Ogden v. Green [2003] NSWCA 352

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40599/03 SC 2505/02

SHELLER JA HODGSON JA IPP JA

Monday 24 November 2003 OGDEN V. GREEN Judgment 1 HODGSON JA: The late Ronald Edgar Owen died on 28 January 2002 aged eighty-nine. He was a widower and he was survived by two children, a son aged forty-four, the appellant, and a daughter aged forty-three, the respondent. 2 He left an estate of about $2.5 million. By his last will dated 8 July 1997 he appointed the appellant his executor, and in the events that happened, left his whole estate to the appellant. The respondent brought Family Provision Act proceedings against the appellant, and on 24 June 2003 Master McLaughlin ordered that the respondent receive a legacy of $461,000 and ordered that her costs on a party and party basis be paid out of the estate. 3 The appellant appeals to this Court on the following grounds: 1. The Master erred in that he ordered that the Respondent receive a legacy in a sum which exceeded what was necessary to make adequate provision for the Respondent's maintenance and advancement in life. 2. The Master erred in that he equated the Respondent's claim to that of the spouse of a Testator. 3. The Master erred in that he failed to give any or any proper weight to the following matters: (a) The Respondent was a married woman living with her husband at the date of hearing. (b) The Respondent was in paid employment at the date of the hearing. (c) The poor quality of the relationship between the Testator and the Respondent. (d) The Testator's reasons for not making greater provision for the Respondent. 4 The Master found that there was no other person, apart from the two parties, with a legitimate claim on the estate, and the appellant did not offer any evidence concerning his financial and material circumstances. Accordingly, although the appellant by virtue of his close relationship to and assistance of the deceased had a legitimate claim on the estate, that legitimate claim was not supported by any actual need. 5 The respondent's situation was as follows. She was married in 1979 and there were two children of that marriage. One was a single mother who with her daughter resided with her parents, the other was in full-time employment but also resided with her parents. The family resided in rental accommodation in Mandurah, Western Australia, about eighty kilometres south of Perth. They had no significant assets apart from a motor vehicle and furniture and effects. They had debts of about $34,000. The respondent was employed in a bakery, having a net weekly income of $465 for a forty-hour week and $565 for a forty-eight hour week. The respondent's husband was unemployed and not in receipt of social security because of the respondent's income. He had in fact had a history of unsuccessful business concerns, and that had led in the past to debts and bankruptcy. 6 The Master held that the respondent had been left without adequate provision for her proper maintenance, and he calculated the amount which ought to be provided for her maintenance as follows: an amount to assist in the purchase of a house $250,000; furniture and whitegoods $12,000; replacement motor vehicle $15,000; discharge of debts $34,000; funds for contingency $150,000.

SUBMISSIONS 7 The appellant made the following written submissions in support of the grounds of appeal: 21. The relationship between the Respondent and the Deceased was not a close relationship.

On the question of the Respondent's relationship with the Deceased the Deceased had expressed concerns to the Appellant about the following matters: (i) The Plaintiff's marriage to her husband which was against the Deceased's wishes. (ii) The Plaintiff's husband's gambling problems. (iii) The Plaintiff's deceptions concerning her debt problems. (Red Appeal Book 107 lines J-R)

The Respondent's own evidence disclosed the nature of her relationship with her parents: (a) The Deceased refused the Respondent's request for financial assistance to help the Respondent and her husband in 1979 (Red Appeal Book 13 line N). (b) The Respondent's parents refused to visit the Respondent in Perth when Natasha was born (Red Appeal Book 14 line M). (c) The Respondent was not informed that the Deceased was seriously ill in 1986 (Red Appeal Book 15 line S). (d) The Respondent was not invited to the Appellant's wedding (Red Appeal Book 19 line I). (e) The Respondent was not informed of her mother's serious illness in 1995 (Red Appeal Book 19 line P). (f) The Respondent was not informed that her mother's condition was terminal (Red Appeal Book 20 line D).

The Respondent received some financial assistance from her parents (airfares to Perth in 1979 Red appeal Book 13 line V), but it seems that as a result of the Respondent marrying against her parents wishes their relationship with the Respondent was not close.

The Respondent's evidence was to the effect that she wished to purchase a house in the Mount Pleasant area of Perth (Red Appeal Book 113 line D). The Master found that there was no reason why the Respondent's inquiry should have been limited to the Mount Pleasant area (Red Appeal Book 115 line F).

In allowing the Respondent an amount of $250,000 to acquire a house the Master did more than simply give the Respondent the means of paying a deposit on a house. He gave her a significant amount to put towards the cost of a residential property. Indeed it may have been sufficient to purchase a property outright. The Master observed that there was no evidence of the Respondent's borrowing capacity (Red Appeal Book 115 line H), but proceeded to allow her the sum of $250,000. This approach is inconsistent with authority. In Shearer v The Public Trustee (ED 2547/1995) and Hawke v The Public Trustee (ED 4168/1997) (Young J unreported 23 March 1998), His Honour said: "Where the applicant is a spouse it is nowadays usually thought to leave a spouse with a mere right of 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."

In this case it is submitted that the Master afforded insufficient weight to the following matters when deciding the quantum of the legacy payable to the Respondent: (a) The Respondent was a married woman at the date of the hearing. (b) The Respondent was in full time employment. (c) The Respondent had lived in Western Australia for over 20 years. (d) The Respondent had lived her life independently of the Deceased since her marriage in 1979. (e) The Deceased's view as reflected in his will that it was appropriate to provide modest provision for the Respondent. (f) The nature of the relationship between the Respondent and her parents.

The Master went beyond allowing an amount which represented "adequate provision for the Respondent's proper maintenance" in allowing her a legacy of $461,000. The Master failed to take into account the nature of the relationship between the Deceased and the Respondent in approaching the matter in the way in which he did. The Master focused upon the cause for the nature of the relationship not the nature of the relationship. Further the Master failed to take into account the Respondent's lack of dependency upon the Deceased from the time that she left home over 20 years earlier.

The Master was on the evidence able to find that the relationship between the Respondent and the Deceased was not such as to disqualify the Respondent from an order under the Family Provision Act 1982. It was not such as to allow him to regard the Respondent as a dutiful and loving daughter who was totally dependant on the Deceased, yet this was the approach adopted.

It was appropriate for the Master to: (a) award a legacy which included an amount for the discharge of the Plaintiff's debts; and (b) to leave the Respondent with a substantial amount thereafter.

A legacy of $184,000 would have left the Respondent with a sum of $150,000 after the discharge of her debts. To award the Respondent more than that amount represented an unwarranted interference with the Deceased's will. 8 Mr Wilson SC for the appellant submitted orally that the award was too generous. He noted that the Master, having said that the respondent could not expect to be provided with a house and could not expect a house in the area specified by the respondent, nevertheless still provided an amount equal to one-half of the price of a house in that area. He submitted that the only evidence as to the appropriate price of housing was evidence that a house in Mandurah where the respondent lived had been sold in 2000 for $140,000. 9 He submitted that the provision for contingencies was excessive, particularly in circumstances where the respondent was capable of long-term employment. Nothing in a reading of the Master's judgment made it clear that he fully took into account the matters referred to in ground three of the grounds of appeal.

DECISION 10 As regards the relationship between the deceased and the respondent, the Master found that any poor quality of that relationship was not the fault of the respondent and that any lack of contact between the deceased and the respondent did not reflect poorly on her. Those findings were open on the evidence and are not challenged. 11 Plainly when one has regard to the size of the estate, the respondent's position as a daughter, the relationship as the respondent tried to maintain it with the deceased, the needs of the respondent, and the lack of any need in any other person with a legitimate claim, the respondent's legitimate claim could be considered as a strong one. 12 Ultimately the submission of the appellant was that the provision was too high, and in particular that the respondent was in effect treated as generously as a widow would be treated, and that it is not expected of parents that they provide a house for their adult able-bodied children. As a very general statement it may be true that this is not expected of parents; but in my opinion, in circumstances where the deceased had such a large estate, where the respondent had on the Master's findings done everything appropriate on her part to maintain a good relationship with the deceased, where the respondent had struggled over many years without assistance from wealthy parents, and where there was no other claim based on need, it could not be said that the provision made by the Master was outside what could be regarded as adequate provision for the respondent's proper maintenance. 13 For those reasons in my opinion the appeal should be dismissed with costs. 14 SHELLER JA: I agree. 15 IPP JA: I agree. 16 SHELLER JA: The order of the Court is that the appeal is dismissed with costs. **********

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