Matthews v Wear

Supreme Court of NSW|2011-09-19|Before: Macready J

Judgment 1HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Phyllis May Marks who died on 5 September 2008 aged 94 years. She was survived by her adopted son, the plaintiff in the proceedings.

The last will of the deceased 2The last will of the deceased was made on 19 June 2006 under which the deceased appointed the two defendants as executors. She gave a large number of legacies and shares in residue which are set out in the following table. Thomas Stanley Wear Nephew $340,000 + 1/4 residue (includes share devised to his late mother; viz, $10,000 + residue) (the first defendant) Lily Richardson Sister $10,000 + 1/16 residue (mother of the first defendant) Allan F awcett Nephew $10,000 + 1/16 residue Noel Fawcett Nephew $10,000 + 1/16 residue Shane William Matthews Grandson $10,000 + 1/8 residue Aileen Bartley Niece $10,000 + 1/16 residue Stanley Earl Fawcett Nephew $10,000 + 1/16 residue (the second defendant) Karen McGuinness Grand niece $3333.34 Lindy Fawcett Grand niece $3333.34 Steven Fawcett Grand nephew $3333.34 Walda Scholer Niece $10,000 + 1/24 residue Gordon Fawcett Nephew $10,000 + 1/24 residue Ian Kenneth Matthews Son (plaintiff) $10,000 Leslie Richardson Friend $10,000 + 1/16 residue William Richardson Friend $10,000 + 1/16 residue Geoffrey Fawcett Nephew $10,000 + 1/16 residue Cancer Council of NSW Charity $20,000 Northern Region SLSA Helicopter Rescue Service Charity $10,000

3It can be seen that the plaintiff, the deceased's only child, received $10,000 and the major beneficiary was the first defendant, her nephew.

Estate of the deceased 4The estate consists of cash funds totalling $603,708, an Advance Investment Scheme in the sum of $190,943, giving a sum total of $794,651. There are outstanding tax liabilities of $1,233 and commission in the sum of $15,000. 5The recovery of the Advance Investment Scheme is doubtful. It was a mortgage scheme which normally relied upon a continued flow of new funds to allow the repayment for people who wanted to withdraw from the scheme. As a result of the Global Financial Crisis there have been no new investments so what happens is there are only repayments when loans are repaid and this only happens from time to time. 6The defendant's costs, which remain unpaid, are in the sum of $41,853, and the plaintiffs are in the sum of $67,950, making a total of $109,803. 7As the defendant concedes that some additional legacy will be payable to the plaintiff, the available estate will be in the sum of $477,607 and if there is a full recovery of the Advance Investment Scheme that will be a sum of $668,615. 8In summary, the legacies provided are as follows: (a) Legacy to Thomas Wear $320,000 (b) Other legacies (including to the plaintiff) $150,000 (c) Bequests to two charities $30,000 Total $400,000

9This will leave a residue of $268,615, made up of available cash in the sum of $77,672 and Advance Investment funds and the sum of $190,944.

Family History 10The deceased was born on 24 May 1914 and the plaintiff was born in February 1939. He spent his early years in an orphanage and in March 1942 he was adopted by the deceased and her husband Fred Matthews. The deceased's first husband, with whom the plaintiff got on well, died on 12 March 1948. 11The deceased then married John ('Jack') Robert Pickford in 1949 and there was then a variation of the adoption order so that the plaintiff was re-adopted by the deceased and Jack Pickford. 12By 1956 the plaintiff left home. He was then 17 years of age and started working in western New South Wales. The deceased and Jack Pickford separated in 1957 because, apparently, Mr Pickford had married bigamously. In due course he was prosecuted and has since died. 13At this time the plaintiff came back and lived with the deceased for a couple of months and then joined the air force in 1958. In 1960 he was convicted of assault occasioning actual bodily harm. That incident and his trial obviously affected the plaintiff and he still feels that he should not have been convicted. However, the fact of the matter is he was convicted and he spent 21 months in jail. At one stage when he was in jail the deceased came to visit him and he introduced her to George Marks, whom she subsequently married. 14After being released from prison in June 1961 the plaintiff lived with the deceased and worked on the farm. Unfortunately he did not seem to get on with George Marks and eventually he left and started work as a truck driver. 15On 23 October 1961, the deceased and George Marks married and the plaintiff was supposed to be the best man at the wedding. Because he was working extremely hard as a truck driver with very little rest he actually got confused as to the day on which the wedding was to be held and he simply forgot to go to the wedding. This caused quite a lot of grief to the deceased and she was quite justifiably angry about it. 16He continued working on the farm and I think it was in late 1962 that he finally left. In the period between 1963 and 1975, the plaintiff tried to make contact with the deceased but seemed to be rebuffed by Mr Marks. I will come back to the detail of that later. 17In 1983, the plaintiff started to live with Debra Stevenson and they had a son Shane, who was born in January 1986. The plaintiff did tell his mother of the birth of the grand child. 18There was correspondence in 1990 and there was one face-to-face meeting in 1991, to which I shall return. There was further contact by telephone with the deceased. 19In 1993, there was an incident when the deceased sent a parcel of clothes to her grandson, Shane, via the plaintiff. She thought they would be too large but they were in fact too small. The plaintiff returned the clothing to his mother, hoping she could give them back to whoever sold them to her. However, that caused great hurt to the deceased. 20The plaintiff's partner, Debra, died on 11 January 1995 and thereafter the plaintiff had to look after his son. In 1996, there was contact when the plaintiff asked for $500 to keep his car registered and that was provided by the deceased. There was then a further contact and I will come back to that in due course. 21In 1994, the deceased moved from Richmond to Alstonville and lived in a home there, which she purchased. When she was there she was looked after for many years by the first defendant and ultimately in 2006 the first defendant took her into his home and looked after her there until she went into a nursing home in 2008. She died on 5 September 2008. The summons was filed with in time. 22The plaintiff is an eligible person, being the adopted son of the deceased. 23In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At 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."

Plaintiff's situation in life 24The plaintiff is 72 years of age, single, with no dependents. His assets are personal effects worth $402 and he has liabilities $514. He has the use of his son's car. He receives an age pension, receiving $1,458.60 per month, and this is totally consumed in his expenses. 25The plaintiff lives in a Housing Commission home. There is a possibility of a move as the Housing Commission is selling the accommodation in that area. He will, if that happens, be offered other accommodation by them, particularly since he has been there since 1988. The Housing Commission has, due to his back problems, designated him as a person who is unsuitable for flats. 26He has a number of medical problems. He has problems with his teeth. He is deaf; he has a 42% loss in one ear and an 82% loss in the other ear. He has a hernia which is uncomfortable and he needs an operation. He will require glasses before long and he suffers from degenerative back injury. 27Naturally in this case there has been a fair bit of attention given to the relationship between the plaintiff and the deceased. As I mentioned, he did work at home as a child and he worked on the farm and did what most children do that at that time. When he was 17 years of age he then left and started to move away and worked in various different places. 28The term of imprisonment, as I said, occurred in 1960 and 1961. I have already talked about the events that followed and the failure of the plaintiff to attend his mother's wedding and be the best man. As I said, it is not surprising the deceased was quite upset with him. 29However that may be, he did in fact continue to work there. There was one incident which was given in the oral evidence of the plaintiff which illustrated the type of relationship which may have developed between the deceased and the plaintiff. He was young and he had come into the house wearing hobnail boots. He knew he should not have done that but he forgot to take them off and walked across the floor and that damaged the floor. His mother berated him and, according to the evidence, pushed him down and kicked him. 30The next Sunday while the family was about to sit down to the Sunday roast when he grabbed the tablecloth and pulled it off that table, totally destroying everyone's Sunday lunch. 31That extraordinary incident is not something he is proud of but it does show he has something of a temper, as probably the deceased did as well. Neither of them apologised to each other for any of those matters. 32The relationship after 1962 was very limited and there was only ever one face to face meeting. I have mentioned the fact that he was rebuffed by Mr Marks, according to the plaintiff and how he felt about it. 33In 1975, the plaintiff in fact rang from Western Australia where he was working and spoke to his mother. She told him of her troubles and said "Look, don't worry about us, just worry about yourself", in other words, something of a rejection. 34Eventually by 1983, he got back to New South Wales having been in various parts of Australia and rang his mother and she simply said she and George were okay and he ought to get on with his life. He certainly felt that he was not wanted at that stage. 35In 1984, there was further contact when he offered to help with transporting some of the deceased's produce but that was rejected. 36As I have mentioned, in 1986 he advised his mother of the birth of his son Shane and that at least gave the deceased a new interest. 37The visit which occurred in 1991 was when the plaintiff called in and saw his mother, along with his partner and Shane. Apparently it went well for a while but then the deceased said to the plaintiff "You have got a hide coming back after all these years." He tried to explain the fact he had been away and did not refer to the fact that he had been discouraged by George Marks from speaking to her. 38A little bit later, in 1991, the plaintiff once again when he was in the area tried to see his mother but she told him not to come as she had friends there. He says it was at this stage he realised how difficult his mother was towards him. 39In 1993, there was the misunderstanding about the parcel of clothes for Shane and that produced a somewhat extraordinary response from the deceased. The letter she sent after that event contains a number of allegations, that she assume that the plaintiff only wanted Shane to get money from her estate and referring to the fact she had already made provision for Shane and decided to change it and give the money instead to the Camperdown Children's Hospital. 40The plaintiff wrote to his mother in January 1995 to tell her about the death of his partner Debra. The reply came to Shane from the deceased. I have already mentioned the contact in 1996 for the provision of funds and there was further contact in 1997 when the plaintiff sought to help his mother. After 1997, there was only one contact with the deceased. 41In Foley v Ellis [2008] NSWCA 288 the Court of Appeal referred to the problem that arises in this type of case in these terms: "101. The more recent authorities have held that a State of a estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant. In Palmer v Dolman Ipp JA, after a review of the cases, observed (at [110] that: '... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.' See also Wheatley v Wheatley [2006] NSWCA 262 at [22] - [23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse . 102. The authorities indicated that where the claimant has been estranged from the testator or testatrix, the application of section 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, estate of G M Wentworth (Bryson J) quoted in Wheatley v Wheatley at [22]. In addition, section 9 (3) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, not to over simplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context the raw emotions experienced at the time. The ' wise and just ' testator or testatrix ( Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this." 42It is also useful to see the wise words of Bryson JA in Wentworth v Wentworth (NSWSC, 14 June 1991, unreported) which are in these terms: "I do not regard a state of estrangement or even hostility as necessarily bringing to an end any moral duty to make provision for an eligible person, with a wife, son, daughter or other. When there is an estrangement the application of section 7 requires that it should be appraised and its causes should be considered. A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty. A whole view of the relationship and the character and conduct of both parent and child should now be taken, and the influence of character can be complex. Sometimes people's characters cause them to be poorly disposed towards their parents, and the influence of this on a parent's moral duty is not solely an adverse to the child; people's behaviour is influenced by their characters in ways from which few can escape and of all people their parents have had most time and opportunity to influence character, understand it, become reconciled to it and tolerate its workings when unpleasant. In another age a different interpretation of the community's sense of moral duty was probably correct, but it is my task to interpret moral duty in my own times. The idealised just and wise testator of the present age knows now that he should not expect submission to his wishes, and knows that his children will be themselves no matter whether he likes it or not, and that they will feel free to interact with any hostile or unreasonable conduct of his own. Courts no longer attribute to the characteristic of being stern to the idealised testator, reflecting a marked change in perceptions of moral duty since 1910 when Edwards J spoke in Allardice v Allardice (1910) 29 NZLR 959 at 973 a father who was just and stern but not loving. Long periods of hostility or estrangement are not inconsistent with successful applications and the contribution of the testator is examined: see for example Gorton v Parks (1989) 17 NSWLR 1, Howarth v Reed , Powell J unreported 15 April 1991." 43It seems clear that the plaintiff, for whatever reason, was abrupt, but so was the deceased. There were problems that prevented some of the contact. There was the relationship with George Marks and the distance of the plaintiff from the deceased for a large part of his life. I also accept it would be difficult for the plaintiff, given his income, to travel to see the deceased. It seems clear that the deceased wanted contact with Shane but not the plaintiff. 44The plaintiff is a fairly simple person and straightforward. He felt he was not wanted by the deceased but, to his credit, he kept on trying. However, he did not have contact partly due to the deceased rebuffing him and partly due to his remote circumstances. In my view his lack of contact should not substantially affect any provision which is made for him. 45It is necessary to consider the circumstances of those having a claim on the bounty of the deceased. There are seven relatives or friends who are beneficiaries who put on no evidence of their financial situation or their relationship with the deceased. These parties have filed no evidence as to their association with the deceased in her lifetime. The Court can therefore assume that they do not wish to Court to take those matters into account. 46I turn to consider the evidence of those who have placed evidence before the court.

Thomas Stanley Wear 47Thomas is a nephew of the deceased and is aged 72 years, single, with no dependents. He is in fact the first defendant. He owns his own home worth $400,000, a $40,000 car, furniture and he has cash of some $62,865. His income is $1,751 per month and his expenses are $1,212 per month. 48He had a life long relationship with the deceased. Between 1961 and 1990 he was travelling three times a year to the deceased's home to help her for a while on the farm. In 1994, as I mentioned the deceased move to Alstonville. He then helped with carrying out maintenance around her house and during the last 10 years cared for her on an extensive basis. He helped her, he took her shopping, and he took her to a doctor's appointments. He did not have to bathe her because nurses did that each day. 49In 2006, as the deceased had suffered further problems she moved into Thomas's house and he and his mother cared for her in their home. His mother died in 2007. In February 2008, the deceased went into a nursing home. Plainly there was a long association over the whole of the life of Thomas.

Shane William Matthews 50Shane is the grandchild of the deceased and the son of the plaintiff. He is 25 years of age and lives in a de facto relationship and his partner has three children. His assets are minimal, being a car and some personal effects worth $2,700 and he works as a casual bar attendant earning $1,800 a month. His partner apparently has some income and their expenses are $2,130 per month. He only had very limited contact with the deceased and I have already made reference to this. Due to his family commitments he has many needs and he certainly needs the legacy he has been given.

Aileen Bartley 51Eileen Bartley is a niece of the deceased. She is 71 years of age, single, with no dependents. She lives in a day care village and receives a pension. She has health problems consistent with age, including hip problems, a hernia and the like. She also had contact with the deceased on a frequent basis. She used to drive to see the deceased and stay for several weeks from time to time. She saw her often when the deceased move up to Alstonville because she lived in the Alstonville area.

Stanley Earl Fawcett 52Stanley Fawcett is the second defendant and is a nephew of the deceased. He is 74 years of age, married and his son and his son's daughter live with them on a part time basis. They own their own house and live on a pension. He has a number of health problems. He has hernias, aneurysms and they affect his well-being. He resides near Alstonville and had contact with the deceased.

Lindy Fawcett 53Lindy Fawcett is a grand-niece of the deceased and she is aged 44 years. She lives in a de facto relationship with her three children aged 5 to 12 years. Their combined income is $96,000 a year. She also used to visit the deceased person at Richmond and Alstonville.

Walda Scholer 54Walda is a niece of the deceased and she is 69 years of age. She is married, and she and her husband own their own home worth approximately $154,000. They have a car and their income is $28,198 per annum. She needs help with surgery to her hip and her knees and she has a number of needs due to her medical condition. There is little evidence about her contact with the deceased, she having seen the deceased when she was a child.

Gordon Fawcett 55Gordon is a nephew of the deceased, age 75 years and he is married. He and his wife own their own home worth $300,000; they have a car and caravan and investments of some $375,000. The joint income is $42,000 per annum and their expenditure is $30,894. He also suffers from health issues, kidney problems, and may have to go on dialysis because his spine is deteriorating. He lives in Queensland and does not talk about any contact he had with the deceased.

Geoffrey Richard Fawcett 56Geoffrey is a nephew of the deceased, is 72 years of age and married. He and his wife own their own home worth $145,000. They live on a pension of $18,000 per annum. He has extensive medical problems and he needs a full-time carer. He has antiepileptic drugs and lives in Queensland. He has needs connected with his health and he gives little evidence of his contact with the deceased.

Discussion 57it is necessary to see how they plaintiff says he has been left without adequate and proper provision for its maintenance, education and advancement in life. In this regard I set out the claim below: Need Quantification Housing $300,000 Medical and health $39,896 Furniture and white goods $20,906 Motor vehicle $35,000 Scooter $6,500 Home repair and maintenance, billiard equipment, internet, clothing and assistance with future $131,000 expenditure on car, heating and sundries Total $533,693

58His medical and health needs are quite real and quite appropriate. So far as furniture and white goods are concerned, I think it is clear he needs a new fridge, dryer and television. However, I feel that the rest of the claim is nothing more than a complete refurbishment of his house and they are not justified. 59There were some small items such as bedding which needs replacing but I do not think the rest are appropriate. He wants a motor vehicle costing $35,000 and says that he has a strong view about small cars and he would not consider a small car for safety reasons. Probably at this stage it may be appropriate for him to have that amount for a car. 60There is conflict in what he says because he also says he wants money for a scooter and presumably that is so that when he cannot drive a car he will need a scooter but he says he needs both these now. 61There are a lot of questions to be asked about future expenses. Many of these things he may need now, many of them he will not. It is hard to know what his real financial position will be. 62The real problem in this case is whether he should have provision for a home. In McGrath v Eves [2005] NSWSC 2006, Gzell J referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said: "67. When it comes to children, as Young J observed in Shearer v the Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson JA pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. 68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004]NSWSC 419 at [109] - [110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR404 and Ogden v Green [2003] NSWCA 352. 69. White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the Estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effects on her well-being. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally. 70. It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence had put forward no competing financial or other needs for the Court to consider. 71. There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the Court ought to order." 63In this case there is evidence as to the cost of a small home. He does not want a villa or a unit. A unit is not suitable for him given his somewhat difficult personality and back problems. Importantly, he is presently secure in his Housing Commission accommodation but if they wish to move him the Housing Commission would be obliged to offer him another accommodation. 64The situation might be different if he was renting a home on the open market but that is not the case, he has accommodation. 65There is no real analysis of how he would support a house if he was given one. It is perfectly clear he cannot borrow any money to acquire a home. 66Other considerations include the size of the estate. It may be the estate will not make any substantial recovery from the Advance Investment. If this occurs including a home for the plaintiff would mean that there would be a substantial impact on the legacy to Thomas and the others who have given evidence. 67Thomas has helped the deceased all his life and he was really like a son to the deceased in place of the one which the deceased tried to discard. He should not have his legacy affected. Most of the others who gave evidence have important needs which justify the retention of their small legacies. 68In all those circumstances, I do not think the provision of a debt free home is appropriate. 69However, there are other needs which the plaintiff has and which I have identified above. In addition, he should have a fund for contingencies. 70In the circumstances I think that a legacy of $150,000 is appropriate. So far as to where the burden of this should fall, I think it should, first, be on the presently available residue and by that I mean to exclude any recovery from the Advance Investment Scheme; second, from the charities and third any other legatees who have not given evidence. The effect of this will be that in due course the recovery of money from Advance Investments, if it is made, may follow the destination of residue. (Short minutes to be prepared by counsel and sent to his Honours chambers for orders to be made)

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. Decision last updated: 30 September 2011

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