HIS HONOUR: These are two applications under the Succession Act 2006 (NSW) ("the Act") for provision out of the estate of the late Mervyn Vincent Sheehan who died on 24 May 2013 aged 86. They were heard together.
This is one of the more unusual applications under this Act, or its predecessor, that I have had before me. The main determinations are whether the applicants are eligible persons; if they are eligible persons because they were members of the same household as the deceased or were financially or emotionally dependent upon him to the required extent, then whether there are factors warranting the making of their claims under the Act.
The respective plaintiffs are sisters. Sandra Payne was born on the 9 August 1943 and Diann Miller was born on 4 November 1945. Thus Sandra (I will use the people's first name not out of any disrespect, but for ease of reference) is now 72 and Diann is 70.
I heard the proceedings on 2 November 2015. Mr J T Svehla of counsel appeared for the plaintiffs and Mr C P Locke of counsel appeared for the defendant.
The case was scheduled to last four days, but counsel were particularly efficient and the argument, the evidence and the submissions finished on the first day of hearing. Nothing was lost by that.
At the beginning of the hearing, it appeared that Sandra needed a tutor. I subsequently appointed her husband as her tutor.
I indicated at the end of the hearing that I thought that Mr Svehla's submissions as to the facts were so well presented that I would, unless there was some objection by Mr Locke (which there was not), adopt them in my judgment. I accordingly do so with minor alterations.
The testator's last will and testament was made and published on 4 July 2011. It made his stepson, the defendant James Walter Ryan, his executor and left James Ryan the whole of the estate. James Ryan obtained probate on 1 August 2013.
The testator's gross distributable estate, omitting costs of the proceedings, is some $4.63 million.
The testator was married to Margaret who is known in the family as "Aunt Peggy". She predeceased the testator having died on 22 May 2011.
The plaintiffs are two of the testator's nieces.
The proceedings were commenced within the 12 month statutory period.
Each of Diann and Sandra contend that they are eligible persons within the meaning of s 57(1)(e) of the Act because they say that each was a person who at a particular time was wholly or partly dependent on the testator (s 57(1)(e)(i)), or under (ii) was at some time a member of the household of which the testator was a member.
The testator was the brother of the plaintiffs' mother Patricia Leer (nee Sheehan). Patricia was the testator's elder sister. There was a younger sister, Hilda Tonkies (nee Sheehan) known as "Aunty Hilda". The testator's father was Vincent Sheehan and his mother was Gladys Sheehan who was referred to in the evidence as "Grandma Sheehan". Vincent Sheehan died in 1935 aged 32 when Grandma Sheehan and her three children were living in a rented house at 38 Bayview Street Arnciliffe, referred to in the evidence as the "Bayview Street property".
Patricia, the plaintiffs' mother, married Sidney Edward Leer in 1941 and Sidney then moved into the Bayview Street property.
Sidney enlisted in the army and served in the Second World War from October 1941. When he was on leave he came back to Bayview Street.
On 28 January 1944 the testator enlisted in the Royal Australian Navy. He was then 16. Prior to this the testator had lived full time at Bayview Street, a house in which Sandra for the first five months of her life was also living. When the testator was on leave from the Navy he resided in the Bayview Street property.
Sidney was discharged from the army on 27 November 1945, a few weeks after Diann was born. On about 13 June 1946 the testator was discharged from the navy and recommenced living at Bayview Street. At that stage also living in the property were Grandma Sheehan, Sidney, Patricia, Aunty Hilda, Sandra and Diann.
The Bayview Street property was a small semi-detached house of approximately 12 to 13 metres squared. There were three bedrooms, one bathroom, a small eat-in kitchen, a living room and an outside laundry and toilet. Grandma Sheehan and Aunty Hilda shared a bedroom, Sidney, Patricia, Sandra and Diann shared one bedroom and the testator had the third bedroom. Crowded arrangements like this were not uncommon in the housing shortage just after the Second World War.
Aunty Hilda moved out of Bayview Street when she married Keith Tonkies in 1948. From then on Grandma Sheehan had her own bedroom.
In December 1950 Sidney was successful in obtaining a Housing Commission house at East Hills. Sidney, Patricia, Sandra and Diann moved out of Bayview Street. The testator remained there until about 1953.
It can be seen that between 1946 when the testator came out of the navy until 1950 when the plaintiffs moved with their parents to East Hills, the plaintiffs and the testator occupied the same house.
The issues in this case are:
Were the plaintiffs and the testator part of the same household between 1946 and 1950?
Were the plaintiffs dependent on the testator at any time (particularly 1946 to 1950)?
Are there factors warranting the plaintiffs making an application under the Act?
If the previous questions are answered favourably to the plaintiffs, what orders should be made on their application?
I will deal with these matters in turn.
There are a number of authorities from judges of this division and elsewhere as to what is meant by "a member of the household of which the deceased person was a member" as per s 57(1)(e)(ii).
As has been pointed out by Pembroke J in Oakes v Oakes [2014] NSWSC 1312, at [3] "the notion of 'a household' is not the same as a notion of a 'house'". The latter is a fixed and objective concept. The former is flexible, bearable and to some extent imminent. Among other things, living in the same household connotes some element of frequency of contact, some element of mutual support and some element of community of resources. That, with respect, is a fair summary of the authorities. The courts have for over 30 years discussed the term and have almost all come to the same view. In 1984 in the family law case of Re Cormick [1984] HCA 79; (1984) 156 CLR 170, at 178, Gibbs CJ considered that the word "household" was a word that encompassed more than family though in the same case Deane J seemed to be of the view that a member being a member of a household did infer some form of special familial relationship.
In Benney v Jones (Supreme Court (NSW), 13 February 1990, unrep), at page 22 I said, after reviewing Canadian and US authorities, that being a member of a household "in the broad sense of family is a collective group living in a home acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with, and an interest in the life of all that gives it a unity."
However, the most thorough discussion of the authorities was by Hallen J in Doshen v Pedisich [2013] NSWSC 1507. His Honour adopted the approach of Judge Norris QC in Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779 that one must look for "elements of permanency, involving a consideration of the frequency and intimacy of contact, an element of mutual support requiring some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes and involving an element of community of resources."
The problem for the plaintiffs here is that one of them in the period of 1946 to 1950 was aged between 3 and 7 and the other between 0 and 5. By their infancy they were not in a position where they could contribute to the running of the household or have close relationships, other than emotional relationships, with other people in the house. However, they were not employees, they were not children of employees, they were in the house because it was their parents' home. Moreover they were related by blood to Grandma Sheehan who would appear to be the head of the house. Further, there is nothing to suggest that within their limitations they did not take part in the activities of the household including, no doubt, special celebrations at Christmas and birthdays.
Mr Svehla puts the various evidence of their involvement in that household. He cites evidence that the testator looked after Diann after she had been burnt by boiling water, that he would take the plaintiffs to the park to play with his cattle dog Tarzan, he would buy them birthday and Christmas presents and would often take them for walks to the local shop and buy them ice creams and milkshakes.
In view of their infancy it seems to me that one does not look too closely at their contributions and their recognition of mutual obligations as being members of a family unit. Of course, at their tender age they would take more than they would give, but there is nothing in the legislation to suggest that a person's age or state of health would result in them being disqualified from establishing their positions as members of a household.
In my view the plaintiffs have established that they were members of the same household as the testator.
I now must consider whether the plaintiffs were at any stage dependent upon the testator.
There is evidence from each of the plaintiffs as to how the testator must have contributed his money to the family pool because it was only he and Sidney and, to a lesser extent, Patricia who were providing any monies to the household. I have great doubts about accepting this evidence. As Mr Locke points out, the plaintiffs were too young to understand what was happening with the financing of the household. It is more likely than not that the testator did give Grandma Sheehan a considerable portion of his earnings but they would not have been large, and whether or not they amounted to more than he gained by being fed and housed is unclear.
Accepting that one does not just look at financial dependence, but also the degree of emotional dependence between the parties, again I discount the evidence which the plaintiffs gave as to what they now consider to have been a close relationship. What they are giving evidence about is what happened almost 70 years ago when they were very young and there is just no corroboration of it. I will say more later about the problems caused to Courts by people claiming to recollect little acts of kindness and conversations many years afterwards.
I do not accept that there is sufficient evidence to find that on the balance of probabilities there was any dependence on the testator between 1946 and 1950 and that is the only time that really could be relevant. It is clear that Sidney and Patricia were primarily responsible for the care of their children and they appeared to have discharged it. The testator, as the plaintiffs' uncle no doubt, did give them Christmas presents from time to time, (perhaps as the plaintiffs would now have me believe more expensive than their parents could afford), however that does not amount to them being dependent on the testator.
Accordingly, the plaintiffs have not established that they are eligible persons.
The most difficult evidentiary burden for the plaintiffs is whether there are factors warranting the making of an application. Again, there are a number of authorities guiding Courts as to what they should look for when deciding this question. Not all the authorities are consistent, but the mainstream is fairly strong.
The leading case is the decision of Mclelland J in Re Fulop (1987) 8 NSWLR 679. At 681D his Honour said 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 the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased".
That was endorsed by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241, at 252 and again by a Court of Appeal of which I was a member in Evans v Levy [2011] NSWCA 125. I said in that in case at [62] and I adhere to this, that the scheme of the drafter of the current Act was to avoid the fine distinctions in the definitions of who was an eligible person by which there was the odd situation that adopted children, step children, foster children fell different sides of the eligibility line. The current Act replaced the scheme by one in which almost everyone fitted within the definition of eligible person if by any stretch of imagination they might be, but then added a filter that only allowed those persons to pass through the filter who were so close to the prime groups of eligible persons as to be entitled to be considered along with them.
The question then is whether the plaintiffs are sufficiently close to the prime source of eligible persons that members of the community would consider that the testator owed them an obligation to consider their situation when making his will. In other words, are they to be treated in much the same category as children?
Unfortunately this requires looking into the history of the relationship in some detail. In doing this, as I indicated earlier, one must be very careful about accepting non-corroborated material about conversations with the testator especially when this amounts to oral statements made many, many years ago which different witnesses repeat in virtually identical words.
I wrote, extra curially, on assessing witnesses' reliability to remember oral conversations, in (2014) 88 ALJ 7 at 8. I quoted Crouch v Hooper (1852) 16 Beav 182, at 184-5; 51 ER 747, at 748 where Sir John Romilly MR said "it is a matter of frequent observation that persons dwelling for a long time on facts, which they believe must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrence of circumstances of which, at first, they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection."
M H McLelland CJ said in Watson v Foxman (1995) 49 NSWLR 315, at 319 "Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious considerations of what should have been said or what could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again subconsciously, constructed. All this is a matter of ordinary human experience."
Again, one does not usually accept statements made against the interests of a deceased person unless there is some corroboration. Corroboration does not have to be present but, unless it is present, Courts must be very careful in accepting the evidence (see Re Hodgson (1885) 31 ChD 177).
Added to these considerations is the fact that conversations are attributed to the testator at various stages, that he would look after "you girls when the time comes" and, on a few occasions, "I will be providing for you three girls … by giving you the rest of my properties", that is the properties other than the Paddington properties.
There is no corroboration of any of those conversations though Sandra's husband Peter, an ex-Federal police officer, that he heard the testator say some such things. The evidence is weakened by the fact that the two plaintiffs and Peter set out the conversations in identical words. The odds of three people remembering conversations in identical words after a long period of time are phenomenally high against accepting that evidence. The witnesses denied collaboration. There is the possibility that this is true and that some misguided solicitor thought he or she would improve the strength of the evidence by making the conversations agree identically, but there is no evidence to support this and in any event the deponents had the opportunity of correcting the affidavits if they considered them inaccurate.
Another difficulty in accepting this evidence is that the benefit that "the girls" were to receive is stated in different terms from time to time.
Courts are also rather weary about statements of testamentary intention. I know this is referred to in s 60(2)(j) of the Act, but experience shows that, in at least some cases, testators making statements of intention are made not in the genuine feeling that will actually benefit the person to whom they make the statements, but rather to stop harassment. Indeed, there is even one case where the testator put a dummy will in her sideboard to stop herself being harassed by potential claimants on her estate after she died.
There was also oral evidence that the testator had been able to get a start in life because the plaintiffs' mother Patricia had gone out to work at the age of 13 in order to help support the testator (then aged 7), and that from time to time the testator acknowledged his debt. I consider that on the balance of probabilities I should accept this evidence, however it seems equally consistent with a feeling of gratitude on the part of the testator as opposed to an admission of a moral duty to make provision. We do know that at one stage the testator did make a will making some provision for these plaintiffs but then later removed that provision. This in itself tends to suggest that there was not a continuous loving family relationship between the plaintiffs and the testator.
The defendant's affidavit was rather weird. A great deal of it was really inadmissible and I had to treat it as submissions. However, many of the submissions made did appear to me to have validity. For instance the plaintiffs, though they were really too young to know what was happening, stress that in the early days the testator would have handed his mother monies for support of the family. The submission of the defendant was that in the case of Sidney, this must have been very little as the army would have made quite sure that his lawful wife received sufficient funds and in the case of the navy, the testator was so junior that very little would have been available over and above that which was required for his own needs. In any event, there is some suggestion that money was paid to Grandma Sheehan but that she kept it separate and did not use it to support the family but in due course gave it back to the testator so that he could buy a vehicle. Really, on both sides this is just speculation.
I was not impressed with Diann in the witness box.
It was put to Diann that she had had very little contact with the testator between 2003 and 2013. She denied this over and over again. She was asked why she did not even have a photograph of this period, to which her answer was that family celebrations in that period were fewer and fewer. Three witnesses who were neighbours of the testator at Sans Souci gave evidence: Mr Denis Thistlewhite who lived next door; Peter Blackburn; and Roma Lopman. Each deposed that they had a close relationship with the Sheehan family. None of them ever saw Diann Miller or Sandra Payne at any stage during their long association with the Sheehan family. They were not cross-examined.
Furthermore, Diann Miller was completely ignorant of the renovations that had taken place on the Sans Souci property. These matters and her general appearance make me reluctant to accept Diann Miller's evidence at its face value.
Sandra Payne is suffering from dementia and did not, again, impress in the witness box, but this is understandable. Her husband Peter Payne was an impressive witness. Of course, as an ex-police officer he is accustomed to giving evidence in the witness box. However, there is no reason to doubt his evidence. He gives the conversations about leaving property to "the girls" in the same words as his wife and sister-in-law but, as he acknowledged in the witness box, police do realise that to do so weakens the impression the evidence gives so that it is more likely than not that his memory is genuine.
Diann says that she and the testator exchanged Christmas cards etc but there is not one piece of paper that has been produced which does show any attachment between the parties. Nor has one letter or document been produced. One would expect that over a period of 50 years, if there was a close relationship akin to parent and child, some documents would be able to be produced, some letters of congratulations when the niece did something praiseworthy would have been retained, but there is absolutely nothing.
The objective facts are that since 1950 (that is 65 years ago) the parties have not been living in the same house. Both the plaintiffs have married and have children and they were not living close to the testator. I cannot see, even accepting the oral evidence (but discounting it for the reasons I have mentioned) that either of the plaintiffs have established a case that they should be treated in the same way as if they were children or other persons for whom the community would expect the deceased to have made provision.
Much was put on the fact that the defendant is a widower aged 75, appears not to need extra provision and that this is a large estate of some $6.4 million. That is a relevant matter to take into account, but is not a particularly strong factor. Merely because the beneficiary is a rich man is no strong reason why a testator should make provision for people who were not that close to him during his life and made absolutely no contribution, as is acknowledged to the fortune he amassed.
Thus, on the balance of probabilities, I conclude that there are no factors warranting the making of this application.
It follows that the application must be dismissed.
If I am wrong in this then each plaintiff seeks an order for a legacy but not in a way which will substantially affect the benefit to be received by the defendant. I am not too sure what that means. However, each of the plaintiffs has a house and has an income, albeit in the case of Sandra, by way of a pension. Neither plaintiff is in good health.
It is questionable whether the average member of the community, if asked, "in these circumstances of the case, would you expect a testator to have made some provision for the plaintiffs?", would answer in the negative. The fact that at one stage the testator did make a will making some provision for them would probably assist in answering this question affirmatively. On the other hand, we do not know why it is that the testator then deliberately dropped the plaintiffs. The defendant says that this was because the testator realised that Diann was just a greedy, grasping woman, but there is not enough material for me to find that as a fact. Accordingly, if the plaintiffs were eligible persons it would seem to me that a cash legacy to enable them to meet medical bills, to take the odd holiday and to have a little nest egg in reserve means that an order of a legacy of $100,000 each would have been appropriate considering the size of the estate, and the fact that there are no other claimants on the testator's bounty.
However, in all the circumstances, the plaintiffs' summons must be dismissed. I would think that they should be dismissed with costs as they were really purely a speculative action but I will hear counsel if they wish to be heard on that matter.
[3]
Amendments
24 November 2015 - Paragraph 25 - "of the household on" changed to "of the household of"
Paragraph 44 - "Mclelland CJ" changed to "McLelland CJ"
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Decision last updated: 24 November 2015