Foye v Foye [2008] NSWSC 1305 | Case summary

2336 of 2006 EDWARD HAROLD FOYE and PATRICIA VAZZOLER -v- BEVERLEY ANNE FOYE JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 11 April 2006 Edward Harold Foye and Patricia Vazzoler claim an order that provision be made for their maintenance, education and advancement in life out of the estate of their late father, David Whyte Foye (to whom I shall refer as "the Deceased"). 3 The Deceased died on 18 October 2004, aged 84. He left a will dated 23 March 2004, probate whereof was on 15 March 2005 granted to Beverley Anne Foye, the executor named in such will (who is the Defendant to the present proceedings). 4 The inventory of property discloses the following assets and the respective values ascribed thereto: House property situate at and known as 10 Orontes Street, Orient Point (estimated value) $600,000 Furniture (estimated value) $10,000 Moneys in building society $57,197 Subaru Forester Wagon (estimated value) $25,000 5 The Deceased, who was widower at the time of his death (his wife, Mrs Eileen Maude Foye, having died on 12 November 2003), was survived by his three children. Those children are Edward Harold, the first Plaintiff (who was born in 1943, and is presently aged 65), Patricia Helen (Mrs Vazzoler), the second Plaintiff (who was born in 1945, and is presently aged 63), and Beverley Anne, the Defendant (who was born in 1948, and is presently aged 60). I shall for convenience, and without intending any disrespect, refer to each of the children of the Deceased by his or her first given name. 6 By his will the Deceased gave his real property to Beverley and gave the residue of his estate (after payment of his debts, funeral and testamentary expenses) to be divided equally between Beverley and Edward. No provision was made for Patricia by the will of the Deceased. It is relevant, in that regard, that a document dated 26 November 1974, signed by the Deceased and by his wife, Mrs Eileen Foye, was placed in evidence by the Defendant. That document (which is admissible in evidence pursuant to section 32 of the Family Provision Act) is as follows, TO WHOM IT MAY CONCERN This letter is to clarify our decision to exclude our daughter, Patricia Helen Vazzoler, from our wills. Early in 1988 we visited my wife's brother, at Amaroo, to ask him if my wife, Eileen, could get her gold bangle (which her mother had given her after she [Eileen] had an operation on her leg at age 12) from her mother's trunk, which was still in the old farmhouse where her brother lived. Her brother said "No" he couldn't give it to her because our daughter, Patricia, had the key. A few days later our daughter, Patricia, rang my wife at our home and accused my wife of having opened the trunk and stolen a small bottle of gold that was in the trunk with a set of gold scales. My wife, Eileen, suffered a heart attack and I had to take her to Dr Finley, at Culburra. Her condition progressively worsened and she finally had to undergo a double by-pass operation at Prince Henry Hospital, Sydney. Patricia did not at any time ask about her mother's health even though she knew all about the operation from her daughters. She has never spoken to her mother since the day she accused her (over the phone) of stealing. Patricia gave her brother, Edward Harold Foye, the bottle of gold and the set of gold scales (per their sister, Beverley Anne), sometime after their mother's operation. This in our opinion is sufficient reason for her exclusion. Signed: David Whyte Foye [signature] Eileen Maude Foye [signature] Witnessed by [signature] Date 26.11.94. , 1994 7 In calculating the value of the estate available for distribution, the costs of the present proceedings should be taken into consideration, since if the Plaintiffs (or either of them) be successful in their claim, such Plaintiff or Plaintiffs will normally be entitled to an order that his or her costs be paid out of estate, whilst the Defendant, irrespective of the outcome of the present proceedings, will normally be entitled to an order that her costs be paid out of the estate. It has been estimated on behalf of the Plaintiffs that their costs to the commencement of the hearing totalled $88,000, and it was estimated that for a four day hearing their costs would total $110,000. There was no evidence of how much the costs of the Plaintiffs would total for a hearing occupying three days (that being, in the event, the duration of the present hearing). It was estimated on behalf of the Defendant that her costs will total $108,000. 8 I consider that costs totalling about $210,000 for a three day hearing, in a case that is in no way out of the ordinary, and where the assets of the estate have a total value of no more than $450,000, are quite excessive. In the event that one or other of the Plaintiffs be successful in the present proceedings, I will make an order capping the maximum amount of such successful Plaintiff's costs to be recouped from the estate of the Deceased. 9 For the present purposes, however, it is appropriate that I should proceed upon the basis that the value of the distributable estate will be at least of the order of $220,000. 10 The house property at Orient Point has now been sold, and the net proceeds of sale, in a total amount of about $362,000, have been invested. (The sale price was $375,000, that being considerably less than the estimated value of $600,000 set forth in the inventory of property.) The estate presently consists of those net proceeds of sale, together with moneys held by the Deceased in the Illawarra Mutual Building Society, together with an amount held in the St George Bank ($2,114) and the Subaru Forester Wagon (to which an estimated value of $18,000 is now ascribed). The totality of the foregoing monetary assets are held by the Defendant in two term deposits with the Bendigo Bank, in amounts totalling about $431,400 (which amounts are currently earning interest). The estate has outstanding liabilities of $4000, representing legal costs and administration expenses. 11 If the present proceedings had not been instituted, Beverley would have received the proceeds of sale of the house property, whilst the residue of the estate (being moneys in building society accounts ($57,197), furniture (estimated at $10,000) and Subaru motor vehicle (estimated value $18,000)), being in a total amount of about $85,000, would have been shared between Beverley and Edward. 12 That is, had the proceedings not been instituted, Edward would have received about $42,500; Beverley would have received the same amount, together with the proceeds of sale of the house property; and Patricia would have received nothing from the estate. 13 However, the residue of the estate, in an amount of about $85,000, will be totally exhausted in meeting the costs of the present proceedings, and, if the entirety of those costs (or even a significant part of those costs) be payable out of the estate, it will be necessary for the balance of those costs to be paid from the proceeds of sale of the house property. 14 It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court. 15 Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission. 16 Edward left school at the age of 15, and subsequently worked in various occupations. Since 1985 he has been employed by the Shellharbour Council, currently as a building supervisor. He married at the age of 21, and has three children, all of whom are adults and are no longer dependent upon him. 17 Edward and his wife own their own residence, which is unencumbered, and to which an estimated value of $280,000 - $300,00 is ascribed. Edward has superannuation entitlements of $235,111. He earns $904 net a week. Edward and his wife have cash savings in the bank in their joint names, totalling about $15,600. In addition, his wife has a separate amount in a bank account in her own name, in an amount of $14,000, and also holds a term deposit in an amount of $15,000. Edward and his wife own 1700 shares in IAG (having an estimated value of $8,266 in March 2008). The only liability of Edward and his wife is in respect of credit cards, totalling $2,500. Edward's wife owns a 2003 Hyundai Elantra motor vehicle, to which an estimated value of $8,000 is ascribed. Edward's wife is in part-time employment, until recently as an assistant nurse, earning $538 gross a week. As a result of surgery to her shoulder she is currently performing office duties. It would appear that in totality Edward and his wife have an after tax income of at least $1,081 a week. Edward's wife has superannuation entitlements of about $43,000. 18 Edward has the use of a Ford Ranger utility motor vehicle provided to him by his employer. 19 Edward did not place before the Court any evidence of his average expenditure and outgoings, although he agreed under cross-examination that his income was adequate to meet his current needs. 20 Edward gave evidence concerning certain health problems, although he offered no evidence from any medical witnesses in that regard. He is a type 2 diabetic Although not yet insulin dependent, he is reliant upon medication on account of that condition. He also suffers from asthma and high cholesterol. His monthly outgoings for medication total $101. He has a 5 percent permanent impairment of his right upper arm, resulting from an accident at work. In 1983 he sustained a permanent impairment of his right leg when his foot was crushed by a loader in a coal mine. However, it would appear that neither of those physical disabilities impacts upon his current employment or remuneration. It is necessary for Edward to wear spectacles. He also wears two hearing aids (on account on what he described as "sustained industrial hearing loss"), those hearing aids costing $2,200 each. Edward has undergone colonoscopies in the past, and is now required to have a colon check annually. 21 Edward is not a member of health fund, although he did not offer any explanation for that omission. 22 The only needs which Edward identified were the purchase of a new motor car and a new dishwasher (the cost of neither of which items was quantified), and renovations and repairs to his residence. Since Edward has a motor vehicle provided to him as part of his employment package, and since his wife owns her own motor car, it is difficult to see why he presently requires to purchase a new motor vehicle, although it was Edward's complaint that his wife's car was "nearly six years old now". 23 In his affidavit evidence, Edward identified various renovations and repairs which he said were required to his residence (new painting, new guttering, new roof, new front fence and external paving), for which he assessed the cost to be about $40,000. Edward, in his capacity as a building maintenance supervisor with knowledge of the costs of improvements and repairs and replacements, gave evidence under cross-examination that the costs of the foregoing items would be less than half the amount of $40,000. He attempted to explain the discrepancy between his affidavit evidence and his oral evidence by saying that the house also required the construction of a slab and a decking. However, no reference to those additional improvements was made by Edward in his affidavit evidence. 24 Although Edward's children are no longer dependent upon him, he and his wife have already given (and, if they become financially able to do so, propose further to give) financial assistance to their children. That assistance has already been forthcoming, upon my calculations, in the order of no less than $33,000 (which total sum includes a cash amount of between $8000 and $9000 held by Edward in a safe at home, which in July 2008, only ten days before the hearing of the present proceedings, he gave to his son). 25 Patricia who is a widow (her husband John Vazzoler having died on 9 March 2002) has three children, all of whom are independent. 26 Patricia currently resides upon a rural property situate at and known as Marooda, Amaroo Road, Molong (near Orange). 27 The precise arrangements concerning Patricia's residence upon the Molong property were anything but clear. As best as I was able to understand from, first, her affidavit evidence, and, then, her subsequent oral evidence under cross-examination on this topic, it would appear that the Molong property was acquired by Patricia and her husband by way of an inheritance in the 1980s. In 1989 they subdivided that property, originally in an area of 140 acres, into two blocks. The subdivided block comprising most of the property was sold in 2000. However, Patricia and her husband retained the remaining block (comprising two acres), upon which stood their residence. After commercial businesses in which Patricia and her husband had been involved were disposed of at a loss, the Molong property (which had to that time been in the name of either Patricia alone or Patricia and her husband, who died in March 2002) was transferred to the husband of one of their daughters, under an arrangement by which Patricia would be enabled to remain in residence upon that property for her life and after her death that property would be held for the benefit of her three children. 28 The cottage property, of which Patricia holds a head lease and which she rents out to a sublessee, is located upon the larger block of the subdivided land which had previously been in the ownership of Patricia and her husband. The purchaser of that larger portion apparently did not wish to reside in or otherwise occupy the cottage standing upon his land, and entered into the leasing arrangement with Patricia to which I have just referred. 29 For the purposes of the present proceedings, the significance of the foregoing arrangements concerning Patricia's occupancy of the two acre block and her leasing of the cottage from the purchaser of the larger block, is that Patricia is secure in her residence for the rest of her life, and will be enabled to obtain an income from the sublease of the cottage property for at least the next eleven years, until 2020. 30 Although she had originally said that the house property at Molong had been transferred to her daughter Leanne under the arrangement which I have just outlined, during the course of her oral evidence under cross-examination Patricia said that the house property was now legally in the name of Andrew John Griffiths, who is the husband of Patricia's daughter Jodie. Patricia said that Jodie and her husband had borrowed money against the security of that house property, but that when they had repaid that borrowing, Jodie and Andrew would transfer the property to Patricia's three daughters. 31 Patricia also entered into a deed of agreement dated 20 February 2007, between herself, her daughter Leanne and Andrew John Griffiths, which evidences Patricia's beneficial ownership of that property. 32 As I have already observed, the evidence in regard to this residential property at Molong was most confused. 33 No evidence was placed before the Court by Patricia concerning the value of the property at Molong in which she resides. However, for the purposes of the transfer of that property to Andrew Griffiths, it was valued at $250,000, apparently a valuation having been obtained in that amount. 34 The Defendant placed in evidence a market appraisal of that property, dated 14 July 2008, disclosing a value of between $295,000, and $325,000. 35 According to Patricia her only assets are a Magna motor vehicle, to which an estimated value of $7,000 was ascribed; an Arab stallion, having an estimated value of $500; and furniture which was said to be mostly about 23 years old, and to which no value was ascribed. 36 Patricia suffers various health problems which have resulted in her being in receipt of a disability pension. She said that she was in very poor health, and was currently having injections in her spine. She said that she had lost her drivers licence as a result of falling asleep whilst driving. However, it would appear that she has subsequently regained that licence. 37 Patricia's income consists of the foregoing disability pension, in an amount which was stated in her affidavit evidence to be $487 a fortnight, together with rent of $280 a fortnight received in respect to the cottage of which Patricia holds the head lease (under which she pays to the owner rent of $1 a year). It was Patricia's evidence that in 2020 the ownership of the cottage will revert to the purchaser of the main block of the subdivided property, and that thus Patricia's income from this source will come to an end. Patricia also said in her affidavit evidence that, as well as a Visa card debt of about $8400, she was indebted to her daughter Jodie in respect to business debts totalling $17,000, for which Jodie had assumed responsibility after the death of Patricia's husband. 38 It was Patricia's affidavit evidence that she resided in the Molong property rent free, upon the understanding that she would be responsible for and would pay all outgoings and the cost of all maintenance of the structure of the house, yards, fences, and driveways. 39 Under cross-examination, it emerged that the foregoing information given by Patricia in her affidavit evidence concerning her financial and material circumstances was neither accurate nor complete. 40 Quite apart from the confusing evidence regarding the property at Molong in which Patricia resides, and in respect of which she is the beneficial owner, I have already made reference to Patricia's income by way of a disability pension. In her affidavit evidence, she stated that that pension was in an amount of $487 a fortnight. She was quite prepared to allow the Court to proceed to decide her claim upon that basis. However, it emerged under cross-examination that Patricia's disability pension is presently more than $50 a fortnight in excess of that amount, being in a present amount of $538 a fortnight. When questioned about this increase under cross-examination, Patricia responded that if she had been asked she would have disclosed her pension increases. Nevertheless, Patricia was quite content to allow the Court to proceed upon the basis that her disability pension was in the lesser amount, and it was only when she was asked specific questions upon this topic under cross-examination that the accurate figure emerged. 41 I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily. I do not consider the response of Patricia that, if she had been asked, she would have given the correct amount, as being in any way appropriate to the fulfilment of her obligation in this regard. 42 Beverley, who is unmarried (but resides with her partner, Trish Spears), is a community registered nurse by profession. She is presently working at Concord Hospital, and is currently entitled to a gross salary of $1,715 a fortnight. 43 Beverley's partner, Ms Spears, is also a registered nurse. However, due to severe injuries Ms Spears is in receipt of workers compensation benefits in an amount of $597 a fortnight. The total household income of Beverley and her partner is $2,313 a fortnight. Beverley and her partner conjointly own their residence at 72 King Street, Ashbury, the value of which is estimated to be in the order of $714,000. There is a mortgage debt outstanding on the property in an amount of about $112,000, which Beverley and her partner are repaying at the rate of $820 a month. Beverley until March 2008, owned an investment property at Orange, which she sold for $220,000. After payment of an outstanding mortgage debt and conveyancing costs she received a net amount of about $190,000. 44 Beverley owns a Subaru Imprezza motor vehicle, having an estimated value of about $22,000. She also has superannuation benefits to a value of about $67,000 and is a participant in an AXA Retirement Security Plan having a value of about $23,000. She holds MLC whole of life insurance policies, having a combined value of $86,000. Apart from various household contents, Beverley's only other significant asset consists of shares in IAG Limited, having a present value of about $4,900. Beverley's partner owns a one half share in the house property at Ashbury, a 1990 Subaru Brumby utility motor vehicle (having an estimated value of about $6,000), half the contents of their residence, two banks accounts (having negligible balances) and superannuation benefits with HESTA and State First (to which a value of about $25,000 was ascribed). 45 Beverley and her partner live upon their combined incomes. Their expenses each month are about the same as the amount of their incomes. 46 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff. 47 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 48 Each of Edward and Patricia, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings. It should also be recognised that Beverley, the chief chosen object of the testamentary beneficence of the Deceased, is also an eligible person within the same paragraph of the foregoing definition. There are no other eligible persons in relation to the Deceased. 49 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 - 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for of his or her proper maintenance.

Foye v Foye

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Judgment (12 paragraphs)

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