Family provision and maintenance - Application by grandchildren - Father of applicants predeceasing testatrix - Will leaving estate to two surviving children of testatrix - Note left by testatrix explaining absence of provision for grandchildren - Grandchildren entitled to share

Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(d)

Approximately one-third of estate awarded to plaintiffs, being one quarter to first plaintiff and one twelfth to second plaintiff

Adamour (1989) 97 FLR 410

Anderson v Teboneras [1990] VicRp 47; [1990] VR 527

Bondelmonte v Blanckensee [1989] WAR 305

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Davey v Fairhead & Ors, unreported; SCt of WA (Walsh J); Library No 960088; 1 March 1996

Dobra v Brennan (1999) WASC 98

Donaldson v Harvey & Ors, unreported; SCt of WA (Parker J); Library No 970303; 17 June 1997

Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490

In re Allen: Allen v Manchester (1921) 41 NZLR 218

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566

Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 9 April 1999

Pead v Perpetual Trustees, unreported; SCt of WA (Wheeler J); Library No 90077; 19 February 1999

Pontifical Society for the Propagation of the Faith v Seales [1962] HCA 19; (1962) 107 CLR 9

Randell v Randell (1999) WASC 146

Robinson v Sorgiovanni (1999) WASC 53

Stanley & Ors v Kirby & Ors (1998) WASC 17

Stott v Cook (1960) 33 ALJR 447

Young v Young, unreported; SCt of WA (Malcolm CJ); Library No 7626; 26 April 1989

1 HEENAN J: The plaintiffs apply to the Court for a share in the estate of their late paternal grandmother, Dorothy Jean Kitson, who died on 23 April 1997 at the age of 80 years. The plaintiffs' father had died on 6 June 1989, almost eight years before their grandmother, and their mother has since remarried. Their grandmother bequeathed her estate to the defendants, her two surviving children. The plaintiffs claim that in doing so she left them without adequate provision for proper maintenance, support, education or advancement in life. They seek relief pursuant to s 7(1)(d) of the Inheritance (Family and Dependants Provision) Act 1972 (WA).

2 The testatrix was born on 13 February 1917. She had a daughter and three sons, one of whom died in infancy. The daughter, who is the defendant Zelda Jean Kitson, was born on 14 July 1938. The plaintiffs' father, Harry Charles Frederick Kitson, was the eldest of the sons. He was born on 26 April 1942. The other surviving son, who is the defendant Michael Arthur Kitson, was born on 21 May 1949.

3 During 1957 the testatrix and her husband bought a property of about 1.4 ha (3 3/4 acres) at Maddington. It was known to the family as "the Myola property". It seems that her husband died about 20 years ago, after spending some time in a nursing home. The testatrix did not remarry. She resided on the property until she died. With limited means of her own she used it as a hobby farm, caring for a small number of animals including sheep, cattle and horses. Also she leased a nearby paddock of 3.6 ha (9 acres) on which she grew oaten hay crops for the animals. The testatrix always had been an outdoors person and she was extremely independent. After the death of her husband she fed and watered the animals herself and did most of the other work involved. Nevertheless, from about her late sixties onwards she needed more assistance. While they were living on the Myola property each of her three children helped their parents, and later the testatrix alone, to manage it. After they were married the two sons frequently visited her and continued to help with the various chores, but their sister Zelda provided most of the help. Zelda lived on the property until 1975 when she bought a house of her own at Kenwick, a mile or so away, and went to live there. Then she visited her mother frequently, having a meal with her on most evenings and taking her shopping on Saturday mornings. She returned to live with her mother in November 1994 and has resided on the Myola property ever since. She has never married.

4 In 1988 Michael made a videotape film of the Myola property. The film was tendered in evidence and I have watched it. It takes about 12 minutes to play and it provides some of idea of the size of the property and the external appearance of the buildings and other improvements which were there at the time. It is of no other relevance.

5 Harry Kitson, the father of the plaintiffs, was married in November 1964. The plaintiffs are his only children, Bradley having been born on 6 August 1968 and Jody on 22 February 1972. It is common ground that after he was married Harry continued to have a relationship with the testatrix which was at least reasonably good. He provided her with support of a practical nature and, in turn, after she and Zelda had done their Saturday morning shopping, they would regularly visit him and his family in their home at Wilson. But it seems that by the time of his death the testatrix was not pleased with Harry.

6 The evidence shows that in about 1976 Harry had a pool table and a swimming pool installed at his home. At or about the same time he purchased a cabin cruiser. In evidence Lynette Mary Sutcliffe, his widow, said that she and Harry paid $900, the price of the pool table, from their joint bank account and that she paid $2,500, the cost of the swimming pool, after borrowing that amount from the Australian Postal Institute. She went on to say that she repaid the full amount of the loan by taking a full-time job. As to the boat, Mrs Sutcliffe acknowledged that her late husband bought it with the assistance of a loan of $5,000 from the testatrix and that he sold it from the Myola property in approximately 1980. She went on to testify that the full sale price of $5,000 was paid to the testatrix and that Harry did not receive any part of it.

7 In or about 1985 the testatrix sold a steer or some steers and gave Harry all or part of the proceeds from the sale. It seems that the amount was either $680 or $950 and that there was an understanding that if ever the testatrix needed the money she could ask for it back. As it happened, in or about April 1989 Harry developed bowel cancer. He knew, it seems, that he had only a short time to live and, according to Zelda, he told her and the testatrix that he had made no provision for either of them in his will. He had left his entire estate to his wife. Shortly afterwards he was admitted to Royal Perth Hospital. While he was there the testatrix and Zelda visited him. The former asked him to repay the money. Harry replied that he would do so. Later, when speaking to his wife alone, he told her to arrange for the money to be repaid from his estate saying, "If it's the last thing you do make sure you give her the money." He died two days afterwards. After two months had passed, in the presence of Zelda, Mrs Sutcliffe offered to give the testatrix a cheque for repayment of the money, but the latter declined the offer saying, "Don't worry about it".

8 By her will dated 6 July 1989, a month after Harry's death, the testatrix appointed Michael to be her executor and left the Myola property to him and Zelda in equal shares. The estimated value of that property at the time of her death was $400,000. The other assets in her estate comprised a transportable house on the property, worth about $30,000, a total of about $45,000 in bank and credit society accounts, 400 Commonwealth Bank shares and chattels worth about $1,200. The Myola property, including the transportable house, now is valued at $442,000. By her will the testatrix gave the moneys in the various accounts to Zelda and divided the chattels and stock between her and Michael.

9 It seems that the omission of the plaintiffs from her will was the result of considerable thought on the part of the testatrix. Zelda testified that after Harry's death she found a note in her mother's handwriting which set out an explanation as to why the plaintiffs were not included in her will. Thinking that her mother did not need it, she screwed up the note and threw it out. Then, after the plaintiffs had commenced these proceedings, she mentioned the matter to Michael and he suggested that perhaps their mother had made some further notes. So it was that on 8 May 1998, while looking through some papers in a basket underneath the television set in the house, Zelda came across a sheet of paper on which her mother had written the following:

Why Hary's family are left out of my will was because, Harry had his part of, the Myola property road property when he was a live, that being,

1/ steer I sold in his name, Nine hundred and 50 dollars. when I asked him for some of the Money, to buy a cow he said he couldn't pay as he had now money.

That is why Hary's family are not mentioned in my will as thier father never paid his dets to me. And I've been a battler all my life, and leave no dets I hope.

The contents of the document are not evidence of the facts they assert (see Hughes v National Trustees Executors and Agency Company of Australasia [1979] HCA 2; (1979) 143 CLR 134 at 137 per Barwick CJ). In any event, the evidence of Mrs Sutcliffe has satisfied me that the testatrix did not contribute any money towards the cost of either the pool table or the swimming pool and that the loan of $5,000 for purchase of the cabin cruiser was repaid in full. Further, the evidence of Zelda confirms that of Mrs Sutcliffe to the effect that Harry not only had intended that the moneys from the sale of the steer or steers should be repaid but also had directed his wife to make the repayment. Finally, the moneys which the testatrix claimed she had given Harry could not reasonably have been regarded as enough to constitute "his part", as she described it in the note, of the Myola property.

10 Bearing in mind the circumstances in which the testatrix wrote the note, I am satisfied that she was uneasy about leaving Harry's family out of her will and felt that she should give some explanation for doing so. I find that her unfavourable assessment of Harry was not justified and infer that, but for that assessment, she would have provided for his children in her will. Of course, that does not mean that this application necessarily should be granted. To be successful a plaintiff must show that he or she is in "need" of provision from the estate (see the observations of Murphy J in Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 504).

11 The plaintiffs' case is that, before and after their father's death they had a normal caring loving relationship with the testatrix, that their financial circumstances are typical of struggling young people and that they have "the bread and butter of life" but not "a little of the cheese or jam" that a wise and just grandmother would provide if circumstances permit (see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 135 per Fullagar and Menzies JJ). On behalf of the defendants it is said that the application should fail because the omission of the plaintiffs from the will was appropriate in the circumstances prevailing when the testatrix died.

12 In deciding whether provision should have been made for the plaintiffs the Court is required to have regard, among other things, to the plaintiffs' financial position and to the totality of the relationship between them and their grandmother and the relationship between the defendants and their mother (see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 - 210 per Mason CJ, Deane and McHugh JJ). I shall turn to consider those matters now.

13 Jody Marie Franks, the younger of the plaintiffs, began working part-time as a carer at Swan Cottage Homes soon after her fifteenth birthday. Two years later she completed year 12 at high school. She has worked full-time in the same capacity since then. In 1996, when she was 24 years old, she left home and went to live with Arnold Franks in his house at Beckenham. They have lived there ever since. Early in 1997 Mr Franks left Telstra, where he had been employed for some seven years and was earning more than $30,000 per year. He went into business on his own as a landscape gardener. In May 1997, about a month after the testatrix died, they were married. In September of the same year the Beckenham property was transferred into their joint names. At the time of her grandmother's death Jody was earning a fortnightly wage of approximately $750 and, because her husband had recently gone into business on his own, his earnings were meagre. Her only substantial asset at that time was her car which was worth about $2,000.

14 Because they cannot afford it Jody and her husband have not been away on a holiday during the three years since their honeymoon. Presently she earns $815 per fortnight. They hope that before long his business will grow to the extent that he will be able to support the two of them so that they can start a family. Meanwhile their main asset is their home which is worth approximately $108,000 and is subject to a mortgage of approximately $53,000. During the last three years they have been unable to reduce the principal debt. In or about June 1997 she bought a Ford Laser sedan for $22,000. Having been credited with $2,000 for trading in her old car she paid the balance by borrowing $20,000 from her stepfather. She still owes $15,650 in respect of that loan. She and her husband also hold 1200 shares in Telstra. Thus, although at the time of her grandmother's death she was an adult in gainful employment, in good health and about to be married, her financial situation was modest indeed and her future far from assured. Since then she has acquired a new car and a half share in a home, but she has large debts with uncertain prospects of being able to repay them in the foreseeable future. In my opinion, when her grandmother died Jody had a clear need for provision from the estate.

15 Bradley John Kitson, the other plaintiff, left school in year 10, when he was 15 years old, and worked for the next four years as a truckie's offsider. Then he ran his own lawnmowing business for about 12 months and spent the next 18 months or thereabouts servicing cars before he became a plasterer's labourer. In December 1990, when he was 22 years old, he began living with Kathryn Burchnell. Shortly afterwards he established the plastering business which he has since carried on in partnership with her under the name of "Majestic Plasterers". They were married on 18 March 1995 and they have two boys who are respectively 6 and 3 years old. Throughout their time together his wife has been a director of two private companies established by her father for the conduct of a paving business. She has been employed part-time in that business, performing secretarial duties on three or four days a week, as well as doing the bookkeeping for her husband's business. According to my understanding of the evidence, at the time of his grandmother's death Bradley and his wife derived an annual income of about $45,000 from his plastering business. She also received a net wage of approximately $15,500 from her employment in the paving business. In addition, on 13 September 1996 she received a dividend of $4,000 from one of her father's two companies.

16 When his grandmother died Bradley and his wife were the joint owners of their home at Whiteman Street, Thornlie. It was worth about $107,000 and was subject to a substantial mortgage. His wife and her brother each had a half-share in a residential property at Huntingdale which they rented out. The property had a market value of approximately $100,000 and was subject to a mortgage of $76,000. Mrs Kitson also had a fifth share in the paving business. Although the share has a book value of $100,000, she has not paid for it and her loan account stands at $42,000. The true value of her share is problematical, depending as it does on the value of the goodwill attaching to her father's participation in the business.

17 On the evidence available it is difficult to obtain a clear picture of Bradley's true financial position when his grandmother died, but I am satisfied that he and his wife were comfortably off. Between them they were receiving two substantial incomes, they had a well established home and, as well as two motor vehicles, they were the owners of one business and Mrs Kitson had a fifth share in another business. Since then their situation has continued to improve. In November 1997 they sold the house at Thornlie and acquired their present home in Maddington Road, Maddington. That home now is worth about $150,000 and is subject to a mortgage of $122,000. The house at Huntingdale was sold in February 1999 and Mrs Kitson received $5,000 which was applied to improvements of the matrimonial home. Presently Bradley owns a Toyota Landcruiser, which is subject to a debt of approximately $7,000, a 1967 Volkswagen sedan which is worth $2,000, as well as trailers and tools of trade which are worth approximately $850. His taxable income now is about $35,000, approximately the same as that of his wife. Their older child now attends a private school. Of course the soundness of their financial situation always has depended a great deal upon his being able to perform the demanding physical work of a plasterer for long hours throughout a six day week. To that extent he also had a need for provision from his grandmother's estate when she died and the need persists.

18 The relationship between the plaintiffs and their grandmother was the subject of a good deal of conflicting evidence, but I am left with the impression that there was nothing extraordinary about it. I am satisfied that from time to time they helped their father with some of the work which he did on the Myola property. After he died they visited the property much less frequently, although they saw their grandmother occasionally. It does not seem that they helped or supported her to any great extent, but on the other hand there does not appear to have been any breach in their relationship with her or ill feeling by her towards them. Certainly the evidence does not suggest that there was anything about their character or conduct such as to disentitle either of them to the benefit of an order (see s 6(3) of the Act).

19 The defendant Zelda Jean Kitson is 61 years old. After working for 42 years as an employee of Telstra, she retired in December 1997. At the time of her mother's death she owned the property at Kenwick and a holiday unit at Rockingham which she values at approximately $100,000 and $65,000 respectively. She had a motor vehicle worth $5,000, shares worth $6,630 and $25,310 in bank accounts. Her salary from Telstra was $40,683 gross per year from which she received $495.25 net per week. Upon her retirement she received a lump sum payment of $90,000. Presently she has an annual income of about $35,000, including $424,84 net per week by way of superannuation. Her real estate is unencumbered. Because the Kenwick house is old, she has not rented it. She acknowledges that her situation is "comfortable". Her health is good and she expects to live for a further 20 years or so.

20 Zelda's relationship with the testatrix was particularly close. She was her mother's main support and, in addition to living with and helping her on the Myola property, she accompanied her on holidays which included trips to New Zealand and Tasmania, travelling around Australia and touring the Canning Stock Route.

21 The defendant Michael Arthur Kitson is almost 51 years old. He was married during the early 1970's. He has two children, both boys, the older born on 5 April 1977 and the other on 28 August 1993. A fitter and joiner by trade he is now a science lecturer at a tertiary institution, a position which, it seems, he has held for the past 12 years or more. He intends to retire at the age of 60 years. When his mother died he and his wife were the joint owners of their home at Murdoch, his half share being worth $120,000. He had other assets worth about $13,000 as well as a superannuation entitlement. His annual salary was $48,881 in respect of which he received $630 net per week. He owed $3,500 on a personal loan. Since then his annual salary has increased to $51,150 from which he receives $648 net per week. The value of his assets has increased by more than $11,000 and his personal loan has been reduced to $2,000. His wife and younger son are almost entirely dependent upon him. David, his older son, is unemployed, living at home and, although receiving some form of social security payment, is still partially dependent upon him. If he were to retire at 60 years of age Michael would be entitled to a lump sum of about $220,000 to $250,000 by way of superannuation. However, as he has pointed out in par 9 of his affidavit of 6 November 1998, he has less than 10 years working life ahead of him whereas each of the plaintiffs has about 30 years or more.

22 The evidence shows that throughout his mother's life Michael saw her on a regular basis and, although Zelda mainly provided the assistance which she required, he helped out on occasions. His relationship with the testatrix, although not as close as that of Zelda, was much closer than that of the plaintiffs, particularly after Harry's death.

23 I have come to the view that when the testatrix died Jody was "struggling", whilst the financial position of her brother Bradley and of each of the defendants was "comfortable". Both of the defendants had the security of superannuation, but Bradley was well paid and so was his wife. On the other hand Bradley's income depended very much upon his continued ability to perform the hard physical work involved in his occupation. He testified that, being "a pretty uneducated person" himself, he wanted money to educate his children and, although he had not really thought much about it, to add to his own education in some way.

24 It has long been established that in exercising the power given by a statutory provision such as that upon which the plaintiffs rely the Court is not entitled to re-write the will in accordance with its own ideas of fairness or justice (per Gibbs J in Hughes v National Trustees Executors and Agency Company of Australasia Limited (supra) at 146). In the case of claimants who, like the plaintiffs are able-bodied adult grandchildren, often there will be no need for the Court to intervene. Nevertheless, in my view, despite her stated belief as to the shortcomings of their father, a wise and just grandmother in the position of the testatrix at the time of her death would have taken the view that her granddaughter Jody and, to a lesser extent, her grandson Bradley were in need of further provision for their proper support, education or advancement in life, if not for their proper maintenance. I am satisfied that, by leaving the plaintiffs out of her will, the testatrix did not make adequate provision in respect of either of them. Bearing in mind the value of her estate and the comparatively modest needs of her own children, she should have left for the plaintiffs the share which she would have left for their father had he not predeceased her. That share, I believe, would have been not less than one-third of the Myola property. For present purposes at least, I regard the transportable house as being part of that property.

25 After taking into account the present situation of each of the parties to these proceedings, I am satisfied that Jody has a much greater need than her brother for provision from the estate. I have decided that the appropriate provision for her is one-quarter and for Bradley one-twelfth of the Myola property, leaving the remaining two-thirds of that property to the defendants in equal shares and not disturbing the other provisions which the testatrix made for the defendants in her will.

26 A copy of these reasons will be made available to counsel before formal publication in order that they might produce an agreed minute of the appropriate orders.