Havord v Havord

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Kenneth William Havord, who died on 27 August 2000 aged eighty-three years. He was survived by his two sons, who are the plaintiff and defendant in the proceedings. 2 The deceased made his last will on 11 February 2000. Under that will he appointed the defendant his executor and he gave him half of the residue of his estate; a further quarter share went to the defendant's first wife, Robyn Havord, and the remaining quarter share was shared equally between the three children of the defendant and his first wife. They are Lee Havord, Bruce Havord and Kelly Havord. 3 The assets in the estate have been realised and, after allowing for estimated taxation liabilities and the defendant's legal costs of $20,000, there is a net estate of $660,000. The plaintiff's costs are estimated at $21,764. 4 I will deal with a little of the history of the family. The defendant was born in March 1946 and the plaintiff in September 1955. They grew up with their parents. According to the evidence the situation at home was not always happy. The plaintiff, for instance, remembers that before his years as a teenager things were generally happy but there were arguments between his parents. The defendant left home in about 1964 to go to teachers college. He apparently returned in 1966. There was a breakdown of the relationship between the defendant and his father for about five years. 5 Things also were not well for the plaintiff in that in 1972, when the plaintiff was then aged sixteen, he and the testator had a physical fight, arguing over the loudness of music at home. Things apparently do not change. 6 The plaintiff in 1975 left home and started studying for degrees in geology which he eventually obtained when he lived at St Paul's College. In 1978 he completed a Bachelor of Science. It was in 1986 that the plaintiff and the defendant's mother died. After this there were a number of wills executed by the deceased. 7 In August 1986 he executed a will which gave five per cent of his estate to the defendant and divided the residue between the defendant, the plaintiff and his grandchildren. In 1987 there was a will leaving $30,000 to the defendant and dividing the residue between the defendant, the plaintiff and the three named grandchildren. 8 In 1988 there was a visit by the plaintiff to his father. The plaintiff at that stage had moved to Brisbane and was working there and he came down at Easter. I will return to the detail of the dispute later but on the Monday morning, when the plaintiff was preparing to leave for home, the deceased told him to get out of the house and never to come back. 9 In May 1988 there was a further will leaving $30,000 to the defendant and leaving the residue between the defendant, his daughter-in-law Robyn and the three named grandchildren. In May 1988 the deceased also issued a statement of reasons in which he described the reason why he left that will. As it touches on a later will, I will set out the detail of that. "The reason I exclude my younger son Peter John Havord from being one of my beneficiaries in my will is his consistent disobedience to my wishes, lasting over a period of many years, his verbal abuse of me and his physical violence, which on one occasion, necessitated my consulting my M.D. which resulted a medical certificate stating my injuries required an absence from my work for one week. At the present moment, Peter still holds the front door key to my house which he will not return to me.

To my elder son Kenneth William Havord and his family I say thank you for all those years of comfort, friendship and affection.

To my Grandchildren, the most wonderful people in the world, I say, be good children, and remember, I love you. Ken Havord (senior)." 10 In 1992 there was another will giving one-quarter of his estate to each of the three grandchildren and one-eighth to each of the defendant and the daughter-in-law, and there was a change in executors. In 1993 the defendant and his wife separated. 11 In February 2000 there was a will which is the present will in respect of which probate was granted. Shortly afterwards the defendant re-married and the deceased died in 2000. Probate was granted and the proceedings commenced within time. 12 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 p 209 it said: "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." 13 I turn to the plaintiff's situation. He is forty-seven years of age, he is not married and he has no dependants. He is in reasonably good health. At present he is employed by Santos as a geologist and is earning $85,500 per annum. That gives him a net sum of $4514 per month net. He lives in rented premises and the only evidence of expenses he has is his monthly rent which is in the order of $1020 per month. He does not have many assets. He has a thirteen-year-old car worth about $5000; he has furniture worth $49,900, he has cash assets of $4532 and he has shares worth $4140. He has superannuation worth $67,422, and he has no liabilities. There is no suggestion in this case that he has either contributed to the estate or received benefits from the deceased. 14 The question of the relationship with the deceased is one which has occupied some evidence. There was an argument with the deceased when he was sixteen years of age when he was told to leave, but did not. Obviously, he and the deceased got over that and they continued their relationship. The other matter was in 1998 and was more serious. The plaintiff did not have any contact with the deceased between that time and the date of his death. 15 The circumstances as recounted by the plaintiff really show irrational behaviour on the part of the deceased and I am prepared to accept what he says as the truth. As I have said, there was no contact for some years before the death of the deceased. Shortly before the death the plaintiff spoke to his brother and he says that he advised him not to make contact with the deceased because the deceased still felt very bitter about the plaintiff. That is not accepted by the defendant. The two brothers are at issue on the matter. I think it might be a perception in conversations that makes their stories different. I am prepared to accept the plaintiff that he had the impression that it was inappropriate for him to contact his father. He did not do so and his father died. 16 The question is whether, considering this break of some twelve years, it is appropriate that provision be made for the plaintiff. I have dealt with the authorities and I have dealt with them on a number of occasions and I will not repeat that review of the authorities. They may be seen, for example, in Porritt v Maguire [2002] NSWSC 115at paras 41 to 46. 17 Looking at the situation in the present case, the evidence before me does not suggest that the cause of separation was as a result of anything that the plaintiff had done. It was only for a period of some twelve years out of the total period of forty-seven years with which we are concerned. 18 The other thing about it is that the plaintiff, in a sense, kept in touch with the deceased by contact with his brother. This was a two-way matter, with his brother advising him of his father's situation. It is not as though the plaintiff took no interest in the deceased after the separation. Accordingly, although it has some effect on the overall assessment of the plaintiff's claim, it is certainly not conduct disentitling and I will not treat it as such. 19 It is necessary to have regard to the position of others having a claim on the bounty of the deceased. The first of those is the defendant. He is fifty-six years of age, married and gives no evidence of having any dependants. He is a deputy principal at the Blaxland High School and he earns $73,260 per annum. He has a number of assets. He lives in a property at Emu Plains in which he owns a forty per cent interest having a net value of $46,202. He has a sixty per cent interest with his wife in a property at 64 Lagoon Drive in which he has a net interest of $92,024. He has a 100 per cent interest in a property at 5 Annie Spence Close, Emu Plains in which his interest is $257,621. These figures come from the mid range of a range of valuations given in evidence and are preferable to the estimates provided by the defendant. He also has superannuation of $221,088. 20 It is not only, of course, the defendant the Court has to consider. There are the other residuary beneficiaries, one of which is Robyn Havord, who is the defendant's first wife. No evidence has been called on her behalf. The other beneficiaries are the three children of the defendant's first marriage. Apart from the fact they are the children of the first marriage, there has been no evidence called as to their circumstances or even their ages. Presumably they are adult by now. 21 In the circumstances, there is no evidence in respect of those persons. The Court can only assume they did not wish their financial or personal situation to be taken into account by the Court when it considers the plaintiff's application. The Court can also consider they do not want to put before the Court the nature of the relationship that they had with the deceased. 22 It is important to look at the way the plaintiff has been left without adequate and proper maintenance for education and advancement in life. In submissions it was suggested he was asset poor and therefore he ought to receive half of the estate. As I pointed out in argument, this is not the question that is before the Court. It is not the task of the Court to make what might be described by some beneficiaries as a fair will or a just will, or even to make a will which reflects what they believe the testator should have provided. 23 The jurisdiction of this Court is only to change the provisions of the will if it is demonstrated that an applicant has been left without adequate and proper provision for maintenance, education and advancement in life. In this case I am reminded of what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992 when his Honour said: "Sheller JA (Cripps JA agreeing) said: 'I must say that I find it extraordinary 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 sum 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 s9(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.'" 24 The plaintiff's affidavit evidence did not address what is commonly referred to as his needs. In cross-examination there was some suggestion that he was now saving for a home. He led no evidence of the cost of any accommodation that he would desire to acquire, nor did he lead any evidence of his borrowing capacity. Even though he is forty-seven years of age, I would have thought it is fairly obvious, given the level of his income, that he would have a fairly substantial borrowing capacity. 25 There was some cross-examination to suggest he may want a unit in the block he is presently living in Brisbane. However, that is a three-bedroom unit and is probably more than he needs and the indication is they are apparently selling for $250,000 to $300,000. The problem about looking at the evidence in this way is it is only just a throw-away suggestion and there is no proper evidence on which I can rely Accordingly it cannot be considered. 26 The plaintiff has had a period where he has had to re-locate from city to city in order to follow employment opportunities on about seven different occasions and in respect of which he has mostly had to bear the cost of the re-location. Over the recent years he has also been out of work for some years and has found it difficult to obtain work. Recently - I mean a year or two ago - he was demoted at Santos in the sense he was not given increases in salary that were made available to others. 27 He tells the Court he was substantially in debt and he is now simply back in the situation where he has no liabilities and has only been able to do that because of his full-time employment with Santos. That is obviously a desirable position for him to be in but that indicates the type of difficulties he has had in the past. 28 The question of his future is something of an unknown. I think I would accept that certainly the industry in which he is engaged goes through variations so far as employment of geologists is concerned. At the moment, if he reaches his retirement age he will, after work, have a sum which will cover him in his retirement. There was no effort in the evidence to try and present evidence of what he might actually need in his retirement and whether his superannuation would be sufficient to provide for him then. Accordingly, I cannot really base any decision on what his appropriate needs in respect of what might happen after his retirement. That is just one other area of no evidence. 29 One thing that does seem apparent is he may need some sort of money to provide for himself if he has a period of further unemployment following a change in his employment fortunes. He indicates that getting a further position may take some time. He is obviously able to get a position because he has been successful in changing positions a number of times. 30 In my view, it is appropriate that he should have a small legacy to provide him with some buffer. Accordingly, the orders I make are:

1. The plaintiff receive a legacy of $75,000 out of the estate of the deceased. 2. That such legacy be charged and borne by that half of the estate passing to Robyn Havord and her three children proportionately. 3. The plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis, be paid or retained out of the estate of the deceased. 4. The exhibits may be returned. **********

Last Modified: 03/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.