject to a means test. If she has assets apart from her home amounting to $280,000 she is not entitled to the pension. She is allowed to have her home and other assets amounting to $141,000 before there is any effect on the pension which she presently receives. There was placed before the court actuarial evidence as to what capital sum would be necessary in order to make up her income. That evidence was based on the mortality rates in Australian life tables 1995/1997 and a discount rate of 5% per annum compound. The plaintiff's life expectancy was 23.6 years and the value of $630.88 per week for an expected life time from 1 February 2002 for a female born 27 June 1941 is $436,674. The value of 430.83 per week is $298,206. There is one problem with this evidence, namely, that it is based upon a discount rate of 5%. That rate is, of course, the rate fixed for the purpose of motor vehicle accident legislation in New South Wales. The proper calculation would involve the application of a 3% discount rate which is a consequence of the case of Todorovic v Waller [1981] 150 CLR 402. Since reserving judgment, the parties have agreed upon the relevant discount rate. 37 There was a substantial attack on the plaintiff's claim in two areas. The first related to the level of expenditure which the plaintiff claimed was necessary and the second related to whether the claim for this additional support was justified in all the circumstances of the estate. 38 It is clear that the plaintiff has been living on her capital over the last three years. From the legacy which she was paid the plaintiff was able to provide a home and car for herself and she also received a sum of $51,000 in cash. In October 2001 she received $27,000 from the sale of the Deniliquin property and from December 1999 to the present she has received her pension. The total sum thus received amounted to $89,000. That has all been expended. 39 The analysis carried out by the plaintiff was probably the only practical one which she could do. She went through the bank statements to try to allocate all payments to different categories of expenditure. Some of these were criticised as being extravagant. For example, in that period she spent $7,671 on clothes. Holidays were $6,676, jewellery expenditure was $10,322 and gifts to her family members amounted to $4,960. In her calculations the plaintiff recognised that her expenditure on jewellery was excessive and deleted jewellery from the estimates to which I have referred. 40 There was criticism of the plaintiff's spending which was described in submissions as a discretionary expenditure. The plaintiff has reached the stage in life where she is entitled to some small luxuries. Indeed, some of the matters to which reference was made are ones which are important for the plaintiff's well-being. Her state of anxiety obviously needs to be satisfied by the security of the present home and she needs to be able to have the company of the friends she has made in the area. She perceives her appearance as important and her wishes in this regard should not be put aside lightly. 41 Looking at the area of expenditure, to which I have referred, it seems to me that some of these items are probably above and beyond what would normally be required by the plaintiff having regards to her present situation and the lifestyle which she has been accustomed to in the past. I have come to a view about what is a necessary level of expenditure and I think the most appropriate course to take is to make some deduction for this excess. For example, the plaintiff conceded that she had to spend a lot on clothes because when she was left by her husband she had very little clothing. I would have thought that $10,000 would be an appropriate figure to reduce the expenditure over the period in question. This would put her weekly expenditure at $546. 42 In accepting that the plaintiff has only a need for a sum for her maintenance of $546 per week, the next consideration is whether it is appropriate, in all the circumstances, that she receive a lump sum to produce such a sum. Using the 3% tables the lump sum for $546 per week is $475,456 and for $346 per week is $301,296. The defendant in his submissions referred to the principles which are articulated in a number of cases and, in particular, Pontifical Society for the Propagation of the Faith v Scales 107 CLR 9. There the Chief Justice said the following at page 19:- "It has often been pointed out that very important words in the statute are "adequate provision for the proper maintenance and support" and that each of these words must be given its value. "Adequate" and "proper" in particular must be considered as words which must always be relative. The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court." 43 The submissions also referred to the fact that the legacy the plaintiff received under the will had put her in a position where she received an unencumbered house. Reference was made to the numerous cases where it has been suggested that such provision is normally not proper in the case of a child. 44 For example in Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, 23 March 1998, his Honour had this to say: "The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own. "

45 It is clear that in the ordinary situation of a child making his or her way in life the community would not expect there to be a duty on a testator to provide the child with an unencumbered home. In any event it is not correct to view the situation as the plaintiff having received an unencumbered home. She received such a home but contributed her half share of the joint assets of her husband and herself to achieve this result. That being said, the circumstances in each case vary enormously. In the present case there are number of factors which have to be taken into account to try to determine whether some additional provision for the plaintiff is appropriate. 46 I turn to a consideration of some of these factors. 47 The first group of factors relate to the situation of the plaintiff. Of particular importance is the fact that she is unlikely to obtain work which is partly a result of her age and partly a result of her medical condition. She appears not to have worked since 1980 and spent most of her life raising her family and helping her husband. The lifestyle which she and her husband had was not affluent but apparently allowed them some trips overseas. 48 Of great importance is the extent of the estate and the demands upon it. The estate received by the defendant amounted to $1,441,479. There was also the amount received by the plaintiff in the sum of $395,256.61. This estate is substantial but is less by a magnitude of many times than the assets of the defendant. I am well aware that grazing is a capital intensive business which produces a very low return on investment. There is, of course, no reason why the defendant should not be able to continue his life choice of living on the land with his family. Indeed, the contribution he has made to the estate and its properties make it imperative that any order not interfere with the continued operation of his properties. If at some later stage in life he does not wish to do that he can always retire and, like the plaintiff now asks, be supported in part by their parents' estate. 49 The situation of the defendant is, however, such that some further legacy can be accommodated without causing any great difficulty. 50 There is no-one else to consider except the plaintiff and the defendant. The problems that beset the plaintiff were not known to the deceased and, indeed, some of them occurred after he died. If the plaintiff were to receive a further legacy of $475,456, making a total benefit of $870,712, this will mean that the plaintiff will receive a sum which is almost one half of the present value of the whole estate. This gives no recognition to the superior claim of the defendant who was the object of the testator's bounty. As I have indicated he made substantial contributions during his lifetime and in his actual work on the property in the estate. A further legacy of $220,000 for the plaintiff would give her total benefits of $615,256.61. This will allow her to receive a part pension. 51 It is necessary to designate property as notional property for the purposes of meeting any claim by the plaintiff. 52 Before designating any property the Court is required to consider the matters set out in section 27 of the Act. 53 Section 27 of the Family Provision Act is in the following terms: "(1) O n an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has co nsidered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

53 The defendant carried out work through the partnership on the property once he knew that he had been left it. Leaving him with the extent of the estate assets that I have gives adequate recognition for the work which he has done. There are no other matters touching the justice and merits of the application that I have not already adverted to in these reasons. 54 Accordingly, the orders that I make are as follows:-

I order that in addition to the legacy given to the plainiff in the will of the deceased that the plaintiff receive a legacy of $220,000.

I designate as notional estate the property "Hells Gate South", Balranald being the property held by the deceased at the date of his death.

I order the plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis to be paid or retained out of the estate of the deceased.

I order interest to run on the additional legacy at the rate provided for under the Wills Probate and Administration Act after two months from today's date.

Liberty to apply for enforcement of these orders on 7 days' notice. **********

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