John Cuncliffe EDWARDS v Denise TERRY; Estate P. Edwards

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1830/02 John Cuncliffe EDWARDS v Denise TERRY JUDGMENT 1 MASTER: These proceedings brought under the State's Family Provision Act. The plaintiff seeks additional provision to be made for him pursuant to section 7 of the Family Provision Act out of his mother's estate. 2 The deceased died on 10th November 2001. Probate was granted on 27 December 2001 and these proceedings were commenced on 8 March 2002. The proceedings are brought within time. The defendant has filed formal affidavits and in the information contained in those affidavits there has been compliance with the rule in relation to identification notice to eligible persons. 3 The plaintiff is the only child of the deceased. Under the terms of her will, the deceased made the following legacies. The defendant was to receive five per cent of the estate; Royal Blind Society forty per cent; the Salvation Army forty per cent; the plaintiff fifteen per cent. Those provisions were to apply should the deceased's husband predecease her. That in fact happened and, as I understand it, the parents of the plaintiff made mutual wills on the 9th November 1998. As Mr Trebeck points out, the provision made for the plaintiff is a bequest that is by recognition only. In other words, at the time of executing her will the deceased was of the view that the plaintiff merited little recognition by her in her will, but she would make some provision for him merely as recognition of the nature of the relationship, that is, mother and son. 4 Central to much of the evidence today was the relationship of the plaintiff and his father. The plaintiff is 56 of years of age. He had a difficult school life. He was a slow learner and felt out of place at his first school. It was subsequently discovered he had dyslexia. His evidence is that when he moved to a state school he improved. The subjects that he did at Hunters Hill High were the technical subjects rather than the humanities. In those subjects he could compete with the other boys in the class and therefore, I infer from that he developed some level of self esteem. 5 To some extent the family had a privileged life-style in the 1950's. The evidence is that the father took the family on a world trip, which lasted about 12 months. It is evident that the parents were prepared to spare no expense on the plaintiff's education. He spent some time at Newington College and had things worked out I imagine the parents would have liked to have seen their son complete his education at Newington. That was not to be. Nevertheless, he still seemed to have been supported fully by both parents the rest of his school life. 6 On leaving school the plaintiff undertook an apprenticeship. He successfully completed that apprenticeship and for the greater part of his adult life worked in the field where he obtained his training. The evidence is that the father to all intents and purposes retired by the early 1980's. 7 The plaintiff's evidence is that to some degree he supported his parents, prior to the father retiring and since retiring. 8 The evidence in his affidavit of 23 April is that whilst he did not pay board he contributed to the household in that he did things around the house; he purchased food, he undertook repairs. It was readily conceded by the plaintiff both in the witness box and in his affidavits that he and his father had, not to put too finer point on it, a strained relationship. It would seem that existed from the time when the plaintiff was quite young. The impression that I have is that the plaintiff felt that there were times when the father was overly critical of either his interests or his business endeavours. There is evidence from the plaintiff, which is not contradicted, that the father criticised the way in which he conducted his business at various times and criticised his hobby and other people who had a like interest. 9 There is evidence that when the plaintiff was about 20 he had a relationship with a young woman who fell pregnant. Shortly thereafter the girl had an abortion. The plaintiff's evidence is that he subsequently found out that from the girl's parents that it was his father that instigated the termination of the pregnancy. This is also covered in some of the medical reports and reports to the Court. It seems that this had a significant impact on the plaintiff. 10 Nevertheless the plaintiff continued to live at home. The evidence is not only, that contributions were made by the plaintiff to the household but the parents readily accepted him remaining at home, and as Mr Trebeck has pointed out, that over many years the plaintiff's father was prepared to give him financial assistance. I accept Mr Trebeck's figures that throughout the 1970's and 1980's the parents, through the father, assisted the plaintiff to the extent of approximately $73,000. 11 That would seem to indicate that whilst there may have been a strained relationship between the father and the son nevertheless the father did have a great deal of affection, perhaps tainted with frustration, for his son. In many respects the family relationship does not seem to have been all that unusual. 12 Problems arose in the mid 1990's. An incident took place in 1996 in which there was an assault on the deceased and later on in 1997 an assault on the father. It is difficult in any circumstance to justify an assault on a parent, particularly when the parents are so old and the plaintiff in this case is a large man. You can understand the concern of the parents, but as Mr Horsley pointed out, there is not a history of violence of the plaintiff against his parents. There are two incidents in respect of the father and one incident in respect of the mother. Nevertheless, they took place. 13 An AVO was taken out against the plaintiff. The plaintiff at this time entered a rehabilitation unit, and although the evidence is unclear on this point, it seems he spent a period of 12 months in an effort to rehabilitate himself. That to me seems to indicate a number of things, one being a contrition about what happened. Unfortunately the relationship with his parents for all intents and purposes ceased at that point. He did not see his father again, and when he resumed contact with his mother she had developed dementia. 14 There is evidence that the AVO order taken out against the plaintiff in 1996/1997 was varied in 1999. It seems to me however though that the plaintiff did show affection towards the deceased and did try to care for her. 15 An application was made to the Guardianship Tribunal in relation to the management of her affairs, and he also raised matters with the nursing home. In my view they are matters which indicate that from the plaintiff's position at least, he had strong feelings towards his mother. With the exception of the incident in 1996 there is no evidence of any violent act against the mother. There is however evidence of disrespectful conduct towards his mother from his teenage years onward. Nevertheless that conduct did not seem to be regarded as reprehensible by either the mother or the father as the plaintiff continued to live at home. After the father retired there were times when the father attended the plaintiff's business. It is difficult to work out just precisely what the father did, but it seems that he was given at least some tasks and paid a wage for the performance of those tasks. 16 There is medical evidence about the plaintiff's condition. Exhibit 1 is a report from Dr Pickering dated 13 March 2002. The doctor under the heading "Diagnostic Opinion" makes a number of observations which may in part give some understanding of the way in which the plaintiff from time to time acts. 17 On page 8 of that report Dr Pickering says the following:- "Mr Edwards has been rather unsuccessful in his business ventures. To an extent, this may reflect the quite significant degree of disorganisation which is typical of severe ADHD. Many of the problems that he has had in his dealings with others have probably also reflected this problem. His failure to pay attention to detail, his lack of organisation, his tendency to procrastinate, and his impulsiveness are all characteristics which would make him prone to failure in business. The impulse aspects of his behaviour would leave him more likely to commit offences of an impulsive or unthinking nature, and his failure to adequately learn by these would be associated with another characteristic of this disorder, and that is an avoidance of taking responsibility for one's actions." 18 I think that probably sums up a lot of the evidence today. The plaintiff can see justification in his actions. However, in a number of his unusual business and employment endeavours he has found fault with others but not with himself. The impulsive nature that the doctor refers to may well explain what, to people who do not suffer from that complaint, as totally illogical to turn on your parents because your parents have eaten your meal or mixed your meal with another meal. But it does seem to be some basis for reasons why he did it. If he did not suffer from the complaint it may well have been that the way in which he reacted would never have come to pass. 19 Therefore, in any consideration of the plaintiff's conduct, his medical condition has to be taken into account. It is also significant that the plaintiff's life appears to have deteriorated severely since 1992. 20 The evidence is in 1992 the plaintiff suffered a stroke. That appears to have affected his ability to continue to work, and it appears to have led to a heightening of his alcohol problem, a problem which he readily concedes that he has had all his adult life. The evidence today is that he now no longer has that problem although he continues to drink may be one or two drinks a week, sometimes up to four or five, but it seems that unlike many alcoholics he has been able to control that problem, yet continue to drink. 21 The plaintiff's current position is one that could only be described as poor. He has no assets. He is on a disability pension of approximately $518 per fortnight. He has a motor vehicle valued at about $6,000 and he has no savings. His rent is $500 a fortnight. There is evidence he has fallen behind with the rent and there has in fact been a letter from the tenant requesting payment be made by the executrix of the back rent. 22 His evidence is that food costs him $100 a fortnight. His phone costs him $60 a fortnight and medication $15 a fortnight. The deficit therefore is $157 a fortnight. The plaintiff has debts of at least $2,800 excluding the rent. 23 The estate is not a large estate. The affidavit of the defendant sworn 28th August 2002 sets out on page 2 the current assets of the estate and the expenses and costs the estate would incur up to the conclusion of these proceedings. On my figures the net estate is approximately $63,500. That figure is arrived at as follows:- As at 28th August 2002 the estate is valued at $124,000. The executor's costs are approximately $23,000. The plaintiff's costs are approximately $20,000. There is also a debt due to the estate which is denied by the plaintiff. If one deducts the debt and the costs the net valued estate is approximately $63,500. 24 Reference was made to the steps referred to in Singer v Berghouse (1994) 181 CLR 201. It is clear that the plaintiff succeeds in the first step. In my view it is also clear that the plaintiff succeeds in the second step. The plaintiff has not been adequately provided for. The plaintiff has needs. Provision has been made during his lifetime, not only in terms of accommodation but in the 1970's and the 1980's assistance was rendered by his father by way of gifts or loans. Nevertheless those gifts during a lifetime whilst relevant are only one factor in determining whether or not further provision should be made to the plaintiff. 25 In looking at the plaintiff's needs one also has to look at the size of the estate and the competing needs. The plaintiff is the only eligible person. The other beneficiaries are two charities who take 80 per cent of the estate and the executrix who is a relative. Although the deceased made provision of 15 per cent for him by way of acknowledgment in the will they still made greater provision for him than they did for the defendant. It would seem to me that that would indicate that there was still some feelings the deceased had for the plaintiff. She may not have forgiven him for what happened in 1996 and neither she nor the plaintiff probably understood why it happened. As Mr Horsley has said some of the plaintiff's problems have only been diagnosed since that incident. 26 There is also the question which is linked with disentitling conduct; the absence of any contact by the plaintiff with the deceased. It is also important to remember that whilst the plaintiff's father appears to have been the bread winner in the family up until 1980, and that from the birth of the plaintiff the deceased stayed in the home and performed home duties, that any gifts for him made during his lifetime were as much the exertion of the mother as they were of the father. 27 Much has been placed on the relationship between the plaintiff and his father. It would seem to me that equal consideration must be given to the relationship that he had with his mother and by and large he had a good relationship with his mother. The incident in 1996 was regrettable, perhaps reprehensible. He didn't see his mother for two years after that. Can it be said that an estrangement of two years over a life-time of some 54 years should be treated in such a way that it completely bars the plaintiff from any further provision out of his mother's estate? Holland J in the case of Kleinig v Neil [1981] 2 NSWLR 532, 540 addresses this very problem. 28 It seems to me that when balancing all matters the deceased, who appears to have been a wise and just mother, may have been a little wiser and provided a little more than the fifteen per cent that she has provided under the terms of her will. In my view the plaintiff should succeed in these proceedings. The question is to what extent is the plaintiff entitled to succeed. The estate is a small estate. This Court over a number of years has encouraged people to mediate and settle matters at mediation, particularly where they are small estates. Although provision can be made for two charities it cannot be said at any stretch of the imagination that the deceased had any testamentary obligation towards those charities. If the estate was a large one perhaps provision could be made for them. 29 The plaintiff's needs in my view are fairly obvious. He needs a sum of money to discharge his debts and to correct the imbalance between income and expenditure. He is currently 57 years of age. He may go back into the work force, he may not. It is a matter of pure speculation. Nevertheless he should be entitled to additional provision out of his mother's estate. 30 He has indicated that if provision was made for him out of the estate he would like to live in the country where things are cheaper. It seems to me it is implicit within that statement by the plaintiff that what he sees the estate providing is accommodation. There are of course a long line of authorities which discourage the Court from becoming too generous with a testator's estate. 31 In essence, the decisions on this point are that the Court is under no obligation to make provision for unencumbered accommodation for a child, and that there is no moral obligation for community expectation that provision of that nature should be made for a child if the estate could make such a provision. There may well be cases when such provision should be made. 32 There is one other person to consider in this application and that is the defendant. The defendant has not been call for cross-examination today. She has put on a number of affidavits. One affidavit in particular relates to the relationship that she had with the deceased and her husband. There is evidence which deals with the period when the deceased went to the nursing home. It is clear from that evidence that the defendant's attitude towards the deceased was that of a caring person, and perhaps gave a great deal of comfort to the deceased in the twilight years of her life. In my view the defendant's legacy should not be disturbed. The plaintiff's legacy should be increased. 33 I note that the debt that is claimed as an asset of the estate is disputed. In my view the plaintiff should be provided by way of lump payment out of the estate of an amount in lieu of provision in the will of $45,000. The debt, if it was a debt, is to be forgiven. I do not disturb the provision made for the defendant. The proportions to the charities should remain equal as between the charities in respect of any balance in the estate. The plaintiff's costs should be paid by the estate on a party/party basis. The defendant's costs should be paid out of the estate on the indemnity basis they are the orders that I make.

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