Neale v Neale

Judgment - EX TEMPORE (REVISED) 1HIS HONOUR: There is, presently, before the Court, a notice of motion, filed on 17 June 2013, by the Plaintiffs, each of whom makes a claim for a family provision order out of the estate of a person that each alleges is his, and her, father. Whilst there is, or may be, a dispute about paternity, there is no dispute that each Plaintiff is otherwise an eligible person within the meaning of that term in s 57(1)(e) of the Succession Act 2006 ("a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member"). 2The Plaintiffs, pursuant to Uniform Civil Procedure Rules 2005 ("the UCPR") rule 33.4, seek to set aside two subpoenas to produce, each issued by the Defendant on 31 May 2013, one addressed to Peter Arthur Neale and the other to Lorraine Margaret Neale, who is the stepfather and the mother, respectively, of each of the Plaintiffs. The subpoenas seek various categories of documents, including the Will of each and others that disclose his, and her, personal financial affairs. 3The Defendant does not suggest that the Plaintiffs are not "persons having a sufficient interest" to make the application to set aside the subpoenas. 4There is no dispute, also, that the Plaintiff, Craig, was born in October 1969 and is 43 years of age, and that Michelle was born in December 1970 and is 42 years of age. It appears that Craig lived with Peter and Lorraine from about 1973 until about 1997, whilst Michelle lived with them from about 1973 until about 1994. There is no suggestion by the Defendant that either Plaintiff currently lives with Peter and Lorraine. There is also no suggestion that either Plaintiff currently receives any financial support from Peter or Lorraine. 5In the substantive proceedings, Peter and Lorraine has each filed an affidavit. Lorraine gives evidence that, in relation to testamentary intentions, Peter has said, "No, we are not favouring one child over the other and we will be treating them all as equal beneficiaries in our wills". This statement was made with reference to each of the applicants and to their sibling, Kristian. Lorraine said, "I agree with Peter". These statements found the basis of the subpoenas having been issued. 6The conversations to which I have just referred, apparently, occurred in the late 1990s. The Defendant has not provided any evidence as to the current testamentary intentions (even if that were relevant) of each of Peter and Lorraine. Accordingly, what was then said is no more than the mere expression of intention at the time it was made. 7There is no evidence, read on the notice of motion, as to the present age, or state of health, of either Peter or Lorraine. Accordingly, it is not even possible to gauge the life expectancy of each (assuming that were relevant). 8The Defendant submitted that each of the Plaintiffs has a potential inheritance in respect of the estate of Peter and Lorraine when he and she dies, and that an appreciation of the value of that potential inheritance out of the estate of one, or both, of them is necessary, and, therefore, relevant to take into consideration in determining his, and her, claim, respectively, for a family provision order out of the deceased's estate. In other words, the potential inheritance is a "financial resource" of each of the Plaintiffs and, in those circumstances the Defendant is entitled to see documents that might enable a calculation of the value of that "financial resource" to be made. 9I do not accept the submission made by senior counsel for the Defendant. Whether the subpoena should be set aside, depends upon the apparent relevance of the documents sought to be produced to the issues defined in the proceedings. As to relevance, "production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence of the case": National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372. 10I do not consider that the documents sought are relevant to the application by each Plaintiff for a family provision order. Where, for example, the issues so defined in his, and her, claims reveal that a matter enumerated in s 60(2) is apparently irrelevant, the use of other curial process, such as issuing subpoenas, should not be employed to compel a non-party to produce documents relating to such matters. 11It is to be pointed out that neither Peter nor Lorraine has made a claim for a family provision order in respect of the estate of the deceased. Whilst Lorraine is an eligible person (a former spouse), Peter is not. Neither is a beneficiary named in the deceased's Will. It follows that the financial resources of each is not a matter that may be taken into account under s 60(2)(d) of the Act. 12There is no evidence that either of the Plaintiffs is cohabiting with Peter and Lorraine. Accordingly, s 60(2)(e) of the Act is not relevant in relation to each. Furthermore, Peter and Lorraine, as step-parent and parent respectively, is not liable to support either of the Plaintiffs, each of whom is an adult. It follows that s 60(2)(l) is also not relevant. 13In a case such as this one, that an applicant is, or may be, a beneficiary named in the Will, or on intestacy, of a person who has not died is, in my view, irrelevant otherwise. The potential inheritance of an applicant is too speculative to be considered as a financial resource, given that a testator can, ordinarily, change his, or her, Will, and because a Will has no legal effect until the death of the testator. Testamentary intentions may change. At the date of death, which may be some time away, the applicant may no longer be a beneficiary named in the Will, or the person may not have died intestate. At the date of the hearing of the claims, assuming the testator or intestate is alive, the applicant for a family provision order would have no entitlement to, control over, or relative certainty of receipt of, property of the testator or intestate. 14Although stated in a completely different context, I respectfully, agree with the general principle stated by the Full Court of the Family Court in White and Tulloch v White (1995) 19 Fam LR 696. In that case, a subpoena was served upon the mother of a party to proceedings under s 79 of the Family Law Act 1975 (Cth), to produce documents including the mother's Will, prior Wills and evidence of her financial circumstances. The mother objected to production and what was said by the Full Court of the Family Court applies equally to a case in which a family provision order is sought: "... in our view, such an expectancy could not be said to be a financial resource, that term connoting some degree of entitlement to, control over, or relative certainty of receipt of property. In this context we refer to the submissions of Mr Rose which pointed out that a will is a mere expression of intention at the time it is made and may be freely revoked or altered (see Vynior's Case (1610) 77 ER 597 Westminster's Deed of Appointment; Re Kerr v Westminster [1959] 2 WLR 299 at 302 Halsbury's Laws of England, 4th ed, vol 50, paras 201, 202, 216), and that it has no legal effect until the death of the testator. ... As a matter of principle and day to day management of trials, it would not ordinarily be appropriate to perform that exercise largely by detailed reference to the property of a third party or to require a third party to make a detailed disclosure of his or her testamentary intentions and financial circumstances. It would be highly undesirable that in a property proceeding between husband and wife significant amounts of time should be devoted to a detailed examination of such matters. ... It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s. 75(2) factors, it would be shutting one's eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s. 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way." 15In my view, the Will and the current financial circumstances of each of Peter and Lorraine, as disclosed by the other documents the subject of each subpoena, are not relevant to these proceedings. Each of the subpoenas should be set aside. 16I order that each of the subpoenas referred to in the notice of motion filed 17 June 2013 be set aside. I order the Defendant to pay the Plaintiffs' costs of the notice of motion, but such costs may be paid out of the deceased's estate.