Mitrovic v Perpetual Trustee Co Ltd

• 1- THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

004058/98 - JANET MARY MITROVIC v PERPETUAL TRUSTEE CO LTD - ESTATE OF JANE SMITH LAVENDER

1 MASTER: This is the hearing of a case under the Family Provisions Act in relief of the estate of the late Janet Smith Lavender who died on 3 July 1997 aged 91 years. She was survived by her niece, the plaintiff. Her husband and her only child pre deceased her. 2 The will of which the defendant was granted Probate, was made on 27 July 1994. By that will, she gave to a friend, Margaret Kidson, some furniture, gave to the plaintiff a legacy of $5,000 and the North Haven Retirement Village Control Board of Management a legacy of $25,000. The balance of her Estate was divided between the Royal New South Wales Society for Deaf and Blind Children and the Salvation Army. 3 The deceased had made a number of wills over a period of time and it is useful noting the benefits that the plaintiff received under those wills. In 1997 the plaintiff received a legacy of $3,000 and some interest in income. In 1991 she received a legacy of $80,000 and an interest in income. In 1982 and 1984 she received an interest in income in $100,000 if certain events eventuated. In 1987 she also received a legacy of $10,000. 4 In 1989 she received an income interest in $50,000 and a legacy of $10,000 and in 1993, she received one half of the residue of the Estate. There was thus a substantial restructure between the 1993 will and the 1994 will in respect of which Probate was granted. 5 The Estate is a fairly large one. The net distributable amount is in the order of $857,000. There are costs in this application on the defence side of $18,957 and for the plaintiff of some $17,000. It is necessary to deal with the history of the family in order to understand the plaintiff's claim. 6 In 1904 Janet Ferguson, the mother of the plaintiff was born. Her sister, Jane Ferguson, the testator, was born in 1906 thus the plaintiff is the niece of the testator. 7 In 1923 Thomas Ferguson, the grandfather of the plaintiff and father of the testator, purchased a house at 9 Julia Street, Ashfield. That purchase comprised two semi-detached houses on one title. 8 In 1934 Janet Ferguson married George Saunders and her sister, Jane, the testator, married in 1936 to Leslie Lavender. They had one son, Charles John, within about a year. In 1938 the plaintiff was born and in 1941 her grandfather, Thomas Ferguson, transferred the property, 9 Julia Street, Ashfield to the deceased, Jane Lavender. 9 1942 the plaintiff's father died and, as a result, the plaintiff's mother and the plaintiff moved into 9 Julia Street, Ashfield. That was so that they could assist the plaintiff's grandmother. The grandparents, the plaintiff more and the plaintiff and her mother shared one of the 2 semis at 9 Julia Street, Ashfield. 10 In 1947, Thomas Ferguson, the grandfather, died and the arrangements continued for residence as before. The deceased, her husband and child, continued to reside in the other semi which she had occupied since, probably, 1941. 11 In 1951 there was a change in the ownership. The deceased granted a lease to the grandmother of 9 Julia Street, Ashfield, being Flat 2, in other words, the part occupied by the plaintiff and her mother for a period of 7 years. She then sold the whole of the property, the subject of the lease, and moved to a property at Epping which she purchased. The plaintiff and her mother remained in the house at Ashfield in Flat 2 with the grandmother. 12 In 1957, the plaintiff and her mother moved into a flat nearby and on 2 July 1972, the plaintiff's mother died which was a traumatic event for the plaintiff as she came home and found her mother dead. The immediate response from the testator, her aunt, was to come and take her to live with her at Epping. There was some confusion in the evidence given by the plaintiff about what happened and where she lived over the next 12 months. It seems clear that immediately on the death of her mother in July 1962, she moved to her aunt's at Epping. It is also clear by July or September in 1963 she had purchased a unit which she did with the money she received from her mother. She also said that she spent 12 months in other rented accommodation. However, the evidence, which seems to me more probable, is the evidence which she gave in her affidavit and also repeated in the witness box about staying at Epping with Janet for a period of some five to six months. 13 The reason why it is probable is because she recalls the Christmas holidays that they took at the end of 1962. That is likely to stay in her mind because it was during this period that difficulties with the deceased's son, John, became evident. He was schizophrenic and became violent. 14 As a result of this, the plaintiff had to leave and hence her move for the first time to rented accommodation and then to a unit which she bought. It seems to me that the situation is that the plaintiff did live for between five and six months with the deceased at Epping. 15 A year later, in 1963 as I have mentioned, the son of the plaintiff died. In 1964 the deceased and her husband sold their house at Epping and moved to the Roseville or Lindfield area. At about this time, the plaintiff's grandmother died. 16 In 1967 the plaintiff married Ivan Mitrovic and she had two children of that marriage who are now 24 and 26. In 1985 the deceased and her husband moved to the North Haven Retirement Village and lived there for some years. He died, apparently, before the deceased. 17 In 1992 the plaintiff and her husband separated and in due course their house was sold. The plaintiff moved into a flat in 1993. There was the will to which I have referred and in 1993, the plaintiff became ill and was diagnosed with an hereditary disease, which I will refer to later. She ceased work and for some 6 months or more went to the Central Coast to be with her daughter. In 1994 the testator made her current will and died in 1997, as I have recounted. 18 For the plaintiff to be an eligible person in this matter, it is necessary for her to show that she at some stage was part of the household of the deceased and also to show that she was partly dependent on the deceased. The first relevant period is between 1942 and 1951 when the plaintiff was living with her mother and grandmother and while the deceased, her husband and son lived next door in the other flat. Although the properties did not have separate yards for each of the flats, the semis were clearly separate houses and residences. Therefore there were two households and, accordingly, the plaintiff was not part of the household of the deceased. 19 The other period is in 1962 for five to six months. On that occasion the plaintiff was taken into the deceased's household and clearly was part of that household for that period. As far as dependency is concerned, this is a little more difficult question. 20 In Ball v Newey (1988) 13 NSW LR 1989, Samuels J at 409 said: "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 dependents analogous to but distinct from financial dependents which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person'. In the present case, however, only financial dependents is relied on and I approach the matter on that bases. 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 LJ 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 tha6t there we are concerned with financial dependents and not emotional dependents, 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." 21 In Benny v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional 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 the relationship without regard to any element of any financial dependence. 22 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say:- "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 dependence 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 McLelland 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." 23 In McKenzie v. Baddeley (Court of Appeal 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". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" rather it suggests "more than minimally" or perhaps "significantly". 24 It is abundantly clear from all these comments that dependency is a matter to be determined from all the facts in the case. 25 Once again there are two periods of concern. The first is from 1942 to 1951. It is clear that on the transfer of the properties in 1942, the testator at that time took over the responsibility for meeting the mortgage that was on the house. Apart from this, there is no evidence, apart from one statement by the plaintiff, as to the arrangements for payment of rent. The evidence is silent and I would be reluctant to find dependency in this period given the absence of evidence. 26 However the second period in July to December 1962, is somewhat clearer. Clearly the plaintiff paid for her food because she was working at the time. She also helped with odds bills such telephone and electricity. However, she paid no rent or made no contribution for accommodation. There was extracted in cross-examination an answer that the plaintiff paid her own way. It is clear that for the period she was provided with accommodation by the deceased. In these circumstances the provision of accommodation is certainly more than minimal and, accordingly, I am satisfied that the plaintiff was partly dependent upon the deceased. 27 Accordingly, the plaintiff is an eligible person and it is necessary to see whether there are factors warranting the making of the application in accordance with section 9(1) of the Act. 28 The meaning of this expression has been dealt with by McLelland J in re Fulop Deceased (1987) 8 NSWLR 679 at 681. There his Honour said the following: "This means that in a particulars 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 factor spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf 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 the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased."

29 In the present case, one has the history of contact between the family of the deceased and the family of which the plaintiff was a member. The two families grew up together in adjoining houses, sharing common gardens and it is clear that the plaintiff and the deceased's son played together as they grew up. 30 The response of the deceased when the plaintiff's mother died is quite illuminating. She regarded herself as the closest relative of the plaintiff and immediately took the plaintiff into her care following the plaintiff finding her mother dead at home. She obviously acted like a mother and was concerned at the welfare of the plaintiff and also the plaintiff's children whom she continued to take an interest in despite the fact she disproved of the plaintiff's husband. 31 Another indicator that suggests there are factors warranting, is the way the deceased has treated the plaintiff during her lifetime by the references made in her wills. Clearly the deceased thought that the plaintiff was someone who should have recognition in her will. 32 Given these factors, I am satisfied there are factors warranting the making of the application. 33 In applications under the Family Proceedings Act, the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two approaches that a Court must take. At page 209 it said the following: "The first question is, what the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate provision' and proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, the first stage of the process the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonable be made and making an order could disturb the testator's arrangements to pay creditors." 34 If, as directed by the High Court, one turns to the plaintiff's financial situation, one finds that she is in a completely parlous situation. She owns a number of items of furniture and lives in a Housing Commission flat. She has a liability which is a loan to the credit union and she apparently only owes about $400 on that with the last amount to be paid in September. She has a pension of $364 per fortnight. Apparently as other cheques come into her account, she must be getting support most likely from her children, in order to make ends meet. She has 2 children one of whom has 2 children of her own but they are not dependent upon her. 35 As far as her medical situation and work situation is concerned, she worked as a secretary at various hospitals during her lifetime. In 1993 she was forced to give up work because she was diagnosed with mitochondrial cytopathy which is a hereditary disease which cannot be treated. It creates muscle weakness, cognitive impairment and deafness. She also suffers from severe osteo-arthritis in both knees and sleep apnoea. She has some mild hypertension requiring treatment by medication. There has been evidence by her consultant neurologist and I will come back to the detail of his report in due course. 36 As far as the relationship between the plaintiff and the deceased is concerned, it seems fairly clear that there was contact over a long period. In 1994 a solicitor saw the deceased in order to get instructions to make her last will. On that occasion, the deceased said she wanted to reduce the benefit to her niece as she did not see her and does not know where she is. That was in July 1994. Four months prior in April 1994, that the plaintiff had returned from the Central Coast. It seems fairly likely that the absence of the plaintiff following her illness when she was helped by her children, probably accounted for the change of the testator's intentions. 37 Additionally I think that as the testator got older, although the plaintiff continued to visit, the occasions probably became less, no doubt due to the fact that it was difficult for the deceased to communicate with the plaintiff in her advancing illness and old age. I would not be critical of this and there is nothing in the relationship between the deceased and the plaintiff which would lead me to reduce any claims the plaintiff might have. 38 The Court also has to take into account the situation of others having a claim on the bounty of the deceased. There is no evidence of any contact between the deceased and the residuary beneficiaries. Clearly the gift to North Haven Retirement Village is explained by the treatment which the deceased received over many years and also the gift of furniture to Margaret Kidson, no doubt recognises that friend's relationship. 39 Effectively in the present case there are no competing claims to that of the plaintiff. She is the last surviving member of the family and there is more than adequate in the residual bequests to accommodate any legacy to the plaintiff. 40 This brings one to the way in which the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. 41 In a letter addressed to the defendant and dated 6 March 1998, the plaintiff's solicitors set out the extent of the claim. The items sought are, first, provision for the purchase of a 3 bedroom residence in the Hills areas for $175,000; furniture and appliances $45,000; repayment of the credit union loan $3,000; clothing $5,000; legal costs and relocation expenses of $25,000; an amount to be invested for income of $200,000. I note that the amount of the loan is now substantially less and is about $400. 42 Clearly, as was evident in the hearing before me, the plaintiff needs to acquire a hearing aid as her hearing loss is quite advanced. However, the evidence is silent on all these needs. In this regard, I am reminded by what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say: "I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if the existed. In my opinion, in the circumstance of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s 9(2) of the Act, to alter the deceased's disposition of his property the absence of proof that he has inadequately provided for the appellant." 43 If one turns to the claim for provision for accommodation, the first thing to note is that there was no evidence before me of what would be the cost of any such accommodation. Also there is no reason advanced as to why the existing accommodation in the Housing Commission flat is not appropriate. A desire is expressed to have one but that is all it is. 44 The other matter that has to be considered is whether or not, even if it were in evidence, it might be appropriate to provide a house. In Sheerer v The Public Trustee Young J, 23 March 1998, his Honour had this to say: "The community's attitude is not to be judged by a feelings to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants. Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right or residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own." 45 In the present case, one also that is to take into account the relationship between the plaintiff and the deceased. Here the plaintiff is not a child but merely a niece and the relevant factors to take into account are the facts which I have set out when dealing with factors warranting. It is thus necessary to consider those when judging the extent of provision that is appropriate. 46 In this case, I would not have thought the provision of a house was appropriate. Clearly there is some necessity for the plaintiff to repay her debt, acquire a hearing aid and have some amount to relieve the difficulties of her circumstances. She is after all living on the breadline being reliant on the pension. 47 The other problem for the plaintiff is the difficulty with her medical condition. The consultant neurologist, Mr Sharpe, dealt with it in a report and referred to the fact that she had to give up her work. Neurological tests have confirmed memory problems both in 1993 and 1994. He says in his report: "Although she has been living alone from time to time she finds it difficult because of her poor memory and difficulty with concentration. There have been some minor signs of psychosis helped with Melleril 50mg at night. She appears to have developed sleep apnoea with excessive day time tiredness and this is being investigated. She continues to have proximal muscle weakness but is still able to get about. Should not be living alone because Janet is not able to work productively and she should not be living alone because of her various symptoms. Her condition is likely to deteriorate further with the passage of time."

48 This is the crux of the claim brought by the plaintiff and her situation at the moment is that apparently the daughter is living with the plaintiff, looking after her. There was no evidence from the daughter as to what are her circumstances. 49 The other areas where the evidence is scant is questions of the life expectancy of the plaintiff based upon her medical condition and also generally. There is also no attempt in the evidence to suggest what might be the appropriate cost in the event that her daughter is not able to look after her and for how long those expenses might go on. The future likelihood of when the plaintiff will have to go into some nursing home has not been dealt with in the medical evidence and it obviously is important to the court, in order to apply and assess the medical needs. 50 I have the benefit of my own observations of the plaintiff in the witness box. Clearly she has a hearing difficulty. That was very evident. It is also apparent from the way she gave her evidence and the history in the matter, that her memory loss is quite severe and no doubt is a result of her illness. In a physical sense she is frail and needs the assistance of a walking stick. Her condition is likely to deteriorate further with the passage of time and the effect of her muscle spasms as a result of this inherited disease. 51 In my view it is likely she will need assistance in the future and that assistance may not always be available from her daughter who is 26, single and probably will want to establish her own life at some stage. 52 There are no competing claims in this case. The question of what is an appropriate provision in respect of large estates is dealt with by Young J in Anasson v Phillips, 4 March 1998 where his Honour said the following: "...with a very large estate...there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who is the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty my making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think flow from cases such as Re Buckland (1966) VR 404, especially at page 412." 53 In my view, this is a case where it is a fairly large estate without competing claims. Accordingly one can be a little bit more generous than one would in an ordinary case. However, one cannot speculate in the absence of evidence. Doing the best I can, I think it is appropriate that the plaintiff have a legacy of $125,000. 54 The question arises as to how it should be provided. When she sold her house in 1992, following the breakup of her marriage, the plaintiff received about $60,000 after payment of the debts. In June 1994 she received $35,000 from superannuation. At one stage she tried to buy a newsagency and over the years since 1992 she has moved houses on eight occasions. Notwithstanding that fact, she cannot explain what has happened to $95,000 odd that she received. All the she can tell the court is it has all gone and she denies giving it to her children. 55 The question of how to deal with a what might be called spendthrifts are dealt with by Young J in Vavros v Bondy, unreported 29 August 1988 and also the decision of Powell J in Howarth v Reed. Their Honours referred to the possibility of a provision not being applied by the person for the purposes intended by the court. At page 43 and 44, his Honour went on a to say: "While, as will be apparent from what I have earlier written, I am deeply concerned what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving th4e benefit of any order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the Judgement of Young J in Bondy v Vavros (29 August 1988(unreported)):`I should interpose at this point that in one sense it does not matter if I form the view that a plaintiff is a spendthrift If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time. I have used that expression to make it clear that I am not referring at the moment to the facts of this particular case. One the other hand, when one is considering what a wise and just testator would have done, if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.' The question, then, is what is the form of the Order ought now to be made?"

56 In the present case, although the plaintiff cannot explain what happened to her money, there is no independent evidence which might suggest that it has been misapplied in some inappropriate way. It is hard to think it could have disappeared in supporting her and moving on a number of occasion, but, absent any specific evidence as to what was the reason for the money's disappearance, I find it difficulty to conclude that the plaintiff is a spendthrift and therefore some special order ought to be made. 57 Accordingly the orders I make are: (1) I order that in lieu of legacy of $5,000 the plaintiff receive a legacy of $125,000.

(2) The plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.

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