Mayfield v Public Trustee [2009] NSWSC 330 | Case summary

3138 of 2007 WILLIAM DAVID MAYFIELD -v- PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 13 June 2007 William David Mayfield claims an order for provision for his maintenance and advancement in life out of the estate of his late father, Gordon Ernest Mayfield (to whom I shall refer as "the Deceased"). 3 The Deceased died on 14 December 2005, aged 79 years. He left a will dated 16 January 2004, probate whereof was on 22 March 2006 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). 4 The Deceased, who was a widower at the time of his death (his wife, Mrs Elsie Mayfield, having died on 6 September 2003), was survived by his two children, William David, the present Plaintiff (who was born in 1951, and is presently aged 58) and Robert Gordon (who was born in 1954, and is presently aged 54). 5 By his will the Deceased gave the entirety of his estate between his two grandchildren, being Andrew Mayfield and Davina Mayfield (who are the children of his younger son Robert). 6 I shall for convenience, and without intending any disrespect, refer to the Plaintiff, his brother, and the two grandchildren of the Deceased by his or her respective first given names. 7 The inventory of property discloses the following assets in the estate of the Deceased, together with the respective values thereof: House property situate at and known as 66 Watts Road, Callala Beach $315,000 Moneys in bank accounts $62,857 Quintrex aluminium boat $5,000 Australian Pensioners Insurance policy refund $116 Berry Masonic Lodge refund $711 Telstra refund $24 Total $383,711 8 In calculating the value of the estate of the Deceased available for distribution, the costs of the present proceedings should be taken into consideration, since the Plaintiff, if successful in his claim, will normally be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the present proceedings, will normally be entitled to an order that his costs be paid out of the estate. 9 It was estimated on behalf of the Plaintiff that for a one day hearing his costs will total about $36,700, whilst it was estimated on behalf of the Defendant that for a one day hearing his costs will total $35,000. The Defendant will, in addition, be entitled to recover from the estate his commission and administration expenses, in a total amount of $8,800. 10 Concerning the foregoing costs, however, it was during the course of the hearing (which extended into a second day) noted that for the second day of hearing the Plaintiff's costs would be increased by a further amount of $3,850 and, the Defendant's costs would be increased by a further amount of $4,000. 11 The parties were in agreement that it was appropriate that the Court should proceed upon the basis that the net distributable estate was in the order of $274,000. 12 It was the evidence of the Plaintiff that, after leaving school at the age of 15 years, he completed an apprenticeship as an electrician in 1972. Thereafter he worked as an electrical mechanic with New South Wales State Rail until 1989. In 1983 the Plaintiff suffered a back injury at work, which resulted in him undergoing a laminectomy. Upon leaving his employment with State Rail, the Plaintiff proceeded to enter upon the receipt of WorkCover benefits. Those benefits ceased in 1991, and the Plaintiff then commenced to receive a disability support pension, which he continues to receive. 13 According to the Plaintiff, a WorkCover settlement was reached between him and State Rail, by which he ultimately received a net amount of about $73,000. 14 It was the evidence of the Plaintiff that throughout the respective lives of his parents he maintained a close and affectionate relationship with each of them. 15 The Deceased and his wife had acquired land at Callala Beach on Jervis Bay in the early 1970s, and they then commenced to build a residence on that land. That residence, when completed, they used essentially as a holiday home until about 1991, when they removed permanently from Sydney to Callala Beach. 16 The Plaintiff had left home in 1976, when aged 25, to marry. He was divorced in 1978. The Plaintiff returned to live with his parents at Callala Beach in 1991, remaining with them for a year. It was the Plaintiff's evidence that from the age of 17, whenever he resided with his parents, he paid board to them. In 1992, the Plaintiff purchased a house property at Callala Beach, which was located about 500 metres from the residence of his parents. 17 According to the Plaintiff, his parents assisted him financially in purchasing that house property. He said that by 1997 he had repaid to them a loan in an amount of $10,000. Subsequently, the Plaintiff borrowed $30,000 from a bank, in order to have an extension constructed upon that residence. The Plaintiff said that he sold that house property in 2000 for $130,000. He said that he had in the meantime purchased a block of land at Callala Bay with funds from his WorkCover payout. A house was constructed upon that land in 2000, after the Plaintiff had sold his residence at Callala Beach. 18 According to the Plaintiff, in May 1993, one Marie Grey commenced to live with him in his residence at Callala Beach. The Plaintiff said that when she first commenced such residence with him, she was a "lodger/boarder", but that subsequently she became his carer, in which capacity she receives a carer's pension. In 2003 the Plaintiff sold his residence at Callala Bay, and purchased a farming property at Meningie in South Australia for $236,596. While arranging to remove from the South Coast of New South Wales to South Australia, the Plaintiff attempted to persuade the Deceased to accompany him, but the Deceased declined to do so. On 20 October 2003 the Plaintiff departed Callala Bay for the Meningie property, where he continues to reside. That property consists of a 280 acre farm, upon which the Plaintiff runs cattle. He said that Marie Grey's family lives nearby. 19 In about June 2004 the Deceased was admitted to hospital in consequence of a heart attack. He subsequently removed into a retirement home at Nowra. It was the Plaintiff's evidence that after he had commenced to reside in South Australia he visited the Deceased on two occasions in 2005, and that he also telephoned the Deceased regularly at the retirement home. 20 It was the Plaintiff's evidence that he presently has little mobility. He said that he can no longer walk, even with the aid of a walking stick, and that he now requires to go nearly everywhere in a wheel chair. There was admitted into evidence a document headed "Needs Assessment Report", from the Department for Families and Communities of South Australia, dated 16 July 2007. The Plaintiff said that his physical condition had deteriorated so rapidly in recent times that he was no longer able to get in and out of the shower without assistance from his carer, and the he relied upon Marie Grey for almost all activities, including dressing and brushing his hair. He said that because of his medical condition he was unable to perform physical work on the farming property, except to a minimal extent, and that 95 percent of the work on the farm and in the house was performed by Marie Grey. 21 The Plaintiff is presently in receipt of a disability support pension from Centrelink, which in the most recent period for which such information was provided by him, being 2005-2006, totalled $12,846. For the same year the cattle farming enterprise of the Plaintiff made a net loss of $44,048. The Plaintiff operates an overdraft with the Bank of South Australia, having a limit of $40,000. The Plaintiff also has a Mastercard, having a credit limit of $19,500. At the time of swearing his primary affidavit in support of the claim, being 12 October 2007, the debit balance on that credit card was $13,541. 22 The Plaintiff's assets consist of the farm at Meningie, to which a present estimated value of $250,00 was attributed. He owns a New Holland tractor, which he purchased in 2004, "subject to finance". The Defendant said that the amount presently owing on the tractor was $23,204. 23 The Plaintiff owns a motorised wheelchair. He currently also has on loan a smaller motorised wheelchair. The Plaintiff estimated that the value of his stock on the rural property was about $24,800. He said that his only other assets were: Motor vehicle (half share) $8,000 Furniture and personal effects $2,800 Gator all terrain vehicle $6,000 Ride on motor $1,500 24 Each of the Plaintiff and Marie Grey denied that they were in any form of de facto relationship, and each asserted that Ms Grey was no more than the carer of the Plaintiff. 25 A considerable quantity of evidence was given, both by affidavits filed on behalf of the Defendant and by way of oral evidence under cross-examination, concerning various attempts by the Plaintiff, first, to have the Deceased make a will in his favour; second, to have the Deceased revoke a power of attorney which he had made in favour of his grandson Andrew (who is one of the two beneficiaries), and to obtain orders from the Guardianship Tribunal in respect to that power of attorney; third, to change the locks on the Deceased's house property at Callala Beach after the Deceased had entered into the retirement home; and, fourth, to have the Deceased accompany the Plaintiff to South Australia. 26 No evidence was given by Marie Grey concerning her financial and material circumstances. 27 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claims are those of the two beneficiaries, who were the chosen objects of their grandfather's testamentary beneficence. Robert Mayfield, the other son of the Deceased gave evidence concerning conversations between himself and his father, in which the Deceased offered to make a will in favour of Robert, who dissuaded the Deceased from that course. The Deceased then told Robert that he would leave his entire estate to Robert's two children, saying that he did not desire the Plaintiff and Marie Grey to get anything. 28 The affidavit evidence filed on behalf of the Defendant (especially that of Robert and his two children) gives an entirely different picture of the relationship between the Plaintiff and the Deceased from that which the Plaintiff would have the Court believe. 29 Davina Mayfield was born in 1983, and is presently aged 26. It was her evidence that she had a close and affectionate relationship with each of, her grandfather, and her grandmother. While growing up Davina spent much time during school holidays with her grandparents at Callala Beach. Davina is a veterinary nurse by profession. She and her partner have a young son, who was born in June 2007. Davina currently works three and a half days a week as a veterinary nurse at the Maroubra Veterinary Hospital, receiving about $560 net a fortnight. Her partner is employed by State Transit as a bus driver, earning about $1600 net a fortnight . 30 Davina has the following assets: Mitsubishi Mirage 1998 motor vehicle (having an estimated value of $5,000), furniture (having an estimated value of $3,000), and a minimal amount in a St George bank account. 31 In April 2008, Davina's partner purchased a two bedroom home unit at Eastlakes, which is now the residence for Davina, her partner and their small child. The title to that home unit is in the sole name of Davina's partner, as is the mortgage on that home unit. That home unit has an estimated value of $296,000, and the mortgage loan on that home unit is presently in an amount of $276,000. The only other significant asset of Davina's partner is a Kawasaki motor cycle (having an estimated value of $7,000). 32 Davina gave evidence of the expenses and outgoings of her partner and herself, in a total amount of $2,115, a fortnight, that figure including mortgage repayments in an amount of $1,180 a fortnight). 33 It was Davina's evidence that if she and her partner have another child, she would probably not continue in her employment as a veterinary nurse, but would devote her time to her children, at least until they reach school age. 34 Davina has suffered from a gynaecological problem since her teenage years, which has necessitated surgery on four separate occasions. Without that surgery, it may not be possible for her to have more children. It is, however, the hope of Davina and her partner that they will have another child in 2009. 35 Davina gave evidence of a conversation which she had had with the Deceased shortly before his death, in which he expressed a desire to assist Davina and her partner in acquiring a home of their own. 36 Davina also gave evidence that the relationship between the Plaintiff and the Deceased, especially during the period while the Plaintiff was residing with his parents at Callala Beach, was not the close and affectionate one that the Plaintiff would have the Court believe. 37 Andrew Mayfield, the other beneficiary named in the will of the Deceased, was born in 1975, and is presently aged 33. It was his evidence that he also had a close and affectionate relationship with his grandparents, especially with the Deceased. 38 Andrew is currently employed as a Senior Constable of Police in the Rescue and Bomb Disposal Unit of the New South Wales Police Force, earning $1738 net a fortnight. He also works part time as a spray painter, earning about $450 net a fortnight. He married in 1998, and has two young children, aged respectively eight and five. Andrew, who separated from his wife in December 2007, said that that separation is likely to be permanent. 39 Andrew presently resides in shared rented accommodation with a work colleague, for which his share of the rent is $250 a fortnight. 40 Apart from a superannuation entitlement in an amount of $11,074, Andrew's only assets are a Hyundai Excel motor car (having an estimated value of about $3,000) and $500 in a bank account. 41 Andrew pays his wife $275 a fortnight towards their children's school fees and his wife's motor car expenses. He said that that payment is in lieu of paying child support to her. Andrew and his wife receive from Centrelink a family allowance of $88 a fortnight. 42 As a result of the joint liabilities of Andrew and his wife (which in February 2008 totalled in excess of $157,000), Andrew has entered into a Part X personal insolvency agreement with his creditors under the Bankruptcy Act 1996 for a period of five years, under which he pays $874.50 a fortnight to his Controlling Trustee. The foregoing liabilities were essentially in regard to personal loans and credit card debts incurred by Andrew and his wife (as a result, according to Andrew, of his wife losing her long-term employment). 43 Andrew's wife has been made bankrupt. 44 On 17 August 2004 the Deceased executed documents by which he gave to Andrew his general power of attorney and appointed Andrew as his enduring guardian. Thereafter, Andrew attended to the payment of all the Deceased's bills. 45 The Plaintiff made an application to the Guardianship Tribunal for review of the enduring power of attorney given by the Deceased to Andrew. After a contested hearing on 30 November 2005 (at which evidence was given by, amongst others, the Plaintiff, the Deceased (by telephone) and Andrew), the Tribunal decided not to make any order arising from its review of the enduring power of attorney executed by the Deceased in favour of Andrew. 46 In the present proceedings no evidence by way of affidavit was given by Marie Grey. However, during the course of the hearing she gave short oral evidence on behalf of the Plaintiff, that evidence being to the effect that she first met the Plaintiff in 1991, and that she had never had a de facto relationship with him, and that she was his full-time carer. Ms Grey was not cross-examined upon that evidence. Ms Grey did not provide any information concerning her financial and material circumstances. 47 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 48 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. 49 The Plaintiff 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 Privision Act. As such he has the standing to bring the present proceedings. 50 The only other eligible person in relation to the Deceased is his other son, Robert, who has expressly declined to make a claim for provision, and who desires the terms of the will to remain in effect. 51 It was submitted on behalf of the Plaintiff that, essentially on account of his health problems - which he asserted largely confined him to a wheel chair - he was in need of financial provision from the estate of the Deceased. The Plaintiff sought an order for provision which would enable him to discharge his debts (including his overdraft) and would provide him with a fund to meet contingencies, in the circumstances when, as he asserted, he would be no longer able to conduct his farming activities. He sought a capital sum of $180,000. It should here be recorded, however, that the Plaintiff, through his Counsel, expressly stated that the Plaintiff does not advance a case based upon his condition of multiple-sclerosis. 52 It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to set forth as fully and as frankly as possible all details of the applicant's financial and material circumstances. In the instant case the Plaintiff has signally failed to do so. 53 I was most unfavourably impressed by the Plaintiff in the witness box. There were very significant omissions from his affidavit evidence concerning his financial and material circumstances. In his oral evidence the Plaintiff attempted to explain those omissions by saying that he had forgotten or overlooked these matters, or by saying that he had never been asked to provide the information. 54 It emerged only during his oral evidence under cross-examination that the Plaintiff upon relinquishing his employment at State Rail in 1989 had received a superannuation payment of about $70,000. The existence of any superannuation payment, let alone a payment in the foregoing amount, was not referred to in his affidavit evidence. 55 The details of the Plaintiff's purchase of the land at Callala Bay and of the house at Callala Beach emerged only during his cross-examination. The Plaintiff said that he paid $90,000 for the house property at Callala Beach, and that he paid $50,000 for the land at Callala Bay. Further, that the sale of the house at Callala Beach subsidised the building of the residence at Callala Bay. In cross-examination he said that he had forgotten about the mortgage on that latter property. 56 The Plaintiff sold the Callala Bay property in October 2003 for $500,000. Neither the fact of that sale, let alone the amount of the proceeds received by the Plaintiff therefrom, was referred to in any way in the Plaintiff's affidavit evidence. 57 The Plaintiff was not able to offer any adequate explanation as to what he did with the balance of that $500,000 remaining after he purchased the rural estate at Meningie for about $237,000. 58 In this regard I am in agreement with the submission of Counsel for the Defendant that (consistently with the decision of Pratt LCJ in Amory v Delamirie ("the Chimney Sweepers Case") (1722) 1 Strange 505; 93 ER 664) in the absence of proper evidence from the Plaintiff as to what happened to the difference between the $500,000 which he received from sale of the Callala Bay property and the price of the purchase of the Meningie property ($237,000) and various other items of stock and equipment, the Court is entitled to assume that the Plaintiff has retained a significant sum in assets which he deliberately chooses not to divulge to the Court. 59 The Plaintiff's affidavit evidence made no reference to two separate term deposits, each in the sum of $100,000, which he held with the Bank of South Australia in 2004, let alone to the source of those funds or the disposition thereof. 60 In regard to the evidence concerning the finances of the Plaintiff, I would observe that the manner in which evidentiary material on behalf of the Plaintiff was presented to the Court, let alone made available to the legal representatives of the Defendant, was totally unsatisfactory. 61 The Plaintiff's attempt to substantiate his alleged expenditure with a very considerable quantity of documentary material produced during the course his oral evidence (which should have been provided, at some earlier stage, in answer to a notice to produce) was grossly prejudicial to the Defendant's legal representatives, who were forced to deal with this material on the run. Counsel for the Plaintiff was himself quite obviously taken by surprise by this documentary material produced by his own client, as he was also by evidence given by his own client during the course of the hearing. 62 The Court must do justice between the parties. The manner in which the case was presented on behalf of the Plaintiff placed the Defendant in an almost intolerable situation, in attempting to meet, on the run, material which should have been made available on affidavit, and in answer to a notice to produce, long before a date had even been fixed for the hearing. 63 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. 64 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. 65 Despite the assertion of the Plaintiff that his relationship with the Deceased was a close and loving one, I am not satisfied that it was. The evidence discloses that the contact of the Plaintiff with the Deceased was not as frequent or as regular as he would have the Court believe. Indeed, under cross-examination, the Plaintiff admitted that he did not see his father from 2003 to 2005. 66 Further, he agreed that the only purpose of the contact between the Plaintiff and the Deceased on 7 March 2005 was the attempt on behalf of the Plaintiff to get the Deceased to see Mr Philip Broad, who was the Plaintiff's own solicitor, for the purpose of having the Deceased revoke the power of attorney which he had given to Andrew. On that very day the Plaintiff attempted to change the locks on the Deceased's residence. Despite oral evidence of the Plaintiff that he was performing that activity in accordance with his father's "written authority", no such written authority was ever produced. Under cross examination the Plaintiff asserted that that alleged authority had been written out by his solicitor, Mr Broad, and that it had been signed by the Deceased. 67 No evidence was given by Mr Broad (who was present in Court throughout the foregoing evidence of the Plaintiff), either upon affidavit or orally, to support the statement made by the Plaintiff under cross-examination concerning the alleged "written authority". It should be noted that Mr Broad, as solicitor for the Plaintiff, had provided an affidavit regarding the Plaintiff's costs, that affidavit being sworn by Mr Broad on 3 December 2008. That was the very day upon which the Plaintiff under cross-examination stated that Mr Broad had written out the alleged authority, which was alleged to have been signed by the Deceased and which, according to the Plaintiff, purported to authorise the Plaintiff to change the locks upon the Deceased's residence. 68 Not only do I not believe that there ever existed such an authority, written or otherwise, but I consider that the Plaintiff's evidence in this regard was a deliberate attempt on his part to mislead the Court. If there had been any truth in that evidence, then Mr Broad would have been expected to be called by Counsel for the Plaintiff, in reply, to substantiate the Plaintiff's allegation. Mr Broad, although present in Court and hearing the Plaintiff's evidence concerning Mr Broad's own alleged conduct, chose not to offer any evidence in support of his client's allegation. 69 That false evidence by the Plaintiff is consistent with his totally unreliable and incomplete evidence concerning his financial and material circumstances. 70 The Plaintiff also said that at the time of the giving of the alleged authority he believed that the Deceased was suffering from dementia. If that was the Plaintiff's genuine belief, then it was totally improper for him to attempt to have a dementia sufferer attend upon the Plaintiff's own solicitor for the purpose of effecting the revocation of a power of attorney. 71 I have no hesitation in expressing my view that the conduct of the Plaintiff towards the Deceased in March 2005 could properly be described as being highly reprehensible. 72 The Plaintiff made his application to the Guardianship Tribunal in April-May 2005. During that period the Plaintiff was staying in or near the towns of Berry and Callala Beach for a period of five days. However, he did not choose to visit his father during that period, or until the Guardianship Tribunal hearing on 30 November 2005, that being about two weeks before the Deceased's death. 73 For completeness, I would observe that I am not satisfied that the Plaintiff's offer that the Deceased should accompany him to South Australia in 2003 was a genuine offer. 74 I have already referred to the fact that the Plaintiff described Marie Grey, as being, at the outset, his boarder/lodger, and as later becoming, and continuing to be, his carer. Both the Plaintiff and Ms Grey denied that they were or ever had been in a de facto relationship with each other. 75 It matters little whether Ms Grey is or ever was the de facto partner of the Plaintiff. What is of importance and significance in the instant case is that for a period of more than 15 years she has resided with the Plaintiff, and has been at least his full-time carer in respect to his physical needs, and has contributed to the outgoings of their joint household. That being so, the Court is entitled to have some information concerning the financial and material circumstances of Ms Grey. Neither the Plaintiff nor Ms Grey herself chose to put before the Court any information in that regard. 76 I am not persuaded that the Plaintiff has established that his financial and material circumstances are such that by the will of the Deceased he has been left without adequate provision for his proper maintenance. That conclusion is of itself determinative of the present claim. 77 However, even if (contrary to the conclusion which I have just expressed) the Plaintiff were to establish that he had been left without adequate provision for his proper maintenance, the competing claims of the two beneficiaries, the two grandchildren of the Deceased, must be taken into consideration. 78 The Plaintiff attempted to establish that the relationship between the Deceased and his two grandchildren was not a good one, and that neither Andrew nor Davina had close, affectionate or regular contact with the Deceased. 79 In this regard it must be recognised that Andrew and Davina are the chosen objects of the testamentary beneficence of the Deceased. They do not have to prove anything. Even if, as asserted by the Plaintiff, they did not have a close or affectionate relationship with their grandfather, that fact could not in any way enhance the claim of the Plaintiff. The Plaintiff cannot improve his own claim by establishing (if such be the case) that the chosen objects of the testamentary beneficence of the Deceased, had they been omitted from provision by the will, would not have been successful in a claim under the Family Provision Act. The Plaintiff must establish his own claim upon its own merits. 80 Andrew is in very difficult financial circumstances. He is separated from his wife, and is contributing toward the upkeep of two young children and his wife. His wife is bankrupt. He himself has entered into a Part X arrangement. He has little, if anything, in the nature of assets, apart from a motor vehicle, and a superannuation entitlement. His grandfather relied upon him in business and financial matters after the death of the Deceased's wife. He had a significant claim upon the testamentary bounty of the Deceased, which was recognised by the terms of the will. I am satisfied that Andrew had a close and affectionate relationship with the Deceased. The Deceased wished to give to each of his grandchildren provision for their advancement in life. 81 Davina also, I am satisfied, had a close and affectionate relationship with her grandfather. She is a young mother, who suffers significant health problems, which may impact upon her ability to have further children. She and her partner are attempting to make their way in life. 82 I consider that each of Andrew and Davina is entitled to a benefit which will provide for their advancement in life. In my conclusion the benefit given to them under the will of the Deceased is adequate in providing for such advancement and should not in any way be diminished or eroded by an order for provision in favour of the Plaintiff. 83 I consider that, even if the Plaintiff had established that he had been left without adequate provision for his proper maintenance and that he had otherwise established an entitlement to an order for provision, the competing claims of Andrew and Davina are such as would have the effect of totally extinguishing any such benefit to which the Plaintiff might otherwise have established an entitlement. 84 It follows, therefore, that the claim of the Plaintiff will be dismissed. 85 I make the following orders: 1. I order that the summons be dismissed.

Mayfield v Public Trustee

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Judgment (13 paragraphs)

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