Hill v Buckley [2008] NSWSC 1374 | Case summary

4878/07 - HILL v BUCKLEY JUDGMENT 1 HIS HONOUR: These are proceedings for an order under s 7 of the Family Provision Act 1982 (the Act) brought by a person who for a time was a stepdaughter of the testator. She was the daughter of the person to whom the testator was married between 1985 and 2006. The plaintiff thus claims to be a person within class (d) of the definition of "eligible person" in s 6 of the Act. Because of that I need first to consider whether, having regard to all the circumstances of the case, there are factors which warrant the making of the application because that is what s 9 of the Act requires me to do. The Act says that the court shall refuse to proceed with the determination of the application if it is not satisfied of that factor. 2 The testator began living with the plaintiff's mother from 1982. The plaintiff was then nine or ten. The testator married the plaintiff's mother in 1985. They separated in January 2005 and their divorce became final on 15 June 2006. The testator died on 25 June 2006. 3 The plaintiff, who is now 36, moved out of her mother and the testator's home in 1991 when she was 19. She married her husband in 1995 and they have a child Lachlan who is now eight. The testator made his last will on 7 July 2005. He appointed the defendants, his sister and his brother, as his executors and gave them all his property. His assets were said for probate purposes to be worth some $498,000, the majority asset being his house at Merewether Heights. 4 The information that I have been given in this case is not as I would have wanted it, but it would seem that the net distributable estate was in the vicinity of $427,000. Probate was duly granted to the defendants on 19 September 2006 and there was a distribution of the estate to them for some reason or other in early 2007. 5 The plaintiff filed her summons on 3 October 2007. The plaintiff's case is that she is an eligible person and the factor warranting the making of the application was because she should be considered for almost all purposes as the testator's daughter. 6 The testator had no children of his own. He lived with the plaintiff's mother in a de facto relationship and then a de jure relationship. The plaintiff lived with him for ten years between the time she was about nine to the time she was about 19 as a member of the household. 7 Now, one of the problems I have in this case is that for some inexplicable reason, the plaintiff has provided me with only the bare minimum of information and has chosen not to give me the details that one would normally expect to see in this sort of case. She says that she was in a continued loving relationship with the testator during the time that they were living together and they were living together as a happy family and that she treated and looked to the testator as if he were her father. The affidavits that were filed by the testator's brother and sister deny that. Whilst they were not in a very good position to observe, what they did observe, they say, tells against the plaintiff being so close to the testator as she asserts. 8 Now, one would have thought that forensically when a litigant sees that her uncorroborated story is being contested, she would put together as much material as she possibly could by way of corroboration and by way of documents, such as birthday cards and letters, even a teddy bear she might have been given as a birthday present, but there is not one word of any of that. Some, but by no means all, of this is explained by it being in the testator's own home and was put in a box when the testator's effects were collected and, it would seem, were given to charity. 9 That was a very unpleasant part of the evidence because it would seem that shortly after the testator's death, the plaintiff requested the executors to let her have some items and yet they were disposed of to a charity with scant regard for the plaintiff's feelings. The evidence given by the female executrix as to this showed maliciousness and certainly did not assist her case. But, even putting aside the fact that that material was missing, there must have been, if they existed at all, materials of this nature in the plaintiff's possession and the plaintiff either threw them away, because those cards and letters were of absolutely no sentimental value to her at all, or they didn't exist, or for some reason or other, she is holding them back. 10 Furthermore, there is no evidence of any friends that may have been calling at the house or acquaintances of the plaintiff's mother who would have seen them act together and so it came very close to a situation where I did not think that the evidence was sufficiently strong to show that the plaintiff was a loving and affectionate quasi-daughter of the testator. However, there was not that much cross-examination on the point. The brother and sister of the testator were not really in a position to assess the relationship. The absence of some of the material could have been explained (though it wasn't) by the fact of the divorce between the plaintiff's mother and the testator in which some materials could have been destroyed. 11 There was some evidence about the wedding of the plaintiff and her husband in 1995. Some of the evidence was a bit confusing and it couldn't all be correct. It certainly was the case that the testator and the plaintiff's mother together issued the invitations to the wedding. The wedding was in the garden of the home of the plaintiff's mother and the testator. The testator was present. It is said by one deponent that the testator did not usher the plaintiff down the aisle. It must have been a notional aisle. It is said by another that the mother gave the plaintiff away and some other deponent denies that. But it would seem on the balance of probabilities, that the testator was there and he did take some part in the ceremony, but not a prominent part. 12 However, putting it all together, I think there is just enough evidence to get it over the barrier that the plaintiff was treated like a daughter and so there are factors warranting the making of the application. 13 I have said many times in the past, and I say it again now, that the court is always appalled at the very large fees that are charged by lawyers for running these cases yet finds that evidence which any lawyer would realize must go before the court, is denied to the court. This comes through in two aspects of this case. One, that to which I have already referred, that is, the lack of evidence of affection between the testator and the plaintiff; and the second, as to the means and assets of the plaintiff and her husband. 14 After about an hour and a quarter's discussion, to use a neutral word, between myself and Mr A Maroya, who appeared for the plaintiff, the court finally got some shadowy account of what were the plaintiff's assets and liabilities. We should not have to waste time doing it this way. A properly prepared case under the Act sets out in plain detail, brought up-to-date as at the hearing, the plaintiff's statement of assets, her statement of liabilities and her statement of income. 15 It would seem, and I use those words advisedly, that the plaintiff and her husband own a home in the outer suburbs of Newcastle, in which they have an equity of up to $52,000 and they have mortgages which, if they were called up and the assets were sold, they could not meet. However, both until recently were in employment and their combined wages were able to meet the mortgages and whilst that continues they will be able to deal with their financial situation and still live quite a pleasant life. 16 However, the plaintiff recently has had to give up work for health reasons. She anticipates going back to work in the New Year. However, she is a woman who appears to have no qualifications. Her job is a salary packaging consultant and in the present economic climate, there must be some doubt as to whether she will go back to employment in that field and one just does not know what other field she can work in. Accordingly, if it is only her husband's income that is going to have to pay out the mortgage, she is going to be in some trouble. 17 The plaintiff says that because of the borderline financial position that she and her husband are in, that it would be appropriate for a wise and just testator considering all his obligations, to have made provision for her in his will. In particular, he would have made some provision to give her a buffer against the problems that there may be in meeting the mortgages and to take account of the fact that she has to educate her son Lachlan. 18 Whilst the second matter is a matter one takes into account, it does not appear to me that in the instant case it is a matter of very great moment. There is no indication that there are going to be significant higher education expenses in the future and the education of one or two children to the School Certificate level, whilst, of course, causes some expense, is no extraordinary expense for families. The present evidence is that the child goes to the local State school and there is no material to suggest that he is doing so well at school that he is a possibility for having to go to tertiary education. Had that material been available, it could have been provided to the court. Either it was not available or not relevant or no-one thought that the court should have it. However, the factor that the plaintiff is in a position to meet her commitments at the moment, but if there is a misfortune she may not be in the future, is a significant matter. 19 Whilst I am on the question of the relevance of the son Lachlan, there is one significant piece of evidence to which I should refer. The plaintiff wrote to the testator a note which was probably written about Christmas 2005 after the testator had sent Lachlan a present. She wrote to him a letter that: "I ask as Lachlan's Mum however that you please respect my wishes and not send any more gifts as this is just upsetting and confusing to him. We no longer live at ... as we moved just prior to Christmas. Thank you in advance, Michelle." 20 That was a nasty letter and it was, according to the plaintiff's frank admission, written to upset the testator. It was written at a time when emotions were high because the evidence tends to suggest that the testator was very upset about his separation from the plaintiff's mother and doubtless there were some upsets and emotional feelings on the other side as well. She says in paragraph 45 of her affidavit of 2 October 2007 that in July 2005 she spoke to the testator who told her: "You know I got a shock when your mum moved out; you know how close I was to her. I also know how close you and she are. We need to get together and talk some sense into her and get her to come back." The plaintiff then said: "You know I can't just do that" and the testator said: "I don't understand why you are saying that; I would have thought you wanted her and I to be together" and the plaintiff said: "Well, of course I do, but it is more important that you both be happy, rather than living together and unhappy" and then she said that there was an interruption of their contact. However, she says that for Lachlan's birthday in 2006 the testator was invited to a celebration and did attend and Mr Maroya would have me believe that the rift was mended. 21 It is very hard to know what one makes of that episode. I would not have thought that the evidence is sufficiently strong as it has been left for me to show that the rift was mended. 22 The will was made, as I have said, on 7 July 2005 and that was at the time of the conversation that I have related from paragraph 45 of the plaintiff's affidavit. The previous will provided that the plaintiff's mother receive the whole estate or if she predeceased the testator that the plaintiff would receive the whole of the estate. Now, of course, that will would have gone with the divorce anyhow, but it seems to me that it does have significance that but for the events of 2005, the testator did have the plaintiff in strong contemplation as a person who he considered should be the recipient of his benefaction. 23 It has been put to me by Ms V McWilliam, who appeared for the defendants, that White J in Mann v Starkey [2008] NSWSC 263 at [47] considered that provisions in an earlier will were of little relevance in making a determination under the Act. I think, with respect, his Honour was not intending to make a general statement about the relevance of previous wills, merely that in that case the previous wills were of no assistance to him because the testator had been a person who had reconsidered his testamentary intentions more than once in the recent past. I do believe it is relevant in the instant case because the change of wills was made shortly after the separation and about the same time as the conversation I have related. This seems to suggest that but for what might have been temporary circumstances, the testator would have had the plaintiff in mind as a recipient of his benefaction. 24 As I have held, the plaintiff has already gotten over the barrier of factors warranting the application to be made. Accordingly, I must now approach the matter in accordance with the decision of the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201, 209-210 where the Judges of the High Court said that one must approach these cases in a two stage process. First, determining whether the provision, if any, made in the will for the plaintiff was inadequate; and, secondly, if it was, what was the provision that the testator should have made. 25 In the first stage of the process, as the testator left the plaintiff absolutely nothing, it is clear that the provision for her was inadequate, she being, as I have said, a person who warranted his benefaction as a quasi-daughter and as a person whom he recognised as an object of his benefaction were it not for the then emotional trauma. 26 The second question is what was the provision that he should have made. The Court of Appeal recently considered the approach to this sort of question in Foley v Ellis [2008] NSWCA 288, a decision given on 6 November 2008 by a court consisting of Beazley and Basten JJA and Sackville AJA. 27 Sackville AJA, who gave the leading judgment, said at [90] that when one is considering the adequacy of any testamentary provision and the amount of such testamentary provision, one cannot do that in isolation from the resources of the testator and the needs of other claims on the testator's bounty. Those claims are to include beneficiaries entitled to a share in the deceased's estate, whether or not they themselves have made a claim under the Act. 28 In the instant case the ex-wife, the plaintiff's mother, knew about this application and has made no claim. The other claimants are the brother and sister of the testator. Both of them are pensioners with virtually no assets. As I have said, a distribution of about $213,000 was made to each of them. 29 There is another nasty piece of evidence. That is the sister kept the testator's car and she doesn't drive. She just kept it in the garage. One would have thought that a normal human being would have either sold it or alternatively given it to someone who needed it. But, putting that aside, the sister used her $213,000 to give around $70,000 to $90,000 to her children and kept the other $125,000 as a nest egg because she reasonably says that she needs to have something behind her in case her health fails because she does not want to become a victim of the public health system. 30 The brother does not give as much detailed evidence, but he too shows that he is a pensioner with very little by way of assets and that he could well do with the capital sum. There has been some cross-examination of the sister as to how the capital sum has affected her pension. It evidently has to a degree, but has not affected her claim for medical and ancillary benefits. At one stage it seemed from her evidence that she had done some sort of deal with one of her children to buy provision for her as a sort of granny flat in one of her children's homes. However, when the evidence was clarified it would appear that one of her sons-in-law said to her that she was able to have her own bedroom and ensuite facilities for as long as she liked though it would seem that the money that she did give that daughter and son-in-law was going to be used to renovate the home, inter alia, the part where she was living. 31 The brother and sister are not rich people and it is reasonable that they do have a sum of $100,000 or so as a nest egg to provide for their health care. The estate is $427,000. It is strange that it was distributed to the beneficiaries before the time for the making of applications under the Act was closed and if there are problems caused by that early distribution, no-one can be blamed except those on the defendants' side of the record. 32 Each solicitor has put in his estimate of fees of about $30,000 (I won't make any comment about that) which, if one deducts from $427,000, gives an estate of $367,000. 33 I am very much concerned at the paucity of the evidence given by the plaintiff. She could have given me far more details in a far more digestible form than she did, but one of the problems about being a Judge is that one has got to put up with the inadequacy of cases if there is sufficient evidence to make a finding for a party and just do the best one can. 34 Mr Maroya in his long address referred me to a series of one liners from various unreported and reported decisions including one from the High Court of Australia. With great respect, those one liners were of very little value. One has got to look at each case on its circumstances and decide it and not over-emphasise or, indeed, under-emphasise any particular factor. 35 It seems to me, putting all things together, that a wise and just testator should have made provision by providing the plaintiff with one third of his estate so that the plaintiff, the brother and the sister each take one third of the estate. 36 Accordingly, the court directs that the plaintiff receive a benefaction of one third of the residue of the estate. The costs of the plaintiff and the defendants are to be paid out of the estate. Otherwise usual order.

Hill v Buckley

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (3)

Cited By (3)