Medlock v Cram

History 8The deceased was born in March 1921. She had three children. Beverley was born in September 1941, Lorraine in 1940 and Leon who was most likely born in 1944. 9The deceased had 10 grandchildren, they are: Leon's children - Cheryl, Toni, Joanne and Steven; Beverley's children - Vicki and Donna; and, Lorraine's children - Lynette, Karen, Wendy and Scott. 10Under the will of the deceased only some of the grandchildren received bequests. 11Cheryl was born in August 1965. Her parents separated in 1983 when she was 18 years of age. At this time, Cheryl and her sister, Toni, moved to live with the deceased at the property at Werrang Street. Joanne and Steven stayed with their mother at Warilla. 12Some months later, in 1983, after Cheryl had moved into her grandparent's house, she commenced a relationship with her now husband, Russell Medlock, which lasted approximately 15 months. Cheryl had met Russell when she had gone to live temporarily at Lithgow at the invitation of her aunt, Donna, Cheryl's mother's sister. Donna was concerned about the effects of Cheryl's parent's separation on her. Cheryl and Russel separated before Cheryl realised she was pregnant and their child, Trent, who was born in 1986. Over the next three years, Cheryl had no contact with Russell although they both remained in Lithgow. During that time, Cheryl lived in her housing commission house with Trent. 13In 1989, Leon went to Lithgow and brought Cheryl and Trent back to live in the deceased's house at Werrang Street. Cheryl continued to live at the house or close by at varying times over the next ten years. From time to time when she lived in rented accommodation she had difficulties meeting her rent. On occasion, if she had difficulties meeting her rent, she would live with her grandmother, who afforded her and the infant Trent with care. 14On 21 October 1992, the plaintiff had a second child, Bryce, to a short-lived relationship. Cheryl has had no contact with Bryce's father since before Bryce was born. Bryce's father has played no part in his upbringing . 15In 1991, Lloyd Cram, the testator's husband, died. 16In 1999, Cheryl and Russell re-established their relationship and they have lived in Lithgow with Trent and Bryce since that year. In early 1987, Russell had married and had had two children by that marriage, Joshua born in 1991 and Nicholas born in 1993. 17In mid 2001, Beverley commenced to stay overnight at the deceased's house and by 2006, she was attending the house almost every day to care for the deceased and Leon. She looked after Leon who suffered from cancer until December 2006 when he moved to live with his daughter, Toni. Leon died on 5 February 2007 aged 63 years. 18By 2007 Beverley was living fulltime at the deceased's house. On 26 May 2009 the deceased entered hospital where she made her last will on 6 July 2009. She died aged 88 on 10 July 2009. Probate of her will was granted on 11 September 2009 and these proceedings were commenced within time on 5 July 2010.

Eligibility 19Cheryl claims she is an eligible person pursuant to s 57(1)(e) which is as follows: " 57 Eligible persons (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person: ... (e)a person: (i)who was, at any particular time, wholly or partly dependent on the deceased person, and (ii)who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, ..." 20It was submitted that Cheryl was at partly dependent on the deceased between 1989 and 1999 when she lived with her children in the household of the deceased. At that time Cheryl's father Leon was also living in the deceased's home. However, Leon was not responsible for his daughter, Cheryl. 21In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency in the context of the definition of eligible person found in the Family Provision Act 1982, the predecessor to the Succession Act . His Honour Justice Samuels at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 22H is Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. " 23This passage emphasises the factual nature of dependency be it financial or otherwise. 24In Benney v Jones (1991) 23 NSWLR 559, the Court of Appeal returned to the issue in a case where the only dependency was an emotional dependency, resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship. 25In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346, the court once again considered the meaning of dependency and said: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 26In McKenzie v Baddeley (NSWSC, unreported, 3 December 1991), his Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 27In Williams v Legg (1993) 29 NSWLR 687, the Court in considering a case of a young child needing mothering, pointed out that the absence of financial dependence is not conclusive. 28During the time that Cheryl returned to live with her grandmother she would pay board of $100 per week for herself and her children. The periods of time when she lived with the dec'd were substantial and it would seem on average that when she left to live on her own she would manage for three months or six months before returning to live with her grandmother. During these periods there is clearly existed a dependency in the sense that although Cheryl contributed towards the cost of living, it could not be described as a full payment for a roof over her head that would enable her to look after her two young children. It seems that when Cheryl and her children wanted to return to Werrang Street, her grandmother was prepared to take her back. 29In my view there was a financial and an emotional dependency between Cheryl and the deceased. In these circumstances Cheryl is an eligible person. 30Under s 59 (1) (b) Cheryl must satisfy the court that there are factors warranting making the application. 31The Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression (in the context of section 9(1) of the similar, earlier, Family Provision Act ) in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 32In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 33These principles have been applied at first instance for many years. There has further attention to this matter in the Court of Appeal in the case of Brown v Faggoter , a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, gave the main judgment and seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian . I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 34The plaintiff submitted that there were factors that warrant the making of the application in this case. There are two matters that I think warrant the making of the application. First, is the fact that the deceased herself made provision for Cheryl, even though it was a small bequest. The second is that there was a continuing relationship between Cheryl and the deceased during the upbringing of Cheryl's children. As I have already indicated Cheryl continued to live at the house at varying times over the next ten years. She was always taken back into the care of the deceased and she became part of the household. 35On the tradition basis, Cheryl is an eligible person. I will also consider whether she is likely to be successful. 36In applications under the Act, the High Court has referred to the two stage approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (see also Savic v Kim [2010] NSWSC 1401). 37In Singer v Berghouse , Mason CJ, Deane and McHugh JJ stated at 208-210: "The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". .... .... 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 Ltd [1938] AC, at p 476. 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. 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 (1951) 82 CLR 645, 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." 38The question for the Court is whether there are factors that warrant a grant of further provision for Cheryl.

Cheryl Medlock 39Cheryl is aged 45 and she lives with her husband Russell Medlock, the father of her first child. She has two sons, Trent aged 24 and Bryce aged 18. They live together in rented accommodation outside of Lithgow but their parents still afford them whatever assistance they can. Russell has two sons by a previous marriage who live with their mother and who are now tertiary students. 40Cheryl and Russel live in Lithgow in a property Russell owns. There is no evidence of the value of the property but it is subject to a mortgage of $152,052.40. 41Until recently, Coles Supermarkets employed Cheryl as a sales assistant, where she earned $420 net per week. Unfortunately, she has had an operation on her throat and she is presently receiving workers compensation. Her income from workers compensation and the amount she receives from Centrelink is $395.00 per week. 42Russell previously worked as a maintenance fitter at the Mt Piper Power station until he was retrenched in February 2009. He remains unemployed and is in receipt of a Centrelink benefit of approximately $414.17 per fortnight. He does casual work and his income tax return for the year ended 2010 his income from casual work was $14,135 and he received a newstart allowance of $9,916. Russell's income is used to meet the mortgage payments of $913 per month, which they have difficulty meeting due to their other financial commitments. 43It would be hoped that given Russell's age and experience as a maintenance fitter he would obtain full-time or more work in the future. 44Cheryl had a good relationship with the deceased and they were involved in each other's lives. 45Cheryl did not contribute to the estate of the deceased and apart from extending the use of her home to Cheryl, the deceased did not provide for Cheryl. 46It is necessary to consider the situation in life of others who have a claim on the bounty of the deceased. In this case they are her two daughters, Lorraine and Beverley.

Lorraine Cram 47Lorraine is 71 years of age. She is married and has no dependents. She and her husband are retired having sold their newsagency in 2003 in order to provide themselves with self-funded superannuation. They own their home worth $600,000, two motor vehicles worth $34,000 and a caravan worth $2,000. Their superannuation amounts to $260,585. Apart from some furniture they have other cash assets and shares worth approximately $13,000. Their income is from superannuation and Centrelink benefits amounts to $916.82 per week which is consumed by their expenditure. 48Lorraine is in reasonable health although she has thyroid problems. She intends to help her sister, Beverley, fund the estate costs to enable Beverley continue to live in the deceased's home. 49Clearly Lorraine and the deceased had a good relationship and there is no evidence that she contributed to the estate or that she received any provision during the lifetime of the deceased.

Beverley Wellington 50Beverley is 69 years of age. She married in 1961 and separated from her husband in 1990 and divorced in 2006. 51Beverley has savings of approximately $30,000 and a car worth $400. She owns no real estate lives in the deceased's home. She has credit card liabilities of approximately $7,000 and she survives on the pension of $358 per week and this amount is consumed by her expenditure. She has paid $4,500 in settlement of the claim made by Toni Higgins and $15,077.80 to the estate's solicitors on account of costs and counsel's fees. As I have mentioned she and Lorraine have agreed to fund the estate solicitors on account of costs to enable her to stay in the house as long as she is physically able. 52Beverley has a friend, John Paul, with whom she has a relationship. She stays with him at Figtree for a few nights a week or on the weekend. Under cross-examination she described he relationship with John in the following way, "I have got an affection for him but not a love that you would take to marriage or anything. We are good friends." John was also a good friend and companion during the years she cared for her mother. John Paul has been married twice. Apparently, he does not intend to marry again and certainly the same applies to Beverley. When Beverley stays at Figtree with John she makes up the bed in the spare room. John does not stay with Beverley at the deceased's house. 53It will be noted that the provision for Beverley's right of residence in the deceased's house is expressed as "for as long as she wishes or until she may marry or enter into a de-facto relationship". It is part of the plaintiff's case that Beverley is in a de-facto relationship with John Paul. If one has regard to the usual factors of a de-facto relationship the following matters are relevant. On the evidence they have been friends for 13 or 14 years. They do not have common residence together and the evidence such as it is, suggests that Beverley stays with John some three or four days a week. They go out to lunch together and they go on holidays together. There is no express evidence that they have a sexual relationship. Beverley evidence gave that she makes up the bed in the spare room when she stays at John's house where she sleeps. There is no evidence of financial dependence or financial support. There is nothing to suggest they have owned property together. Such evidence of a mutual commitment to a shared life is perhaps best described as a platonic or close friendship between John Paul and Beverley. They have no children, nor do they care for any children. There is no evidence of household duties and there is no evidence of a reputed relationship nor do there appear to be any public aspects to the relationship. 54Given the present state of the evidence, I would not be prepared that they are in a de-facto relationship.

Discussion 55Cheryl asks for a legacy of $30,000, which is similar to the legacy in the will of the deceased for Beverley's daughter Vicki. She asks to be provided with that legacy now. In the submission one has the elements of Cheryl feeling that she has been treated unfairly because she had an ongoing relationship with the deceased. However, these matters are not approached by looking at what might be a fair provision or by comparing what another cousin might have received either directly or indirectly from the deceased. The court only has power to make an order for provision if the plaintiff making the application has been left without adequate and proper provision for her maintenance, education and advancement in life. 56It is apparent that Cheryl and Russell are in a difficult financial situation and the provision of some funds for them now would assist them and their children to get by until Russell is able to obtain employment. The claim has to be seen in the context of the claims on the bounty of the deceased by Lorraine and Beverley who are the children of the deceased and it must be considered with regard to the small size of the estate. 57Beverley does not own any property and she has a limited right of residence in the deceased's house. Her savings in any event will be consumed with the costs of the litigation and she is in a precarious situation. Lorraine is elderly and dependent upon her superannuation and Centrelink payments. She is in a position whereby she can give her sister support but apart from her superannuation which will no doubt decrease as her pension is paid, she has nothing else behind her. 58In these circumstances we are comparing a claim from one of many grandchildren of the deceased for some provision against a daughter's claim for somewhere to live and a claim from the deceased's other elderly daughter. 59In a large estate it is always possible to make provision for grandchildren but in this case we are dealing with a small estate. As I have indicated above leaving aside Cheryl's costs, the amount that will pass to Lorraine and Beverley on the sale of the house at today's valuation will be some $74,000 each. 60In the circumstances of a small estate where the primary beneficiaries are two surviving daughters of the deceased both of whom are in need, it seems to me there are not sufficient funds to make further provision for Cheryl. 61Accordingly, I dismiss the summons and I will hear the parties on costs.

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