McDougall v Rogers; Estate of James Rogers

Supreme Court of NSW|2006-05-25|Before: Brereton J, Young J, Powell J

CITATION : McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484

DECISION : Claim dismissed. No order as to plaintiff's costs. Defendant's costs to be paid out of the estate.

CATCHWORDS : SUCCESSION - FAMILY PROVISION - claim by adult son of first marriage -estate left to widow of second marriage - plaintiff estranged from deceased following his parents' divorce and assumed name of his stepfather - whether estrangement is conduct disentitling - plaintiff able to support himself but in marginal circumstances - where plaintiff may in case of need expect support and provision from mother and stepfather - competing claim of widow - primacy of deceased's obligation to widow - where estate insufficient to provide adequately for maintenance of widow - obligation to maintain widow prevails over any obligation to advance adult son - summons dismissed - COSTS - unsuccessful claim by adult son - where claim not unreasonably brought - where adverse costs order would falsify finding that plaintiff was able to support himself - no costs order made against plaintiff.

LEGISLATION CITED : Family Law Act 1975 (Cth), s 79 Family Provision Act 1982 (NSW), ss 6, 16, 20, 33

Court v Hunt (NSWSC, Young J, 29 October 1987, unreported) Elliott v Elliott (NSWSC, Powell J, 18 May 1984, unreported; affirmed NSWCA, 24 April 1986, unreported) Golosky v Golosky (NSWCA, 5 October 1993, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 Luciano v Rosenblum [1985] 2 NSWLR 65 Palmer v Dolman [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 CASES CITED : Re Bodman [1972] QdR 281 Re De Feu, decd [1964] VR 420 Re Fulop (1987) 8 NSWLR 679 Re Kennedy, decd [1920] VLR 513 Re Klease [1972] QWN 44 Singer v Berghouse (1994) 181 CLR 201 Smith v Woodward (NSWSC, Macready M, 9 September 1994, unreported) Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Wentworth v Wentworth (NSWCA, 3 March 1992, unreported)

PARTIES : James Patrick McDougall (plaintiff) Margaret Anne Rogers (defendant)

COUNSEL : Ms R Winfield (plaintiff) Mr B Skinner (defendant)

SOLICITORS : Papantoniou & Associates (plaintiff) Russo & Co (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1261/05 James Patrick McDougall v Margaret Anne Rogers; Estate of James Rogers

1 HIS HONOUR: The deceased James Rogers, who died on 10 April 2004, was twice married: first to Janice Patricia Teefey - now, McDougall - from whom he was divorced; and secondly to Margaret Anne McNamee - now Rogers - his widow and the defendant. The plaintiff James Patrick McDougall ("Jamie") was the only child of the deceased's first marriage; there are no children of the marriage to Mrs Rogers. By his Will, dated 7 May 2001, probate of which was granted to Mrs Rogers on 27 August 2004, the deceased appointed Mrs Rogers to be his executor and trustee and gave all his real and personal estate whatsoever and wheresoever situate to her. Jamie contends that he has been left with inadequate provision for his proper maintenance, education and advancement in life, and claims provision out of the estate for those purposes. The Estate disputes that he has been left with inadequate provision and submits that none should be made for him, particularly having regard to the deceased's obligation to make provision for his widow Mrs Rogers, and to the estrangement between Jamie and the deceased.

2 The deceased was born on 6 April 1941. When he died on 10 April 2004 he was 63 years of age. He married Jamie's mother Mrs McDougall on 11 February 1967. In December 1969, they acquired Karuah Street, which they thereafter occupied as their home.

3 Jamie was born on 21 November 1971, and is now 34 years of age. In 1974, at the age of three, he contracted meningitis and was hospitalised for ten days; this illness appears to have affected his cognitive skills, and he experienced learning difficulties and was a slow learner throughout his schooling. However, the deceased did not accept that Jamie had learning difficulties, and chastised him for his poor performance at school.

4 Nonetheless, during his childhood, Jamie and his father generally got on well. The deceased worked long hours, but this did not prevent them enjoying a good relationship, although there were fluctuations, with the deceased happiest when he had a win at the races, which he enjoyed. However, there must have been tensions in the household culminating in the separation of Jamie's parents, and it is improbable that Jamie was not, at least to some extent, exposed to them.

5 In late 1984, the deceased commenced a relationship with Mrs Rogers (whom he had first met years earlier), which continued until his death. He and Mrs McDougall separated, initially under the one roof, in 8 March 1985. By deed poll made on 2 April 1985, Mrs Rogers assumed the name of Rogers. On 4 October 1985, Mrs McDougall and Jamie left Karuah Street, where Mrs Rogers moved in the next day. She has lived there ever since, a period of more than twenty years.

6 On 9 October 1985, orders were made in the Family Court of Australia that the deceased pay Mrs McDougall $105,000 in return for a transfer of her interest in Karuah Street. On or about 19 December 1985, Mrs McDougall, upon receipt of that payment, transferred her interest in Karuah Street to the deceased. The evidence does not enable me to say what proportion of their assets this adjustment represented, but I should infer that it was a just and equitable adjustment having regard to the factors relevant to an adjustment of property interests under Family Law Act, s 79, including not only the respective contributions, financial and non-financial, direct and indirect of the deceased and Mrs McDougall to the acquisition conservation and improvement of their property and to the welfare of their family, but also their future means and needs - including, in favour of Mrs McDougall, that she would have primary responsibility for the care of Jamie.

7 Following the separation, Jamie had fortnightly weekend contact with the deceased, which seems to have proceeded quite satisfactorily until about October 1987. Four courses of events then culminated in contact ceasing on 28 October 1987, when Jamie attended at the deceased's home to collect a computer. That was the last occasion on which they had physical contact.

8 First, on 10 September 1987, a decree nisi for dissolution of the marriage between the deceased and Mrs McDougall was pronounced. It presumably became absolute on 11 October 1987.

9 Secondly, in or about October 1987, Jamie was sitting the School Certificate examination. He sat the English and Mathematics examination, but did not complete the remainder of subjects and left school. The deceased pressed him to remain at school, but Jamie did not wish to do so.

10 Thirdly, Jamie says that the deceased and Mrs Rogers drank to excess on Saturday nights when he was visiting. He says that they shared a bottle of Jim Beam each Saturday night. Mrs Rogers said that they did have a drink on Saturday, but that Jamie's version is exaggerated. Jamie says that on one occasion he observed Mrs Rogers drunk, naked and vomiting in the house, and that this disgusted him to the point that he was not prepared to continue to see his father if Mrs Rogers was present. Mrs McDougall says that Jamie reported such an account to her, but there was no reference to it in an affidavit that she swore in family law proceedings in October 1988, in which she sought to explain Jamie's estrangement from the deceased. Mrs Rogers denied that it ever happened. Jamie also says that the deceased was making statements demeaning his mother's new partner, Mr McDougall. Mrs Rogers says she never heard any such thing, although the deceased was occasionally negative about Mrs McDougall.

11 I am not persuaded, on the probabilities, that any event as extreme as that described by Jamie ever occurred. The reasons advanced by Mrs McDougall, in her 1988 affidavit, for the estrangement between Jamie and his father did not involve any allegations concerning excessive use of alcohol of the type which feature now, and it is inconceivable that such allegations would not have been made in that context if there were then a basis for them. Then, the allegation was that Jamie was upset that his father was "bad mouthing" Mr McDougall, and that he hated Mrs Rogers and did not understand how his father could live with an "awful woman like that" - all of which reflects Jamie blaming the deceased and Mrs Rogers for the destruction of his family, but not making allegations of drunkenness. On the other hand, the circumstances of the divorce and impending remarriage of Mrs McDougall and the dispute about Jamie's schooling, corroborated by the contemporaneity of the allegation recorded in Mrs McDougall's 1988 affidavit, make it probable, and I accept, that from time to time the deceased, in Jamie's presence, made observations of a negative type about Mr and Mrs McDougall.

12 Fourthly, Mrs Rogers says that at about this time, at the end of a contact visit, Jamie asked the deceased to sign a consent to Jamie changing his name to McDougall, and that the deceased was not prepared to do so, and was very distressed by the request. According to Mrs Rogers, in about September 1987 Jamie was staying one weekend, and when about to leave on the Sunday afternoon, as his mother arrived to collect him, pulled something out of his bag which he had waiting at the door, and said to the deceased "Dad can you sign this for me?". The deceased said "Jamie, you can't expect me to really sign this. You can change your name if you like, but don't ask me to do it, and you will always be my son, anyway, regardless of what you call yourself". Jamie left with the form in his bag, and the deceased went into the backyard to the aviary, totally devastated. Jamie denies that he ever asked his father to consent to a change of name. Mrs McDougall suggested no question of a change of name arose until sometime after she and Mr McDougall were married (which was on 2 January 1988), though she conceded that they contemplated marriage at least a couple of months before then.

13 The chronology of events, and several contemporaneous documents, cast some light on this issue. First, it has already been recorded that the marriage of the deceased and Mrs McDougall was resolved by decree nisi pronounced on 10 September 1987. While it is far from conclusive, in the context where there had been no rush to divorce immediately following twelve months' separation, it may well be that the divorce was prompted by contemplation of remarriage, or that the divorce at least raised the possibility of remarriage - and, in Jamie's mind, of what would be his name in that event. Secondly, on 3 May 1988, Gillis Delaney Solicitors, who then acted for the deceased, wrote to Patrick G Quinlan & Co, who were acting for Mrs McDougall, inter alia as follows (emphasis added): As to your letter of the 15th March, 1988 we note that James left school at the end of 1987 and has not resumed any form of education.

Our client is not aware of any physical or mental incapacity of James for appropriate gainful employment. Indeed on the last occasion that our client had the opportunity of speaking to James in October, 1987 he offered to obtain employment for James in the building industry ranging from a labourer or a clerk or as a trainee. This offer was declined by James who asked our client for our client's permission for him to change his name to McDougall .

Our client is not "well aware of James' situation" as he has no opportunity of conversing with James since October, 1987.

Should James still recognise our client as his father our client would be only to happy to see James at any time and to discuss any problems and to offer any help and assistance both financial and otherwise but in view of your letter it is obvious to our client that James does not wish his assistance and accordingly our client does not propose to intrude into your client's household by making contact with James.

14 Thirdly, a psychological report on Jamie by W J Taylor, dated 13 July 1988, apparently obtained in the context of the dispute about his attending school or obtaining employment, refers to him as "James McDougall". Fourthly, on 7 September 1988, Gillis Delaney wrote to Patrick G Quinlan, relevantly as follows (emphasis added): We note that the report of Mr Taylor relates to James McDougall. We are instructed our client has not given permission for James to change his name. We are further instructed that our client's sister and nephew have communicated with James and requested James to communicate with our client at least in respect of Fathers' Day. We are instructed that James left a message to the effect that he would not be communicating with our client and that he requested our client to dispatch to him a quantity of compact discs as James had acquired his own compact disc player.

15 Fifthly, on 7 October 1988, Mrs McDougall swore an affidavit in family law proceedings between herself and the deceased, in which she deposed that Jamie had ceased attending high school in October 1987, and at about the same time ceased seeing his father on any regular basis. [While, in her oral evidence before me, she suggested that it was not until early 1988 that Jamie stopped seeing his father, I prefer what she said in her 1988 affidavit, much closer to the event, which is corroborated by the contemporaneous correspondence referred to above]. She deposed that after his last weekend contact, Jamie appeared very distressed when he came home, and complained that his father was "bad mouthing" Mr McDougall, and said "I hate my father because of what he has done to us", and in several subsequent episodes "I don't wish to see my father any more. I hate the woman he lives with. I don't know how dad can live with an awful woman like that. I don't want to go there any more". She deposed that from about that time, Jamie ceased to attend school, and that (emphasis added) "I have not at any time encouraged Jamie to change his name although he has asked me if he could do so on many occasions".

16 On this issue, I found the oral evidence of Mrs Rogers persuasive. It is corroborated by the more or less contemporary letter of May 1988. It is consistent with the chronology of a relatively sudden breakdown in the relationship in about October 1987. Mrs McDougall's evidence savoured of rationalisation having regard to the date of her marriage to Mr McDougall, rather than recollection. Accordingly, I accept that Jamie asked the deceased to consent to Jamie changing his name to McDougall, and that the deceased declined and was very distressed, in circumstances as described by Mrs Rogers.

17 The last contact of any sort between Jamie and the deceased was a telephone conversation on or about 17 February 1988, in which the deceased said something to the effect, "You are always welcome here, but I want you to apologise for the way you have treated me and explain why you have cut me off completely". According to Jamie, he told the deceased that he was not prepared to visit him if Mrs Rogers was there. The deceased's failure to accede to this stipulation was seen by Jamie as a choice by the deceased for Mrs Rogers over him. According to Mrs McDougall, after this conversation, Jamie said to her "Now I know dad really doesn't want me. Dad said my job is a dead-end one. He also said that he had burnt my birthday and Christmas presents in his incinerator and I am wasting my time ringing him anymore. All he does is yell at me mum, so I will do what he says and not ring him again". From that point, Jamie regarded the relationship as at an end, and he never took any step towards re-establishing it. Nor, for that matter, did the deceased.

18 On 2 May 1989, Jamie executed an instrument evidencing change of name, by which he changed his name from James Patrick Rogers to James Patrick McDougall. His mother witnessed its execution. It is clear from the correspondence referred to above that this was without the deceased's consent and contrary to his wishes. Jamie attained 18 years of age on 21 November 1989.

19 In 1990, the deceased was hospitalised with an aneurysm. Jamie did not learn of this for some months, but took no step to visit or speak to the deceased when he did.

20 On 31 December 1996, Mrs Rogers ceased employment, as she and the deceased had planned. They married on 3 May 1998. The deceased retired on 10 December 2003. He and Mrs Rogers were planning to sell the Karuah Street property with a view to moving to Queensland, but these plans were defeated by his death on 10 April 2004.

21 On 12 May 2004, Papantoniou & Associates, solicitors acting for Jamie, wrote to "the occupier" of Karuah Street, asserting that they had been instructed that their client Jamie was the only child and beneficiary of the deceased, and was not aware of the existence of a Will, or that the deceased was in a de facto relationship in the last two years prior to his death.

22 The estate comprises the deceased's former home, in which Mrs Rogers continues to reside, at 8 Karuah Street, Strathfield, agreed to be worth $1,050,000; $500 in a bank account; and an Audi motor vehicle admitted by Mrs Rogers to be worth $2,000 - a total of $1,052,500. Its liabilities are a mortgage debt to the National Australia Bank secured on Karuah Street of $264,139, together with debts claimed by Mrs Rogers totalling $768 for commemorative cards and a headstone. [It became apparent in the course of her cross-examination that debts originally claimed by Mrs Rogers for funeral expenses and probate costs had in fact been paid out of the estate]. The net estate is therefore $787,593.

23 In addition, the deceased had a superannuation policy, which was disclosed in the original probate as an asset of the estate worth $518,469. It was also disclosed as an asset of the estate, then said to be worth $582,000, in the executor's affidavit. However, Mrs Rogers obtained some advice to the effect that the form of nomination in favour of the estate might have been invalidly witnessed, and that she might be able to direct payment of the policy to her. She has received quarterly payments of $10,000 from the superannuation fund, and in her up-dating affidavit deposed that the trustees of the fund had resolved that she was entitled to the fund, which by then had decreased in value (apparently as a result of the quarterly payments, and share market movements) to $433,085. Although doubt attends the correctness in law of the position which Mrs Rogers has adopted in that regard, it is unnecessary to resolve it, or to consider whether the fund could be designated as notional estate, because the parties are agreed that, for the purpose of determining the value of the estate, the superannuation fund should be treated as if it were an asset of the estate, and the other assets of the estate are more than sufficient to fund any provision which it might be appropriate to make for Jamie, without recourse to the superannuation fund. Including the superannuation fund, the net estate before costs is $1,220,677.

24 Jamie's costs are estimated at $40,000 - $50,000, and the Estate's at $45,000 - $50,000. Using the mid-point of each range, upon the assumption that all those costs are paid out of the Estate, the net distributable estate would be $1,128,097. Under the Will, all of it passes to Mrs Rogers.

25 Jamie is now 34 years of age. After he left school in 1987, until 2000 he was engaged only in voluntary and/or part-time employment. In October 1987 the deceased had offered to find Jamie employment, but it was implicit in that offer that Jamie would have to live with the deceased and not his mother; Jamie declined to do so, and I do not consider that in any way unreasonable. In June 1989, Jamie was diagnosed with Thomsen's disease, a muscular stiffness; in October 1995, he was diagnosed with Bowen's patch, which was excised; and on 1 August 2003, Jamie was diagnosed with neurofibromatosis, and skin cancer, which has been treated. In the light of this and of the psychological material, referred to in greater detail below, which evidences his cognitive difficulties and intellectual and emotional immaturity, I do not accept that his failure to secure full-time employment before 2000 reflects in any way adversely on him, or was in any way unreasonable.

26 During 2000, Jamie obtained employment with Bi-Lo, and has retained that employment since. Since September or October 2005, he has occupied the position of Night-fill Manager at Bi-Lo Broadway, earning $560 net per week. He works from 3pm to midnight three days a week, and 10am to 7pm two days a week. With his girlfriend of about twelve months, Ellen Yosephine, Jamie occupies a unit in Pyrmont, for which he pays rent of $350 per week. Ellen works at Bi-Lo as a casual, and has savings of about $3,000. They share the purchase of food and household supplies, and Jamie pays the other household bills. At present he spends about $100 per week on groceries and about $100 on general living expenses. His current earnings approximately equal his expenditure.

27 Jamie's assets, which total $15,760, comprise $760 in the bank, a life policy with a surrender value of $12,000, and furniture fittings and effects of about $3,000. In the last twelve months, he has expended about $11,000 of the savings that he had by then accumulated from his employment while living with his mother, in order to acquire furniture and pay a bond for the Pyrmont unit. He has a superannuation entitlement, the value of which is not known, but given that he has been in employment only for a few years, and given his age, is of no practical present significance. He has a debt to Digicall of $150 and owes $5,000 on his MasterCard. Accordingly, his net assets are about $10,600.

28 Jamie continues to suffer from basal cell carcinoma, a life long problem which will require constant treatment and which limits him to indoors work; neurofibromatosis, also a life long problem, which requires regular checks, but usually does not result in significant disability; and myotonia (or muscle stiffness).

29 Mrs Rogers, who was born on 11 October 1950, is now a 55-year-old widow, retired from employment, and in reasonable health. She continues to reside in the estate's property at Karuah Street, which has been her home for more than twenty years. Other than her interest in the estate and the deceased's superannuation, her assets comprise only cash at bank of $6,200. Her only income is $10,000 per quarter, which she has been receiving from the superannuation fund in the circumstances described above. Her claimed outgoings of $4,536 per month include mortgage repayments of $1,700 per month, which she has not in fact been paying, with the consequence that the mortgage debt has increased since the death of the deceased.

30 Although, as has been mentioned, before his death the deceased and Mrs Rogers were planning to sell Karuah Street (indeed, the property was listed for auction in the week of the deceased's death), repay the mortgage (which had been incurred in 2003, to bolster the superannuation fund by $200,000), move to Queensland and purchase a cheaper property, and establish and live-off a self-funded retirement plan, using the superannuation fund and any surplus funds left from the sale of Karuah Street, Mrs Rogers, as she has no contacts in Queensland, now intends to remain in Sydney, and to purchase a home that she can afford without a mortgage. She says, although the evidence is very slight, that such a home would cost not less than $700,000 to $750,000. The agent's commission and legal costs on selling Karuah Street would be about $23,385, and the costs and duties on acquisition of a replacement property worth about $750,000 would be $31,716.

31 In Singer v Berghouse (1994) 181 CLR 201, 208, the High Court described the approach of a Court to the exercise of jurisdiction under the Family Provision Act in respect of an eligible person as involving a two stage process, the first stage requiring a determination of the jurisdictional fact whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and the second, which arises only if the first is resolved affirmatively, requiring a discretionary decision as to what provision ought be made out of the estate for the applicant. However, as the High Court explained, similar considerations inform both stages of the process:- The determination of the first stage in the two stage process 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. 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.

32 The approach of the court was concisely described by McLelland J (as he then was) in Re Fulop (1987) 8 NSWLR 679, as follows:- In making these determinations, the following principles apply: first, the court should not interfere with the dispositions in the Will ... except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life; secondly, the expression "proper" in this context connotes a standard appropriate to all the circumstances of the case; and thirdly, the court may take into consideration any matter (whether existing or arising before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff, (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased ... and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.

33 Because the considerations relevant to both stages in the process overlap in this way, consideration of an application under the Act does not always divide neatly into the two questions, as Callinan and Heydon JJ pointed out in Vigolo v Bostin (2005) 221 CLR 191, 231. Nonetheless, in an application under the Act, the Court must consider, first, whether the Plaintiff is an eligible person; secondly, whether the Applicant has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what, if any provision (or further provision) ought to be made out of the estate for those purposes.

34 Jamie, being a child of the deceased, is an eligible person in category (b) of the definition of that term in s 6 of the Act, and accordingly has standing to make an application under the Act for provision out of the estate of the deceased.

35 These proceedings were commenced by summons filed on 31 January 2005, within the time limited by s 16 of the Act.

36 The only other eligible persons are Mrs Rogers (category (a)), and Mrs McDougall (category (c)). Mrs Rogers is the defendant in the proceedings and seeks to uphold the will under which she is the sole beneficiary. Mrs McDougall, who has been given the appropriate notice of the claim, has supported Jamie in bringing it, and has been a witness for Jamie in the case; as she has not sought provision out of the estate, her interest may, under s 20 of the Act, be disregarded.

37 Jamie received no provision out of the estate of the deceased. He will therefore have been left with inadequate provision unless, according to community standards, a wise and just testator in the position of deceased but with the benefit of knowing the matters known to the Court, including those which have transpired since death, would not have been regarded as obliged to make provision for him. Whether the deceased ought to have made provision for Jamie is influenced by a number of the factors described in the passages cited above from Singer v Berghouse and Re Fulop, in particular the totality of the relationship between Jamie and the deceased, including the conduct of Jamie towards the deceased; the totality of Jamie's circumstances, including the nature and extent of his present and reasonably anticipated future needs; and the nature and strength of Mrs Rogers' claim to testamentary recognition; all in the context of the size and nature of the estate.

38 Although until October 1987 Jamie appears to have enjoyed a good relationship with his father, after that there is only the "mere circumstance of paternity". While this may be a not insignificant starting point [see Gorton v Parks (1989) 17 NSWLR 1], in this case its force is diminished by Jamie's renunciation of the relationship, including by his change of name. Before reaching the age of 18, Jamie repudiated his relationship with his father by changing his name, against his father's wishes, to that of his stepfather. He set as a condition for any further contact that his father must exclude from the house, or the locality of contact, his new partner. When the deceased refused to submit to that demand, Jamie regarded their relationship as at an end.

39 The conduct of a claimant towards the deceased is a relevant factor in determining whether proper maintenance or support has been provided, and also, if it has not, in determining what provision should be made [Goodman v Windeyer (1980) 144 CLR 490, 497 (Gibbs J); Singer v Berghouse (1994) 181 CLR 201, 209-210; Palmer v Dolman [2005] NSWCA 361, [105]-[106]]. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, a son who had not seen his father for 46 years, had no recollection of him and had never attempted to communicate with him, and was not a person in need, was held by the High Court, overturning the trial judge, to be a person disentitled from making a claim. But a wise and just testator recognises that disharmony between parent and child, and disappointment in a parent's hopes and expectations, are unexceptional and almost inevitable, and such circumstances do not abrogate the obligation of a parent to provide on his death for a child's needs for maintenance and advancement in life [Kleinig v Neal (No. 2) [1981] 2 NSWLR 532, 540]. These obligations of a parent are not avoided by parental repudiation or evasion of the relationship with the child [Gorton v Parks].

40 This is not a case in which the parent repudiated his parental obligations to the child, but one in which the son rejected a relationship with his father. The circumstance that an adult child repudiates his or her relationship with a parent, is relevant as part of "the totality of the relationship between the applicant and the deceased". Nonetheless, as Young J (as his Honour the Chief Judge then was) pointed out in Walker v Walker (NSWSC, 17 May 1996, unreported), orders have been made in favour of adult sons who have had no contact with their deceased father for a long period, as in Smith v Woodward (NSWSC Macready M, 9 September 1994).

41 In Wentworth v Wentworth (NSWCA, 3 March 1992, unreported), the Court of Appeal (Samuels AP, Priestley JA and Handley JA) upheld the conclusion of Bryson J at first instance that the testator's moral obligation to the claimant was not extinguished by most extreme and extraordinary misconduct towards him. Bryson J, in a passage which was cited with approval by the Court of Appeal, after pointing out that long periods of hostility or estrangement do not necessarily mean that an application for provision must fail, and that it is always necessary to consider the extent to which the parent has contributed to the estrangement, said: If the plaintiff had any real control over her conduct and her engagement in argument and conflict, this behaviour would have extinguished the testator's duty to make provision for her. But she cannot stop herself. The plaintiff's propensity for involvement in conflict and litigation has elements of a disability, an incapacity for successfully grappling with life, and the plaintiff's claim is in the special class of claims by adult sons and daughters who are in some way disabled and in need of favourable parental treatment.

42 However, Young J has explained, in Walker v Walker, why there is little purpose in analysing whose fault the estrangement is: In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

43 In the present case, the estrangement appears to have arisen as a result of Jamie's unilateral and unwelcome (to the deceased) decision to change his name, and the deceased's (in my view entirely reasonable) refusal to submit to Jamie's condition for any further contact (that Mrs Rogers not be present). In his oral evidence, Jamie said more than once that his father had chosen Mrs Rogers over him; in my assessment, Jamie perceived his father's refusal to submit to his condition for contact in that way. Such a perception, though unfair, is not unexpected on the part of a child in the Jamie's circumstances following his parents' separation. He was only 16 years of age, grappling with the consequences for him of his parents' divorce and his mother's impending remarriage and his father's re-partnering; and all at a time when, according to a psychologist's report obtained in 1988, he was performing intellectually at a standard which corresponded with eleven to 11½ years of age, his level of intellectual function being in the borderline area between low average and mild mental retardation, and, most significantly, was socially and emotionally immature, as the psychologist reported: He is somewhat socially and emotionally immature, consistent with his low level of intellectual functioning: that is, he appears to share attitudes and perceptions which are commonly found among people of a younger age than himself. He seems to be naïve in evaluating his own and other people's motivations. He also tends to suppress or repress problems and is lacking insight.

44 The psychologist concluded that Jamie (then) had some adjustment difficulties, with quite an immature personality and very little insight concerning his problems. In the turbulent emotional context of the divorce of his parents, for which he apparently blamed his father and Mrs Rogers, and to cope with which he was then emotionally and intellectually ill-equipped, it is unsurprising that he took a simplistic approach which involved rejection of his father. Although it is regrettable that, with increasing maturity, he made no subsequent effort to repair the relationship, being as close to his mother as he is he would have felt under implicit pressure to continue to shun his father. In those circumstances, I do not think that, however objectively unreasonable his behaviour towards his father might appear, it was such as to extinguish any moral obligation his father otherwise had to make provision for him, and I would not, on account of the estrangement between him and his father, conclude that the court was precluded from being satisfied that the provision made for him was inadequate. Although, as the claimant's conduct towards the deceased is relevant at the second stage in considering what provision should be made, as well as at the first, and may diminish the extent of the child's moral claim [Palmer v Dolman [118]], the fact of the estrangement remains relevant to evaluating whether the circumstances as a whole were such as to impose on the deceased an obligation to make provision for Jamie, and, if so, to what if any provision should be ordered, the estrangement is not a decisive factor in this case.

45 While Jamie and his girlfriend are able (just) to support themselves in the sense of making ends meet, there is little prospect of their advancing themselves in life in their current circumstances. Jamie's intellectual and cognitive weaknesses must limit his earning capacity in the future, and his medical conditions, which exclude him from outdoor work, also impose some constraints on his future employability.

46 On the other hand, in the way in which his life has developed, it might be said that, to the extent that Jamie is entitled to expect maintenance and/or advancement from others, there are persons other than the deceased to whom, in case of need, he can look. Jamie's mother has herself received, by way of her property settlement with the deceased, a substantial provision out of their former joint matrimonial estate, which, I have inferred, took into account her anticipated primary responsibility for Jamie's care. Her estate, it might reasonably be anticipated, will devolve, at least in part, on Jamie; her present testamentary intention, as evidenced by her current will dated 21 October 2003, is that her home at Kings Langley, of which she has been the sole proprietor since she acquired it in 1985, will be devised in equal shares to Jamie and Mr McDougall, or entirely to Jamie if Mr McDougall dies first. Given the financial adjustment which has already taken place between the deceased and Mrs McDougall, and the allegiances and relationships which Jamie has pursued consequent upon the separation of his parents, it is reasonable to see Mrs McDougall as having an obligation at least equivalent to that of the deceased for Jamie's future maintenance and advancement, to the extent that any may be appropriate. Jamie may also, if to a lesser extent, reasonably expect support and provision from his stepfather Mr McDougall, in respect of whom he is an eligible person in category (d) - particularly in the event that Mr McDougall inherits from Mrs McDougall assets that she introduced as a result of her property settlement with the deceased.

47 Against Jamie's claim to testamentary recognition must be set the powerful competing claim of the deceased's widow, Mrs Rogers. The circumstance that this is not the widow's application, but that she is defending a claim against an estate of which she is the sole beneficiary, far from diminishing the strength of her competing claim, if anything enhances her position above that which she would have enjoyed as an applicant.

48 The primacy of a testator's obligation to make provision for his widow, and the content of that obligation, has been often stated [see, for example, Luciano v Rosenblum [1985] 2 NSWLR 65, 69; O'Loughlin v O'Loughlin [2003] NSWCA 99; and the cases referred to below]. In Elliott v Elliott (NSWSC, Powell J, 18 May 1984; affirmed NSWCA, 24 April 1986) the plaintiff was a widow of 79 who had had a happy marriage. Powell J gave the widow the whole of the relatively small estate, and the Court of Appeal indicated that not only was that within his Honour's discretion, but it was really the only proper order that could be made. Powell J (at 11), in a passage which was endorsed by Young J in Court v Hunt (NSWSC, Young J, 29 October 1987), described a testator's duty to his widow of a long-standing and harmonious marriage as requiring, as a minimum, provision of security in her home for the rest of her life, and the capacity to change it; an income sufficient to enable her to live in a reasonable degree of comfort; and a fund for modest luxuries and contingencies: I take the view - which view I believe, is supported by the authorities - that, in a case such as this, where the marriage of a Deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up and maintain his estate, the duty which the Deceased owes to his widow can be no less than (to the extent to which his assets permit him to achieve that result) first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises, or the whim strikes her, she has the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort, and free from any financial worries; and, thirdly, that she has available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring.

49 This was echoed by the Court of Appeal in Golosky v Golosky (NSWCA, 5 October 1993), in which Kirby P, with whom Cripps JA agreed, said (at 16) that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse is provided with accommodation appropriate to that to which she has become accustomed, and (to the extent that the assets available permit) a fund to meet unforeseen contingencies:- Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it has been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the Deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano v Rosenblum , 69-70. A mere right of residence will usually be an unsatisfactory method of providing for a spouse, accommodation to fulfil the foregoing normal pre-supposition.

50 In this case, application of that approach would mean that the deceased's obligation to Mrs Rogers was to ensure, so far as his assets would permit it, that Mrs Rogers could retain their Karuah Street home, and have a source of income and fund for contingencies. While she does not now wish to remain in Karuah Street - because she believes that she cannot afford to maintain the mortgage repayments in respect of it and still have sufficient income for her living expenses - and so proposes to "down size", with a view to purchasing accommodation in the same vicinity for about $750,000 and living off such capital as is left from the proceeds and the superannuation, that does not diminish the deceased's obligation to provide for her.

51 At age 55, Mrs Rogers has (according to the 1995-97 Australian Life Tables) a life expectancy of 28 years. If the net distributable estate and superannuation are added to her own assets, Karuah Street is sold, and replacement accommodation purchased for $750,000, she would have remaining, after the costs of sale and acquisition, a fund of about $330,000 which, for a life expectancy of 28 years, is equivalent, on the 3% tables, to a weekly income of $335. That is less than one-third of average adult weekly adult ordinary time earnings, and only half of Mrs Rogers' current weekly outgoings (after disregarding mortgage repayments) of about $655, and would be available only as a result of a significant reduction in the standard of Mrs Rogers's accommodation.

52 Accordingly, the provision left for Mrs Rogers, though all that the deceased could do, does not in fact meet the standard referred to in cases such as Elliott, Luciano and Golosky.

53 All the foregoing must be seen in the context of the size and nature of the estate, which is insufficient to satisfy the deceased's primary obligation to his widow, let alone to permit provision to be made for Jamie as well.

54 Despite Jamie's marginal financial position and other circumstances, in which a legacy by way of advancement would in other circumstances be plainly appropriate, in this case the primacy of the deceased's obligation to his widow, and the insufficiency of his estate adequately to discharge that obligation, combined with the circumstances that Jamie is able to support himself and in case of need may reasonably look to his mother and stepfather for support and provision, result in the conclusion that a wise and just testator would not have made provision for the advancement in life of Jamie - not because of the absence of a reasonable need for advancement, but because the available resources did not permit it after satisfying the primary obligation to make proper provision for the maintenance of the widow. At least generally speaking, obligations to maintain are of a higher priority than obligations to advance. The deceased was not obliged to make provision, out of his limited resources, for the advancement in life of Jamie, because he had first to make provision for the maintenance of his widow, and his estate was insufficient adequately to do that. In those circumstances, there was no failure to make adequate provision for Jamie.

55 Even if that conclusion were wrong, the same considerations would, at the second stage, produce the conclusion that, as a matter of discretion, the limited resources in this estate should be left to provide for the maintenance of the widow. Thus if I were to have concluded that Jamie had been left with inadequate provision, nonetheless in considering what provision ought to be ordered, I would, for the reasons summarised in the preceding paragraph, decline to order that any provision be made for him.

56 Although ordinarily an order that Jamie pay the costs of the estate would follow, in the context of proceedings for family provision that is not invariably the case. While s 33(1) of the Act has the effect that the costs of family provision proceedings generally are in the discretion of the Court, it is implicit in the restrictions imposed by s 33(2) and s 33(3) that the court may award costs in favour of an unsuccessful applicant where the applicant is the spouse, de facto spouse or child of the deceased, if there is good reason.

57 The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious and reasonable, for example where a claim by an adult son for provision failed for want of establishing need, despite a substantial contribution or expectation basis for some testamentary benefit [Re Bodman [1972] QdR 281, 288; Re Klease [1972] QWN 44]. Or the court may decline to make an order for costs against an unsuccessful plaintiff, leaving the parties to bear their own costs [Re Kennedy, decd [1920] VLR 513; Re Klease. As proceedings for family provision are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect a financial position which had been taken into account in dismissing the application [Re De Feu, decd [1964] VR 420, 428].

58 Jamie's claim, though it has failed, was not unreasonably brought. His circumstances were such that, were the estate larger, it might well have succeeded. But I do not think that the estate, inadequate as it is for the proper maintenance of Mrs Rogers, should be further diminished by having to pay Jamie's costs of his unsuccessful application. As my calculations of the amount remaining available to Mrs Rogers assumed deduction of Jamie's costs, this will ameliorate her position by about $45,000 (or $45 per week for 28 years). I will make no order as to the plaintiff's costs, to the intent that he bear his own costs.

59 However, Jamie's financial position is fragile. In dismissing his application, I have taken into account that he is able to support himself. But he has no capacity to meet an adverse costs order, which would leave him in a truly necessitous, if not desperate, position, and would falsify one basis of my decision, that he is able to support himself. This is a case in which the balance of justice between the parties, having regard to the detrimental impact on Jamie's position which an adverse costs order would have, his status as a child of the deceased, the absence of any provision for him in the will, and the circumstance that his claim, though unsuccessful, was not unreasonably brought, justifies a decision not to make an order for costs against him.

Order that the defendant's costs on the indemnity basis be paid or retained out of the estate of the deceased.

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.

Family Provision Act 1982(NSW)

At a glance

Court

Decision date

Before

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Judgment (74 paragraphs)

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Legislation Cited (2)

Cases Cited (8)