Paterson v Vaughn Charles Bunter as Executor of the Will of George Samuel Adolphus Bunter

Paterson v Vaughn Charles Bunter as Executor of the Will of George Samuel Adolphus Bunter - [2000] WASC 83 - WASC 2000 case summary — Zoe

[36]

13 Within the house at Seventh Street, Wonthella the plaintiff and deceased appear to have lived life as a normal married couple. I accept the plaintiff's testimony that she did the basic cooking and did all of the washing, ironing and housecleaning. I accept too that they enjoyed the company of each other and went out together from time to time, including shopping visits and occasional trips out of Geraldton. It is unnecessary for me to resolve the question how often the second defendant and/or other defendants visited the deceased. There is a difference of testimony on the part of the plaintiff on the one hand and the defendants on the other on this point, but it matters little as the fact is that from the beginning of 1991 the second defendant left Geraldton and moved to Perth, from where he had limited opportunities to visit his father in the following three years of his life. Nothing turns in my view on the extent to which the second defendant or any of the other defendants visited the deceased. It is sufficient to say that the deceased clearly regarded them as members of his family for whom he cared. In addition, I accept evidence that he deliberately chose to inform the defendants, or some of them, and only them of the existence of a quantity of gold he had buried at the side of the house. For example, the third defendant was told by the deceased that "if anything ever happens its out there ... I just want to let you know outside the side of the house, its buried there". The fourth defendant testified that the deceased took him out to where the gold was hidden and showed him where it was, telling him that in the event of his death it would be up to himself, his parents, brother and sister to "recount that gold ... go and collect it" because he was quite clear that he did not want the plaintiff to know where it was. I might say in passing that I totally reject the evidence of the second defendant that such gold as the deceased had was, in truth, his (the second defendant's) gold because the second defendant had funded prospecting trips of the deceased by paying for his fuel. Not only is the evidence incredible, but it was inconsistent with the testimony of the fourth defendant.

[50]

23 The fourth defendant is a chartered accountant who resides in Peppermint Grove Beach near Capel. He and his wife own two residential properties, each of which is mortgaged but in which there is a combined equity of approximately $45,000. He is in secure employment and earns $60,000 per annum. The fifth defendant resides in Broome where he owns a house subject to a mortgage. He has another investment property in Yokine and the combined equity in the two properties is in excess of $70,000. He is a technical officer with Broome Pearls and earns $70,000 per annum. The sixth defendant (now Fleur Lorelle Sharpe) was married only two weeks before trial. She and her husband live at Gelorup where he works as a laboratory technician earning approximately $50,000 per annum and she works in a part-time capacity (in Bunbury) as a bookkeeper, earning approximately $120 per week. She and her husband are buying a house in Gelorup in which there is an equity of approximately $40,000. One other aspect of the financial position of the fourth and fifth defendants should be noted. In or about 1987 - 1988 the deceased made available for the fourth and fifth defendants a sum of money which was placed in an account controlled by the second and third defendants in trust for the fourth and fifth defendants. This sum was apparently $20 - $30,000 at the inception, but appears to have increased to approximately $50,000 when a property was bought in Geraldton. In whose name it was registered is unclear, but in or about 1991 it was sold and the proceeds of sale thereof went towards the purchase of the property owned by GEH at Forrestdale in which the second and third defendants reside. The second defendant appears to have been responsible for the sale of the property and the appropriation of the proceeds thereof without there having been any specific accounting to the third and fourth defendants. It does not appear that the sixth defendant was ever provided with any trust fund by the deceased, but it is, in my view, relevant that during his lifetime the deceased advanced a substantial sum of money to the fourth and fifth defendants.

[62]

27 It follows from the conclusions I have reached that I have accepted that for a period of nearly 10 years the plaintiff and the deceased lived together in the same household where they, for the majority of that period, shared a double bed in the main bedroom and engaged, at least for a period, in a sexual relationship. I conclude from the cards which the deceased gave to the plaintiff that there was a deep and loving relationship between them. This may have been expressed only privately by the deceased, but nevertheless it was, in my view, outwardly obvious to others that they resided together as if they were a married couple. I have already mentioned the evidence of Beard, but I find also that the defendants, or at least the second, third and sixth defendant, by their correspondence with the plaintiff and the deceased, recognised that they were a "defacto couple" in the colloquial and popular sense. It is true that there appears to have been a complete separation in the financial resources of the plaintiff and the deceased, but each was in receipt of a pension, and the arrangement by which the plaintiff contributed to one-half the cost of all bills seems to me to have been normal enough, given that situation. It is true that there were no joint bank accounts and no proper pooling of resources, but there was, nevertheless, a general sharing of domestic expenses. I have already discussed the question of rent and I conclude that whatever the position may have been before 1992, at the date of death, the plaintiff was paying no rent to the deceased. If she did make a contribution of $25 a week before 1992 it does not, in my view, detract from the conclusion I have reached. It is also true that the property at Wonthella was never transferred into the joint names of the plaintiff and the deceased. It remained at all relevant times registered in the name of the deceased alone. Nor is there any indication that at any time the plaintiff contemplated contributing to the purchase of a one-half share of the property. However, that does not seem to me to be determinative at all. The deceased had a house of his own when he first met the plaintiff and it was he who encouraged the plaintiff to move in with him. After first living at one house they moved to the Wonthella house and that, in my view, was their home, in whoever's name it may have been registered. In relation to the performance of household duties I accept the evidence of the plaintiff that she generally washed, ironed and cooked. Although counsel for the defendants contended that there was some inconsistency in the plaintiff's evidence in this regard, it seems to me to be only that at the Cassia Street house the deceased did the washing because of the cumbersome nature of the washing machine. After it had been done the plaintiff hung it. Later, at Seventh Street, Wonthella when the plaintiff had bought a new automatic washing machine, she was responsible for doing all of the washing. Whilst the plaintiff may, in her first affidavit, have deposed to the fact that she at all times did "all the deceased's washing, ironing and housecleaning", nothing in my view turns on any minor inconsistency that there may be in this regard.

[70]

35 I am therefore of the view that the deceased did not make adequate provision from his estate for the proper maintenance of the plaintiff. I accept the argument of counsel for the defendant that the question is to be determined by reference to circumstances as they existed at the time of death, at which time the plaintiff did have a substantial lump sum investment and was in receipt of a pension. As I intend to make provision for the plaintiff under the Act, the discretion is to be exercised by reference to circumstances existing at this moment: White v Barron [1980] HCA 14; (1979-1980) 144 CLR 431 at 441; Bondelmonte v Blanckensee [1989] WAR 305 at 307. I accept too that the size of the estate of the deceased is relevant in determining what is the proper maintenance and support of the plaintiff: Bosch v Perpetual Trustees Co Ltd [1938] AC 463; Bondelmonte v Blanckensee (supra). It was argued by counsel for the defendants that it would be inappropriate to make a capital provision for the plaintiff when regard is had to her age. It was put that the benefit of another kind would safeguard her personally without leaving her in a position where she could benefit her relatives from the proceeds of the legacy (White v Barron (supra) per Mason J at 444). It was also put (and I accept) that the proper level of maintenance and support requires the consideration of the relationship between the deceased and other persons who have legitimate claims upon his bounty (Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 - 210) and in this case it was contended that those to whom the deceased had chosen to distribute his estate (the defendants) all have legitimate claims upon his bounty. Although it was put by counsel for the defendants that none of them is "well off" and in particular the son of the deceased is living in relatively modest accommodation and circumstances", I do not accept this submission for the reasons that I have previously set out. In my view, all defendants are reasonably well financially placed. I do, of course, accept that there is no requirement that a "need" in relation to the second plaintiff should exist. The relationship between father and son does not require such special need (Grainger v The Public Trustee (supra) per Steytler J at 104) and the relationship which existed between father and son remains a relevant consideration. In this case I do find that there was a reasonably close relationship between the deceased and his son. It is true that they may not have seen each other regularly, but on the other hand, there was clearly confidence between the deceased and the second defendant. The evidence in relation to the deceased making his son aware of the location of gold and deliberately excluding the plaintiff from that knowledge is telling in that regard. However, the deceased did leave the second of his houses to the defendants and to that extent and to the extent to which other assets were left to them they were, in my view, well provided for.

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Judgment (73 paragraphs)

Paterson v Vaughn Charles Bunter as Executor of the Will of George Samuel Adolphus Bunter (Dec) & Ors [2000] WASC 83 (31 March 2000)

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Legislation Cited (2)

Cases Cited (8)