LAWRENCE v PUBLIC TRUSTEE HUGHES v PUBLIC TRUSTEE

Supreme Court of NSW|2001-05-04

CITATION : LAWRENCE v PUBLIC TRUSTEE HUGHES v PUBLIC TRUSTEE [2001] NSWSC 375 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 1260/2000; 1283/2000 HEARING DATE(S) : 3/4 May 2001 JUDGMENT DATE : 10 May 2001

PARTIES : KENNETH WILLIAM LAWRENCE v PUBLIC TRUSTEE JUANITA CLARE HUGHES v PUBLIC TRUSTEE JUDGMENT OF : Master Macready at 1

Miss E. Cohen for Kenneth Lawrence COUNSEL : Mr. M. Willmott for Juanita Hughes Mr G.E. Underwood for Public Trustee Colquhoun & Colquhoun for Kenneth Lawrence SOLICITORS : Sheridan & Stubbs for Juanita Hughes Howard Cheridan Cooney Harvey for Public Trustee CATCHWORDS : Family Provision - Claim by two members of a household. - No relatives and estate passes to Crown as bona vacantia. - Order for legacies. Ball v Newey (1988) 13 NSWLR 1989 Benny v Jones (1991) 23 NSWLR 559 Petrohilos v Hunter (1991) 25 NSWLR 343 CASES CITED : McKenzie v Baddley (CA 3.12.91) William v Legge (CA 16.3.92) Re Fulop Deceased (1987) 8 NSWLR 679 Churton v Christian (1998) 13 NSWLR 241 Singer v Berghouse (1994) 181 CLR 201 DECISION : Paragraph 42

MASTER: These are two applications under the Family Provision Act in respect of the estate of the late Albert John Lawrence who died on 7 August 1998 aged approximately 68 years. The deceased had never married and had no children. There are two proceedings which have been heard together with the evidence of each one being evidence in the other. Both plaintiffs are people who claim to be eligible persons, as they say that they were members of the household, comprised of the deceased and themselves, and were partly dependant upon the deceased. The deceased died intestate and it is apparent that his estate passes to the Crown as bona vacantia. 2 The amount of the estate at the present time is $505,651.41. There have been costs incurred in the proceedings. The plaintiff Lawrence's costs are estimated at $25,000 to $30,000, those of the plaintiff Hughes, between $20,000 and $25,000 and those of the defendant at $39,000. 3 The plaintiffs, in order to demonstrate that they are eligible persons, each have to establish that they are a person who was; (1) at any particular time, wholly or partly dependant upon the deceased person and; (2) was at that particular time, or at any other time, a member of a household of which the deceased person was a member. 4 It is necessary to deal with each of the plaintiffs separately, and I will firstly turn to the claim of plaintiff Kenneth William Lawrence. It us useful in this respect, to deal with a chronology of the relationship between this plaintiff, members of his family and those of the deceased's family. 5 The plaintiff was born on 12 May 1941, and he lived with his mother and father until 1943. In 1943 his father left to go to war and did not return to the plaintiff's mother. Subsequently they were divorced. Between 1943 and 1947 the plaintiff lived with his mother, but spent school holidays with the deceased and his family, at their property. In 1947 the plaintiff commenced to live with the deceased, and the deceased's parents, at a farm which apparently, at that stage, the deceased and his father operated in partnership. After he moved to the farm the plaintiff was told by the deceased that his mother had to work in town, and that she could not afford to keep him in town. While living in the deceased's home, with the deceased's parents, the plaintiff started going to school from the dairy farm at Frederickton. At this time, the deceased himself was some nine years older than the plaintiff and, in fact, had just left school. Thereafter, the plaintiff lived with the deceased and his parents, until he was about 15 or 16. In 1956 the plaintiff left the deceased's dairy farm to find work, and ultimately married in 1965. The father of the deceased, who is known in the evidence as Uncle Dolly, died in 1966. In 1985 the deceased's mother, referred to as Aunty Stella, moved to a nursing home. In 1995 the plaintiff retired, due to ill health and in 1998 the deceased died. 6 Over the years from 1956 until the date of death, the plaintiff did, from time to time, when he was in the area, call and visit the deceased. In the case of the plaintiff, Mr Lawrence, it is fairly clear that he was part of the household of the deceased. 7 There was an extensive discussion of the meaning of "household" in Kingsland v. MacIndoe 1989 VR 273 and it seems clear that the word in its ordinary sense is as set out in the Oxford dictionary: "The holding or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".

8 It is clear that the household, at the time I am considering it, between 1947 and 1955, was one which comprised of at least four people. One of them was the deceased, one was the deceased's father, one was the deceased's mother, and the fourth was the plaintiff. There is nothing in the way the section is constructed which indicates that a person with whom a household is shared, must be what might be called the head of the household. For example, step-children can frequently be members of a household for the purposes of the section in respect of any one of them. I am satisfied in this case that the plaintiff was part of a household. 9 In Ball v Newey (1988) 13 NSWLR 1989 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following: "His Honour concluded that "dependent" meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s6(1) the definition of "eligible person", par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. "Dependent", in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities.". While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 10 In Benny v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The Court rejected a submission that dependency may be based solely on the existence of the relationship without regard to any element of any financial dependence. 11 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say:- "I would respectfully disagree with the master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed." If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McLelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

12 In McKenzie v. Baddeley (Court of Appeal unreported 3 December 1991) his Honour Mr. Justice Meagher, although in the minority, further discussed dependency and described it as "financial economic or material dependency not a mere emotional dependency". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" rather it suggests "more than minimally" or, perhaps, "significantly". 13 In William v Legge (Court of Appeal 16 March 1993) the Court in considering a case of a young child needing mothering, pointed out that the absence of financial dependence is not conclusive. 14 It is abundantly clear from all these comments that dependency is a matter to be determined from all the facts in the case.

15 In the present case the nature of the dependency was said to be a financial one. It seems clear that during the relevant period that the deceased's father probably owned the property. It then passed to the deceased's mother before passing to the deceased. The evidence would suggest that it was the deceased himself who gave money to the plaintiff for the purchase of the plaintiff's clothes and also the purchase of food. The evidence suggests that the deceased's father did not manage any of the books and that there is also evidence that, at the relevant time, namely the period immediately after the deceased left school, he was in partnership with his father in the business and thus, entitled to part of the income which paid for the food for the plaintiff. The plaintiff indicated that in a similar way his Aunty Stella did not control the cash, and it appeared that it was from the deceased that the money was provided. No doubt the deceased's father had an interest in it, but so did the deceased. Accordingly, in these circumstances, I am satisfied that the plaintiff was dependent upon the deceased for his food and clothing. For a child from the age 6 to 15, these are important matters, and certainly they are substantial. Indeed, they are far more than minimal. I am satisfied, therefore, that the plaintiff is an eligible person. 16 However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 17 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

18 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

19 Looking at the matter in the traditional sense a number of matters stand out about the relationship. The plaintiff himself was related to the deceased both on his mother's side and his father's side as he was also a nephew of the deceased's father. In effect he was the closest blood relative of the deceased. According to the plaintiff the deceased treated him more like a father. The deceased took him with him when he went to the beach and he taught him the skills of running a dairy farm and other matters to do with management of the farm. There was some emotional bond between them, even after the plaintiff left to make his own way in the world, as demonstrated by the evidence that the plaintiff, when he was in Moree, aged 17, was locked up for being a vagrant. The deceased drove a 600 mile, round trip, in order to bail him out of gaol. In other words, he fulfilled an important role in the plaintiff's upbringing. In my view, there are sufficient factors warranting the making of the application in the traditional sense. I will later consider whether it is appropriate for some order to be made but, in the meantime, I will move to the situation of the other plaintiff, Mrs Hughes. 20 The plaintiff Mrs Hughes was born on 11 July 1945. She was the second cousin of the deceased. The deceased's father was her grandmother's brother. During her childhood she saw the deceased from time to time when his family visited Mrs Hughes' grandparents farm at Moorebank. At times she saw or also visited the deceased's family with her grandparents. As a result of these contacts, Mrs Hughes often assisted Aunty Stella with housework as she was having difficulty coping with the work. She kept up contact with Aunty Stella when she was moved into a nursing home at Kempsey, and apparently Aunty Stella repeatedly asked Mrs Hughes to take her home to the farm. As a result, the plaintiff, Mrs Hughes purchased a caravan and took it to the deceased's property and parked it three or four metres from the back door of the house in anticipation of the return of Aunty Stella to the property. There was a delay while the bathroom was constructed, because Aunty Stella needed to be able to be bathed. Eventually she came home on 1 July 1990. The plaintiff came with her and resided in the caravan and in the house. She cared for Aunty Stella for 13 days until Aunty Stella died on 13 July 1990. Thereafter, Mrs Hughes stayed on at the property and continued to assist the deceased. 21 The deceased by this stage in 1990 was suffering from a number of problems. Once he got past the age of 30 he started to become overweight and lost all interest in the farm. This led to neighbours having to assist in running the farm. He was having substantial difficulty getting about by the time Mrs Hughes came to look after the deceased's mother. Mrs Hughes stayed there until she ultimately had to leave the property in January 1994. There was some suggestion that the period might have been a little shorter but I am satisfied that she is correct in her recollection. 22 For the purposes of determining the relevant matters, it is necessary to note the fairly careful evidence as given by Mrs Hughes of the detail of the work that she did about the house, and how she and the deceased lived in these three to four years. 23 After rising at 5.30 in the morning, Mrs Hughes would go and attend to feeding the cattle on the farm. She would then go home and cook him a breakfast and then tend the garden surrounding the house. Each day she used to have to go and mop and clean the house throughout. The deceased obviously had become a complete recluse and he allowed the house to become overrun with up to 15 cats, 2 dogs and a variety of ducks and geese. The animals were allowed the run of the house, all day long, despite the protestations of Mrs Hughes. 24 The deceased's mother had managed to restrain the animals prior to her death. The result was that the house stank and the animals made it extremely dirty with excrement. This required work every day by Mrs Hughes, to try and maintain some semblance of keeping the house healthy, even if not clean. 25 She prepared lunch for the deceased each day, and also prepared dinner for him. She did housework throughout the day, and in the evening she would retire to her caravan. She would more often than not, have her evening meal there, although at times she and the deceased would have meals together. From time to time, for instance, they had afternoon tea sitting on the veranda outside the deceased's house. The work carried out by Mrs Hughes was substantial. She herself had disabilities and was on a pension. She was paid by the deceased the sum of $40 per week which was an amount she was allowed to receive before her pension was affected. The extent of the work which she did was substantially greater than the amount represented by this payment of $40. 26 So far as whether she is part of the household it should be noted that Mrs Hughes was given free run of most of the deceased's house. She used the bathroom, the kitchen and living areas and, as I have mentioned, from time to time, they did have some meals together. Each week they would go to the shops together to do the shopping. 27 Unfortunately in the later part of the four-year period the deceased started to force his attentions on the plaintiff involving her in his sexual approaches. Mrs Hughes had nothing to do with these and rejected them. She did not want the plaintiff and pointed out to him that they were related. Ultimately these attempts on the deceased's part, led Mrs Hughes to obtain some medical help and at the doctor's suggestion she left the premises. The only reason she had stayed and put up with the deceased over the last year was because she thought that he could not look after himself. This, I genuinely believe, is why she stayed. It is not surprising then that Mrs Hughes said that during the last year she used to lock the caravan when she retired at night. The caravan took its electricity from the house and the deceased would turn this off at nine o'clock so that she could not continue with her knitting, or reading. The fact that the caravan was locked is immaterial. Bedroom doors in a house can also be locked. 28 Although the plaintiff clearly had a separate room in the caravan outside the house it seems to me that there was a household which was carried on in what was comprised of both the house and the caravan. 29 I am satisfied that Mrs Hughes was a part of the household of which the deceased was a member. 30 So far as dependency is concerned, it is clear that Mrs Hughes was dependent upon the deceased for part of her accommodation. She required use of the house for its bathroom, its kitchen and some other amenities. She was also supplied with electricity. She was not charged any board and, in my view, was dependent upon the deceased for her accommodation. I am satisfied she is an eligible person. 31 When one looks at factors warranting, I have already set out the relevant tests. As far as the plaintiff is concerned, there are a number of matters that have to be taken into account. It seems quite plain that there was contact between the deceased and Mrs Hughes over their lifetime. When the suggestions came up of Mrs Hughes coming to stay, the deceased encouraged these. There are a number of letters in evidence which he sent her about this time which show that he wanted her to come and live on the property. They included promises to leave the farm to Mrs Hughes when he died and these matters were put forward in order to encourage the plaintiff to return after she went back to her children at Port Macquarie for a few weeks. 32 On another level there is another area where one can clearly find the existence of factors warranting. This is in the nature of the care and attention which the plaintiff Mrs Hughes, provided to the deceased. It went far beyond anything which might have been recompensed by the $40 per week and clearly extended to provision of full time services to the deceased of a difficult nature. 33 In these circumstances, I am satisfied there are factors warranting the making of the application and I will now consider whether there might be prospects of success. 34 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a Court must take. At page 209 it said the following:- "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."

35 The plaintiff, Mr Lawence, and his wife, own their own home which is in Gumdale, Queensland. He also owns an old Ford F100 and a 1984 Mazda. The Ford, apparently, cannot be re-registered. They live on his disability pension. They have no superannuation or life insurance, and their savings are only a few thousand dollars. The disability pension is $308 per week. The plaintiff, Mr Lawrence, retired about five years ago when he was 53 years old as he had contracted sugar diabetes. Both his legs are in fibreglass supporting boots, due to bone degeneration, and he has recently had a toe amputation due to complications arising from the insulin dependent diabetes. They have no private medical insurance as they cannot afford it. He needs to have treatment to his eyes and also his legs. He finds it extremely difficult to manage given his wage and his medical expenses. 36 It is necessary to see how the plaintiff has been left without adequate and proper provision for his maintenance, education and advancement in life. In this regard, in respect of some of the claims made by the plaintiff, I am reminded of what was said by Sheller JA in The Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:- "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.'" 37 It is clear from his evidence, that the plaintiff needs a car. The Ford F100 cannot be re-registered, and the Mazda is 16 years old. Because of his lack of sight, mobility is a problem, and a car is obviously a necessity. However, the cost of the car has not been quantified in the evidence. There are some repairs that are necessary to the house, and these seem to be fairly urgent. Such repairs total $13,500. 38 The plaintiff, because of his medical condition, needs massages which cost about $40 on each occasion and he wants some help to provide him with alternative therapies to ease the pain in his feet but these costs have not been quantified. Also, clearly, he would like the benefit of some more income in order to supplement the pension, however, there has been no quantification of this amount or consideration of what sum would produce an appropriate income. Clearly, however, he has such a need because there are a number of things, such a private health insurance and medical attention, which he simply cannot afford. 39 The plaintiff should receive a legacy. The question is, how much? Before considering that, I will move on to the situation of the plaintiff Mrs Hughes. 40 Mrs Hughes has never been in paid employment and receives a disability pension in the amount of $370.30 per fortnight which she has received since 1988. This was caused by a brain haemorrhage she suffered in 1987 when she lost part of the sight of her right eye and her right side. She finds it difficult to walk long distances or walk upstairs and has been unable to drive for some years. Her children and grandchildren are not dependent upon her. She has household furniture which she values at $300, electrical goods $100, a caravan now worth $3,000 and $5 in a bank account. She rents rooms from a friend who owns a house in Smithtown and pays $60 per fortnight for the two rooms. She clearly is just making ends meet. The plaintiff has put forward a need for some accommodation. The evidence before me indicates that an appropriate small house could be obtained in the area where she lives for about $100,000. She also puts forward the need for a fund for contingencies in order to make her life a bit more comfortable. 41 Her situation is not normally one where one would think in terms of providing accommodation. Her involvement with the deceased was only for four years and it is not as though there was a relationship between the parties in terms of marriage or otherwise. However, in the present case the matter ought to be seen in the context of an estate which is relatively large compared with the claims upon it and one where there are no other competing claimants. In the circumstances I am satisfied that it is appropriate, particularly having regard to the care that the plaintiff provided to the deceased that she have some appropriate sum which will provide accommodation and a small sum to provide for contingencies. 42 The orders that I make are as follows:-

I order that the plaintiff Kenneth William Lawrence receive a legacy out of the estate of the deceased in the sum of $60,000.

I order that the plaintiff Juanita Clare Hughes receive a legacy out of the estate of the deceased in the sum of $130,000.

I order 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.

Last Modified: 05/11/2001 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.

(1988) 13 NSWLR 1989

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Judgment (14 paragraphs)

Cases Cited (8)

Cited By (1)