Mannix and Nudd v Mannix [2008] NSWSC 1228 | Case summary

3282 of 2007 RITA NUDD -v- STEPHEN MANNIX JUDGMENT 1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982. 2 By summons 2808 of 2007, filed on 21 May 2007, Wayne Mannix claims an order for provision for his maintenance, education and advancement in life out of the estate of his late father Arthur Joseph Mannix (to whom I shall refer as "the Deceased"). By summons 3282 of 2007, filed on 21 June 2007, Rita Nudd claims an order for provision for her maintenance, education or advancement in life out of the estate and/or notional estate of the Deceased. 3 At the commencement of the hearing an order was made in each matter that both matters be heard together and that the evidence in the one, so far as is relevant, be treated as evidence in the other. 4 The Deceased died on 6 May 2006, aged 79. He was at that time a widower (his wife, Mrs Beryl Mannix, having died on 24 September 1978). He was survived by the three children born of his marriage, being his sons Stephen (who was born in 1957 and is presently aged 50), Russell (who was born in 1961 and is presently aged 47) and Wayne (who was born in 1963 and is presently aged 44). 5 The Deceased left a will dated 8 February 2006, probate whereof was on 29 September 2006, granted to Stephen Mannix, the executor named in such will (who is the Defendant to each of the present proceedings). I shall, for convenience and without intending any discourtesy, refer to each of the Plaintiffs, the Defendant and the other children of the Deceased by their respective first names. 6 The inventory of property discloses the following assets, and the respective estimated values thereof: House property situate at and known as 35 Horatio Street, Rosemeadow $330,000 Term deposit, St George Bank $10,000 Cheque account, St George Bank $34,788 Term Certain Annuity Plan, AMP Life Limited $67,384 Single Life Annuity Plan, AMP Life Limited $36,831 Life insurance, AMP Life Limited $2,485 Flexible Lifetime Investment fund, AMP Life Limited $17,422 Collectable cars $1,462 7 The liabilities of the Deceased at the time of his death totalled about $7,400. 8 The foregoing assets have been liquidated. The real property was sold for $250,000 (that price being considerably less than the estimated value disclosed in the inventory of property). The estate now consists of the following: Deposited funds, St George Bank $400,182 St George Bank $4,000 Marsdens Law Group $11,000 Total $415,182 9 In calculating the value of the estate available for distribution the costs of the present proceedings should be taken into account, since each Plaintiff, if successful, will normally be entitled to an order that his or her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of each proceeding, will normally be entitled to an order that his costs be paid out of the estate. 10 It was estimated that the costs of the Plaintiff Wayne will total about $45,000, and the costs of the Plaintiff Rita will total about $82,200, whilst the costs of the Defendant of both proceedings will total about $65,000. That is, the totality of the costs of all parties will be in the order of $192,000. 11 Accordingly, taking into account the foregoing costs (in a total amount of about $192,000), it is appropriate to proceed upon the basis that the amount available for distribution will be no less than about $223,000. 12 However, in regard to costs it should here be recorded that Rita in cross-examination said that her arrangement with her solicitors was that if she is not successful in her present claim, she will not be required to pay her own costs of the proceedings. 13 I would also here observe that in a straightforward claim under the Family Provision Act, the hearing of both matters together occupying two days, I consider the amount of $82,200 for Rita's costs to be grossly excessive. In the event that she ultimately establishes an entitlement to a costs order in her favour, I propose to make an order capping those costs to a reasonable amount. 14 By his will the Deceased gave a legacy of $10,000 to Wayne, a legacy in the same amount to each of the Deceased's grandchildren (of whom there were six living at the time of his death), the Deceased's collection of collectable cars to each of those grandchildren, and gave the residue of his estate to be divided equally between Stephen and Russell. Thus, after the payment of those legacies (totalling $70,000), each of Stephen and Russell will be entitled to no less than about $76,500. (Had the present proceedings not been instituted, each of Stephen and Russell would have received about $172,500.) No provision was made for Rita, although in an earlier will, made on 20 May 1998, the Deceased provided that Rita should receive a legacy of $10,000. 15 Wayne left school at the age of about 15, and thereafter for some years maintained an itinerant lifestyle, working in various seasonal occupations at various locations throughout eastern Australia. He now resides at Swansea in the Hunter region of New South Wales. 16 In August 2007 Wayne married Rosemary Gayle Mannix. No children have been born of that union. However, Wayne has a daughter by a previous relationship (who is an adult and no longer dependent upon him), whilst his wife also has non-dependent children of an earlier relationship. Residing with Wayne and his wife is the infant daughter (aged two) of one of his wife's children. That infant grandchild is totally dependent upon Wayne. Wayne receives an annual income of about $44,000 from his casual employment as a traffic supervisor. That income is entirely expended in meeting household outgoings, of which Wayne provided details, in a total amount of $625 a week (including rent of $255). His only assets consist of household objects and personal effects (of only nominal value), together with savings of about $400 in an account with the Greater Building Society. He also has a superannuation account with AMP Life, the current balance being about $10,000. He does not own a motor vehicle. 17 Wayne's wife is not in employment, but she receives Centrelink payments in fluctuating amounts up to about $100 a fortnight, those payments apparently being what was described as "part parenting" payments in respect to her infant granddaughter. 18 Wayne has always lived in rented accommodation. He has never owned any real property. Neither does his wife own any real property. She appears to have no assets of significance, apart from a 1992 Ford motor car. Wayne gave evidence of his desire to purchase a residence, and the cost of what he considered to be appropriate houses (in the vicinity of $220,000 to $270,000), as well as the results of enquiries which he had made about the availability of housing loans for such a purpose. He also expressed a desire to purchase a Toyota Hi-ace van, for travelling to and from work, for transporting children and for providing recreation. As a result of enquiries, Wayne expected that a suitable vehicle would be available in the price range of $13,000 to $26,000, with a median price being $20,000. 19 There was considerable evidence concerning the nature of the relationship between Wayne and the Deceased. It was asserted by Wayne that he had a close and affectionate relationship with his father, and that, to the extent that he was constrained by geographical limitations, he maintained close and regular contact with the Deceased. Stephen and Russell, however, disputed the nature and extent of Wayne's relationship with their father, and asserted that Wayne's contact with the Deceased was neither regular nor frequent. 20 In this regard it is relevant that there was attached to the earlier will of the Deceased, that of 20 May 1998, two statements, each apparently in the handwriting of the Deceased, and each signed by the Deceased. One of those statements was headed "De Facto Mrs Nudd". The other, which was headed "My Son Wayne", was in the following terms, I leave Wayne my son $10,000 dollars. He should be grateful for this amount, as he turned on me and my sons Stephen and Russell. The day he left home he called me all the filthy names he could think of. He broke into my house when we were all on holiday in N.Z. He frequently stole money from my two sons Stephen and Russell that they used to put away for their car payments. He was often in trouble with the police. He seems to have sorted himself out now. We only see or hear from him every now and then. A R Mannix 21 The foregoing statement of the Deceased is admissible in evidence pursuant to the provisions of section 32 of the Family Provision Act. However, the Court need not accept unquestioningly such statements, since a testator, like any witness, is capable of deceit or exaggeration, and, of course, is not available for cross-examination. 22 Nevertheless, despite the assertions of Wayne, I consider that the evidence of the Deceased and his other two sons (who were cross-examined) is to be preferred concerning the nature of the relationship between Wayne and his father. It follows that I am satisfied that the contact between Wayne and the Deceased was neither frequent nor regular. Furthermore, I am satisfied that Wayne's relationship with his father was not the close and loving relationship which obtained between each of Stephen and Russell with the Deceased. 23 Rita had lived as the de facto partner of the Deceased for some years from the 1980s. She said that that relationship commenced in 1983, whilst the Defendant asserted that it had commenced no earlier than 1987. The parties also were in issue regarding the date of termination of that relationship. Rita asserted that the relationship obtained to the time of the death of the Deceased, whilst it was the case for the Defendant that the relationship had come to an end on 13 February 2006, almost three months before the Deceased died, when Rita departed the Deceased's residence at Rosemeadow and removed to Queensland. That is, according to Rita, the de facto relationship extended over a period of about twenty-three years, whilst, according to the Defendant, the relationship subsisted for no more than nineteen years. 24 Rita was born in 1930 in England, and is presently aged 78. She and her then husband and their five children migrated to New Zealand in about 1967, and subsequently to Australia in 1969. In about 1979 Rita, her husband and one of their sons returned to live in the United Kingdom for about 18 months. Rita then came back to Australia in 1981. However, her husband remained in the United Kingdom. They were subsequently divorced in about 1986. It was Rita's understanding that he had later remarried and that he was now deceased. Rita received nothing from his estate. 25 In February 1983 Rita met the Deceased, consequent upon a newspaper advertisement which had been inserted for publication at the instance of Rita's daughter, Sylvia Aldren. A friendship between Rita and the Deceased matured into a de facto relationship, Rita moving into the Deceased's residence at St Peters Street, St Peters. The date upon which Rita moved into the Deceased's residence and, as I have already recorded, the date upon which the de facto relationship between them commenced were in dispute. According to Rita, she moved into the St Peters residence in late 1983. 26 According to Rita, at the time when she met the Deceased Rita's assets consisted only of savings of about $20,000 (perhaps less). 27 During the period while they were living in the residence at St Peters, Rita was not in employment. However, she said that she contributed towards the household outgoings, by paying for all the groceries and the telephone account, purchasing household linen, cutlery and other utensils, as well as purchasing all her own clothes and the Deceased's clothes. For those purposes Rita said that she expended money which she had saved when she came back from England, as well as money which she had earned while working as a housekeeper before meeting the Deceased. In addition, Rita said that she did all the cooking, cleaning, clothes washing and housework in the St Peters residence. 28 The Deceased retired from employment in 1990 and thereafter received a pension. According to Rita, after the Deceased's retirement they travelled extensively in Australia, owning a campervan from 1995. Rita said that when they travelled the Deceased paid for the fuel and all the running costs of the campervan, as well as for costs at campsites and caravan parks, whilst Rita herself more often than not paid for the groceries and clothing on those trips. 29 In addition, Rita and the Deceased also went on an overseas trip, the Deceased paying for Rita's airfare, but Rita otherwise contributing to one half of all the expenses of that trip. 30 During the course of the relationship the Deceased's health deteriorated. He suffered problems with his eyesight, having become practically blind by late 2003. He became increasingly feeble, and from at least 2003 was suffering from Parkinson's Disease, and Rita became his full-time carer. 31 In 1999 Rita and the Deceased removed from St Peters to Rosemeadow (in the vicinity of Campbelltown), where the Deceased purchased a house property situate at and known as 35 Horatio Street, Rosemeadow (which property constituted the chief asset in the estate of the Deceased at the time of his death). 32 Three years later, in 2002, Stephen, his wife and their children commenced to live in the adjoining residence, at 33 Horatio Street, Rosemeadow. 33 At the present time Rita is residing with her sons Ivan (Vibeke) Nudd, and Edward Albert Nudd at Redcliffe in Queensland. Rita's son Vibeke estimated that he spends $100 a week on his mother's living expenses and outgoings. In his affidavit evidence he said that, whilst his mother was welcome to stay with him indefinitely, she had expressed a desire to live on her own. Nevertheless, Rita under cross-examination stated that she was happy with her present domestic arrangements, residing with two of her sons (the household being completed by the girlfriend of one of those sons). 34 According to Rita's affidavit evidence, her present income consists of a pension from the United Kingdom in an amount of about $421 a month, and a pension from Centrelink in an amount of about $487 a fortnight. That is, according to her affidavit evidence, Rita's fortnightly income is about $697. She said that she currently has savings of about $23,000 and has an amount of about $2,000 in what she described as her "pension account". She has no outstanding liabilities. 35 Rita gave evidence of her present outgoings, in amounts totalling about $195 a week. 36 Rita has suffered from various health problems in recent years, including diabetes and a number of cerebral haemorrhages. Rita has had a considerable number of blood transfusions, as well as other medical treatments. She takes various medications, and sees her general medical practitioner several times a month. She requires assistance with transportation, shopping, attending medical appointments, and other activities away from home. 37 The claim of the Plaintiffs must be approached in the light of the competing claims of the other beneficiaries and of any other persons who might have a claim upon the testamentary bounty of the Deceased. Those other persons are Stephen and Russell, being the other two of the three children of the Deceased. 38 Stephen resides at 33 Horatio Street Rosemeadow (next to the property which was formerly the residence of the Deceased). He is married, and one of his two children is still partly dependent upon him. Stephen is employed as a technician, earning $47,000 gross a year. His wife is not in employment. The house property at Rosemeadow (to which Stephen ascribed a value of about $300,000) is subject to a mortgage of $157,000, in respect of which he makes monthly payments of $1,185. Stephen does not own a motor vehicle, although a car is provided by his employer. He has credit card debts totalling about $40,000. Apart from the house property, and its contents, Stephen's only asset is a superannuation entitlement, presently worth about $70,000. Stephen suffers from very high blood pressure, for which he takes medication, costing $200 a month. He has also been diagnosed as diabetic, and is being treated by a heart specialist. 39 Stephen said that with any money which he might receive from his father's estate he would pay off his credit card debts and the mortgage debt upon his residence. He would then consider seeking some other employment, where he would be under less pressure and less stress. 40 Throughout his life Stephen had a close and affectionate relationship with his father. 41 Russell is married, residing with his wife and their three children at Dubbo, where he is employed as a warehouse manager. His income is $57,000 gross a year. Russell and his wife reside in a house property which is subject to a mortgage of $190,000. He makes mortgage payments of $1100 a month. Russell and his wife own two motor cars (to which he attributes a value of about $10,000 each). 42 Russell's wife has not worked since she was diagnosed with breast cancer in October 2005. Before then she was employed as a marketing manager, receiving a salary of $67,600 gross a year (about $900 a week). Russell's wife also owns shares, having a value of about $5000, in the company by which she was employed. Since being diagnosed with breast cancer, she has been receiving what has been described as income protection, being in an amount of 75 percent of her normal income. According to Russell's evidence his wife's prognosis is good. Their son, aged eight, suffers from allergies and asthma, and is under the care of a medical specialist. He requires medication and a special diet. Russell provided evidence concerning his regular expenses and outgoings. 43 Russell said that he would use any benefit that he might receive from his father's estate to pay off a debt to Harvey Norman (for the purchase of furniture, which is currently being paid at the rate of $90 a month). In addition, he is desirous of upgrading at least one of the family motor vehicles. 44 Russell always had a close and affectionate relationship with his father. After removing to Dubbo in September 1992 Russell and his family were in the practice of visiting the Deceased three or four times a year, and in addition the Deceased would visit them in Dubbo a couple of times each year. 45 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff. I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 46 It should at the outset be emphasised that it is the obligation of an applicant for provision to provide to the Court as fully and as frankly as possible all available information concerning the applicant's financial and material circumstances. In the instant case neither Plaintiff has fulfilled that obligation. 47 The evidence offered by Wayne provided little, if any, information concerning those circumstances of his wife. Rita in her affidavit evidence provided no information concerning various advances (or loans) in significant sums which she had made to two of her children. It was only under her cross-examination that it emerged that in relatively recent times, apparently at least within the last six years, she had made such advances, in sums totalling at least $10,000 to her son Ivan, and in sums totalling $60,000 to her son Kevin. Further, it was during her cross-examination that it emerged that Rita had standing to her credit amounts of almost $14,000 in the National Australia Bank, and in excess of $30,000 in the St George Bank. 48 Further, it emerged only in cross-examination that Rita's income from Centrelink was at the time of the hearing over $600 a fortnight, although usually it fluctuated between $530 and $540 a fortnight. Those figures are considerably more than the amount of $487 a fortnight referred to in her affidavit evidence. Similarly, Rita's United Kingdom pension at the time of the hearing was $517 a month, that being almost $100 a month more than the amount referred to in her affidavit evidence. It would appear that the amounts totalling $60,000 which Rita gave to her son Kevin came from moneys which she received by way of damages in a claim for injury to her neck. 49 Wayne as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such he has the standing to make his present claim. 50 The Defendant conceded that Rita was an eligible person within paragraph (d) of the foregoing definition, in that she had been a member of the same household as the Deceased and had been partly dependent upon the Deceased, at least for her accommodation. 51 There was considerable evidence proffered as to whether or not Rita was the de facto partner of the Deceased at the time of his death. The physical condition of the Deceased and the physical problems and increasing frailty of Rita herself made it practically impossible by early 2006 for Rita to continue looking after the Deceased. A young female carer who had been established in the Rosemeadow house was regarded by Rita as being inadequate to the Deceased's needs. The Deceased had suffered a number of cerebral haemorrhages (including one in October 2005), as well as a fall in which he broke several ribs, and he had spent some time in hospital. Rita requested that the Deceased accompany her to Queensland, but he was unwilling to do so, expressing the climate of that northern State as the reason for his reluctance to relocate there. After Rita had removed to Queensland in early 2006 she and the Deceased maintained frequent telephonic contact, and, according to Rita, the Deceased frequently requested her to resume residence with him at Rosemeadow. 52 It is quite apparent that the reason, indeed the sole reason, for Rita's departure from the Rosemeadow home and her removal to Queensland in early 2006 was her inability, aged in her mid-70s, to continue caring for her blind, frail and physically declining partner, aged in his late 70s. Nevertheless, somewhat curiously, when giving instructions in January 2006 for his final will, that of 8 February 2006, the Deceased, when asked by his solicitor whether Rita was still his de facto partner, said, "No. We are no longer together." That statement was made at a time when indisputably Rita and the Deceased were residing together in the Rosemeadow property and when they were still in a de facto relationship. 53 A temporary separation, such as that made necessary by one of the partners being admitted to hospital, does not of itself result in the termination of a de facto relationship. 54 In circumstances where, as here, Rita in Queensland was requesting the Deceased to relocate to that State, whilst the Deceased was requesting Rita to resume residence in the Rosemeadow property; and where (as I am satisfied) it was only the physical and health problems of each of the two partners which had resulted in Rita relocating to Queensland, I am not satisfied that the geographical separation of the partners during the last two or three months of the Deceased's lifetime put an end to the de facto relationship between Rita and the Deceased. 55 Accordingly, I am satisfied that Rita is an eligible person within paragraph (a) of the foregoing definition contained in section 6(1) of the Act. As such she has the standing to bring the present proceedings. Even if (contrary to the conclusion which I have just expressed) I were not so satisfied that the Plaintiff was the de facto partner of the Deceased at the time of his death, I would, in any event, be satisfied (and such was conceded by the Defendant) that Rita is an eligible person within paragraph (d) of the foregoing definition. (Were it necessary for me to do so, I would, in such circumstances, be satisfied, as required by section 9(1) of the Act, that there are factors which warrant the making of Rita's application. Those factors include the length of the de facto relationship and the fact that it was only the physical inability of Rita to continue as full-time carer of the Deceased which resulted in her removal to Queensland from the Rosemeadow residence.) 56 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 - 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance. 57 The High Court in Singer v Berghouse (at 209 - 210) said that the determination of the first stage calls for an assessment of whether the provision (if any) made was inadequate for 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. 58 It will be apparent that the distributable estate, having a value of about $223,000 (or somewhat more, if Rita were not to receive out of the estate the totality of her costs of $82,200), is not sufficient to meet the claims of Wayne and of Rita, as well as to accommodate the competing claims of Stephen and Russell as beneficiaries under the will of the Deceased (and also to meet the legacies totalling $60,000 to the six grandchildren of the Deceased, three of whom are still infants). 59 There is no possibility that the estate could accommodate the acquisition by Wayne of a house property in the range of $200,000 to $270,000, nor of a retirement unit by Rita costing about $130,000, and also preserve any significant benefits to each of the beneficiaries named in the will. 60 Wayne maintains a modest lifestyle. Even with the legacy of $10,000, his circumstances are such that I am satisfied that he has been left without adequate provision for his proper maintenance. However, as I have already observed, he has never owned his own residence and he has always lived in rented accommodation. In any event, even if the size of the estate were sufficient to enable it to be done, I do not consider that a testator in the circumstances of the instant case had an obligation to provide a house property (or a significant part of the purchase price thereof) for his adult son. 61 It seems to me, however, that Wayne should, in addition to his legacy of $10,000, receive from the estate a further legacy, in a relatively small amount, which would enable him to enhance his modest lifestyle, to provide a fund to meet unexpected contingencies, and to acquire a new motor vehicle. I consider that such additional provision should be in the amount of $30,000. (That is, Wayne will receive from the estate a total amount of $40,000.) 62 I have already recorded that during her cross-examination Rita agreed that she is happy in her present domestic arrangements. 63 Nevertheless, she lacks financial independence, and has only modest savings to fall back upon in order to meet unexpected contingencies. After a de facto relationship obtaining for at least nineteen years, I consider that the absence of any provision from the estate of the Deceased, has, in the circumstances of the instant case, resulted in Rita being left without adequate provision for her proper maintenance. 64 I do not consider it appropriate (in the light of her expressed satisfaction with her present domestic arrangements) that she receive from the estate of the Deceased an amount sufficient to enable her to purchase a residence of her own. In any event, as I have already observed, the size of the distributable estate is such that it is not possible for provision to be made to that effect, whilst accommodating the entitlements of the three sons of the Deceased. 65 As in the case of Wayne, I consider that Rita should receive from the estate a legacy which will enable her to enhance her modest lifestyle, assist in meeting her outgoings and provide a fund for unexpected contingencies. For such purposes she should receive from the estate of the Deceased a legacy in the sum of $60,000. 66 The effect of legacies to Wayne and Rita in the foregoing sums (totalling $90,000) will be to reduce the benefits to be received by each of Stephen and Russell from about $76,500 to no less than $31,500. However, I have already referred to the fact that I consider the costs of $82,200 for Rita's claim to be grossly excessive. Since I propose to make an order for provision in her favour in the sum of $60,000, it is quite inappropriate that she should be entitled to receive from the estate costs in excess of that sum. Accordingly, I propose to make an order that the costs which may be payable to Rita from the estate of the Deceased should not exceed $60,000. The effect of such an order capping Rita's costs will be that the distributable estate will be spared a further $22,000, with the consequence that the amounts which Stephen and Russell will each receive will therefore be about $42,500. 67 Whilst neither Stephen nor Russell can be regarded as being in affluent financial circumstances, especially since each is paying off a mortgage upon his residence, nevertheless, neither can be regarded as destitute. In circumstances where, upon my calculations, Stephen and Russell, will from the estate of the Deceased ultimately receive about $42,500 (perhaps a little more), and where the legacies to the grandchildren of the Deceased will be preserved, I do not consider that the competing claims of Stephen Russell and of the grandchildren are such that they have the effect of reducing, let alone extinguishing, the foregoing orders for provision in favour of Wayne and Rita, which I am satisfied those applicants to have otherwise established. 68 Accordingly, I make the following orders.

Mannix and Nudd v Mannix

At a glance

Court

Decision date

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Judgment (12 paragraphs)

Parties

Cases Cited (5)

Cited By (2)