Peter John Sangster v Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster

CITATION : Peter John Sangster v Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster [2009] NSWSC 695

HEARING DATE(S) : 23 and 24 February and 26 June 2009

CATCHWORDS : FAMILY PROVISION - Whether unemployed adult son with some health problems left without adequate provision for proper maintenance, education and advancement in life - Testator's wishes to ensure secure accommodation for plaintiff - Structure of provision in light of evidence

LEGISLATION CITED : Family Provision Act 1982 (NSW)

Blore v Lang (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Fung v Ye [2007] NSWCA 115 CASES CITED : Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Shearer v The Public Trustee; Hawke v The Public Trustee (unreported, Young J, NSWSC, 29 March 1998) Singer v Berghouse (1994) 181 CLR 201

PARTIES : Peter John Sangster (Plaintiff) Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster (Defendant)

COUNSEL : SF Hughes (Plaintiff) B Skinner (Defendant)

SOLICITORS : Jackson Smith Lawyers (Plaintiff) Benjamin & Robinson (Defendant)

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

5683 of 2007 PETER JOHN SANGSTER v NICHOLAS CHARLES SANGSTER AS EXECUTOR OF THE ESTATE OF THE LATE CHRISTOBEL MARY SANGSTER JUDGMENT 1 The plaintiff, Peter John Sangster, by Summons filed on 23 November 2007 makes application for further provision out of the estate of his late mother, Christobel Mary Sangster (the deceased), pursuant to s 7 of the Family Provision Act 1982 (the Act). 2 The application was heard on 23 and 24 February 2009 when Mr SF Hughes, of counsel, appeared for the plaintiff and Mr B Skinner, of counsel, appeared for the defendant, Nicholas Charles Sangster as executor of the estate of the deceased. At the conclusion of the hearing on 24 February 2009 the matter was adjourned to 26 June 2009 to accommodate the possible settlement of the proceedings. On 26 June 2009 the parties reported that negotiations had broken down and after further short submissions judgment was reserved. 3 The plaintiff, the youngest of the deceased's and David Flower Sangster's (Mr Sangster) three sons, is 48 years of age. The plaintiff's elder brothers, Antony and Nicholas are aged 55 years and 53 years respectively. Antony has been married twice and has three children from his first marriage and twin step daughters (the twins) from his second marriage. Both the plaintiff's brothers are successful professionals and it appears that there is no need in any other person with a legitimate claim on the estate.

4 The deceased died on 19 May 2007. Probate was granted on 9 August 2007. The Will provided for the following legacies: $20,000 to the defendant; $10,000 and a 1/6th share of jewellery, furs and personal effects (a 1/6th share) each to the defendant's wife and Antony's first wife; $5,000 and a 1/6th share each to the twins; a 1/6th share and a 1/5th share of funds in two bank accounts (a 1/5th share) each to Antony's two daughters; and a 1/5th share each to Antony's son and the defendant's two sons. The residue of the Estate was gifted to Mr Sangster. If Mr Sangster predeceased the deceased then ¼ share of the residue of the Estate was to be given each to, Antony and the defendant with the third ¼ share to be shared equally by Antony's and the defendant's children (excluding the twins). The final ¼ share was to be given to the defendant upon trust for the plaintiff during his lifetime, to set up a fund and, inter alia, to purchase or lease real estate for use and occupation by the plaintiff on the proviso that the plaintiff pay the rates, insurances and other outgoings and keep the property in a reasonable state of repair. 5 As at 26 June 2009 the net amount of the Estate was $462,500.03

6 As Mr Sangster survived the deceased, there is no operative provision for the plaintiff under the deceased's Will.

7 The plaintiff was educated at Sydney Grammar School to School Certificate standard. After leaving school in 1976 he attended TAFE for two years, studying photography, without completing that course. At various times he has held a pyrotechnics licence and certificates for industrial abseiling, Dogging and Rigging, use of explosive power tools and working on elevated platforms. Over the years he has worked in various fields in electronics in the entertainment industry, music, TV and film production. He has worked as a tour lighting director, studio lighting director, lighting technician, service technician, special effects technician and rigger. He has also worked in direct and telephone sales. 8 The plaintiff claimed that he has suffered severe back pain since his teenage years, made worse by heavy work and contact sports. He claimed that he started using alcohol and non-prescribed drugs at about the age of 16 to help him manage his back pain. The defendant gave evidence that he did not observe the plaintiff suffering from back pain in his teenage years. In any event, by 1979 the plaintiff had a serious problem with alcohol with four convictions for drink driving and related traffic offences and minor drug offences. 9 Although there is no evidence of the detail of the plaintiff's life between 1979 and 1995, it is apparent that he lived a life of alcohol and drug abuse and in 1995 he underwent a voluntary detoxification program at Rozelle Hospital and a 28-day rehabilitation program at the Phoenix Unit at Manly Hospital. It would appear that he continued to abuse alcohol and probably drugs for at least another five years, but the unchallenged evidence is that the plaintiff has not had any alcohol since 2000. The plaintiff has a number of health problems. Although some of the evidence suggests that he may have exaggerated some aspects of those problems, it is clear that for a number of years he has suffered varying degrees of mental and physical fatigue, nausea and frequent vomiting and is now in receipt of a disability pension. 10 In January 1995 the deceased and Mr Sangster were both seriously injured in a motor vehicle accident. The plaintiff claimed that the deceased, then aged 71, was a patient in the intensive care and trauma unit at Westmead Hospital for approximately one year during which time he attended to her personal care and needs. The defendant's evidence was that the deceased was in intensive care for just over four weeks and was discharged from hospital after a further six or seven weeks. The defendant claimed that the plaintiff rarely attended the hospital to visit the deceased after the motor vehicle accident and that he did not visit Mr Sangster whilst he was in hospital. It is apparent that this was at a time when the plaintiff was abusing alcohol and it may be that his recollection of these matters is a little blurred. When the deceased was discharged from hospital a daily carer assisted her for the first three months and thereafter three days per week attending to general household duties.

11 The plaintiff returned to live in the family home in Connell's Point in September 1995. His evidence was that he generally assisted around the home because both of his parents were quite debilitated after the motor vehicle accident. He claimed that he shopped for food; attended to personal needs of the deceased; prepared meals; cleaned up the kitchen after meals; did the washing; maintained the garden; attended to routine maintenance; installed security cameras; and attended to routine electrical maintenance jobs. 12 In 1998 the plaintiff accompanied the deceased on a three month holiday to the United Kingdom and Europe. On that trip they toured and conducted extensive family history research and visited old friends that the deceased had made when living in the United Kingdom in the late 1940s/mid 1950s. They toured Europe on a 21-day sightseeing bus tour. During this time the deceased still required use of a wheelchair as she was unable to walk unaided for any great distance. It was during this trip that the plaintiff experienced quite a deal of pain in manoeuvring the deceased and handling the luggage. The plaintiff organised the travel and accommodation for the trip, carried all the luggage when assistance was not available and physically assisted the deceased when they were travelling on public transport.

13 The plaintiff claimed that from 1995 to the date of her death he spent a lot of time with the deceased. He encouraged and accompanied her to the Adult Learning Centre; to various musical appreciation groups; the Historical Society; a quilting group; garden shows and the 2000 Para Olympics. The plaintiff claimed that he assisted both the deceased and Mr Sangster, driving them to Canberra on several occasions to visit his brother Antony and his family. He also claimed that he drove the deceased to see her doctors and lawyers, to visit friends and took her on shopping excursions. He attended residents group meetings and Kogarah Council meetings with the deceased in relation to some local government issues. He travelled to Adelaide to attend his great aunt's 100th birthday with the deceased and attended a large family reunion with the deceased in Adelaide after his great aunt's death in 2004.

14 In 2006 the deceased and Mr Sangster decided to sell the family home in which the plaintiff had been living since 1995. The deceased purchased an assisted care unit at Woolooware Shores Retirement Village and Mr Sangster purchased a two-bedroom independent living unit at the same village. The plaintiff claimed that he continued to care for the deceased in driving her to and from Woolooware Shores to the family home prior to its sale for the purposes of sorting the contents and helping her move her belongings. He accompanied her to medical appointments on average twice a month and attended social outings and shopping excursions with her. 15 Since late 2007 the plaintiff has been staying with a friend, Leesha Payor, at a house in Kogarah Bay owned by Ms Payor and her mother. Ms Payor gave evidence of her observations of the plaintiff during the time he has been staying with her, both in relation to his physical and mental wellbeing and his ability to care for himself. Ms Payor concluded that if he were to live independently, the plaintiff would need some "carer's assistance", perhaps a couple of hours per week. 16 The defendant gave evidence that Mr Sangster, as the sole breadwinner, provided accommodation for the plaintiff at the family home for about 20 years of his adult life. His evidence was that notwithstanding the provision of this accommodation, the plaintiff did little to maintain the family home and allowed it to fall into disrepair and become filled with an enormous collection of second-hand goods. There is no issue that at one stage the Local Council served a notice to remove accumulated rubbish. The defendant painted a picture of the plaintiff as a moody, cranky and sometimes violent person (towards objects rather than people). He also called into question the plaintiff's claim of back pain and recounted his observations of the plaintiff walking freely and moving heavy furniture on his own as recently as 2007. 17 The defendant also claimed that the plaintiff's evidence in respect of driving his parents to and from various locations was exaggerated because his licence had been cancelled for a period of five years for driving under the influence of alcohol. He also claimed that the four-wheel drive vehicle that the plaintiff purchased was inappropriate for the deceased because of her mobility problems.

18 The plaintiff claimed that after the decision to sell the family home was made in 2006 the deceased often spoke to him about her desire, and that of Mr Sangster, to buy a house for him. The plaintiff claimed that on a number of occasions Mr Sangster was present at these conversations. 19 In March 2007 the deceased telephoned Ms Payor and asked for her help in pressing the plaintiff to begin looking for a house. The deceased informed Ms Payor that she needed the plaintiff to live near her, his doctor and the hospital. Ms Payor claimed that the deceased informed her that she needed Ms Payor's help because Mr Sangster "always had it in" for the plaintiff because he did not have a degree. The deceased informed Ms Payor that the plaintiff was "nothing like" Mr Sangster. She asked Ms Payor to look after some pieces of her antique furniture for the plaintiff after the sale of the house had gone through until he purchased a house for himself. Ms Payor also gave evidence of a conversation with Mr Sangster in which he informed her of his intention, and that of the deceased, to buy the plaintiff a house and that he fully intended to do so. 20 The plaintiff claimed that after the deceased died, Mr Sangster said to him "All I can tell you is, your mother and I thought I was going to die first". The plaintiff asked Mr Sangster what was going to happen about buying him a house and Mr Sangster responded, "We discussed buying you a small house". Mr Sangster gave affidavit evidence that it was and remains his intention to assist the plaintiff by purchasing or renting a property to make provision for the plaintiff. His affidavit evidence is that it was his intention to purchase a property in his own name in which the plaintiff could reside with such property to be retained by his trustees after his death or in the alternative to rent a property for the plaintiff because it would allow flexibility for his future accommodation as his needs change. 21 In cross-examination Mr Sangster confirmed that he and the deceased wished to provide accommodation for the plaintiff but neither wanted him to be able to control the ownership of a home. It is clear that both the deceased and Mr Sangster formed the view, and Mr Sangster maintains the view, that the plaintiff is unable to manage money. Indeed in cross-examination he gave the following evidence (tr 45-46):

Q. You wouldn't want Peter to succeed in this case in a way which meant that he had complete control over money that might come as a consequence of the case? A. That's true.

Q. But the fact is that you are still willing to provide your son Peter with accommodation by some formulation, is that correct? A. Correct, yes. I agreed with my late wife that we would do that and she was 100 per cent in favour of backing me up on that and I have said to Peter since then that I wish to carry that through. 22 Mr Sangster gave evidence that although his preference was to buy a property in his name in which the plaintiff could reside he remained prepared to provide the plaintiff with financial assistance to purchase a suitable home, or home unit, either in Sydney or in rural New South Wales, by way of a substantial gift of cash deposit with the remaining purchase price and incidentals to be provided to the plaintiff by way of loan advance. Mr Sangster expressed the view that such an approach was consistent with the prior expressed intentions of the deceased during her lifetime and also consistent with his present intention. Mr Sangster gave evidence that he did not wish the plaintiff to receive any financial benefit over and above what the deceased had intended for him.

23 In Shearer v The Public Trustee; Hawke v The Public Trustee (unreported, NSWSC, 23 March 1998) Young J, as his Honour then was, dealt with the submission that the Court must be very careful about evaluating the evidence of the testatrix's statements. His Honour said:

This proposition was certainly correct before s 32 of the Family Provision Act, but in view of that section the utterances of the testatrix are now admissible. However, Mr Gray's proposition is still correct as to the weight which one would give to statements made by the testatrix.

On the other hand, statements made by applicants about the testatrix also must be received with some reserve, as the testatrix is no longer able to contradict them. Equity has long taken the view that claims against a deceased estate must be watched carefully and, indeed, in many cases, as a practical matter, Equity requires corroboration. In the present type of proceedings courts do not look for corroboration, but just as they are careful not to accept uncritically every statement the testatrix makes, so courts are also careful not to accept uncritically every statement that an applicant makes about a testatrix. 24 His Honour also said:

Where the applicant is a spouse it is nowadays usually thought that 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. 25 In Fung v Ye [2007] NSWCA 115 Young CJ in Eq, as his Honour then was, (with whom Tobias JA and Bell J, as her Honour then was, agreed) said at [25]:

Returning to the present case, I must say that Gzell J's statement at [31] that "…there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one" may give rise to unreasonable expectations by future claimants. The statement is correct as far as it goes, but the statement would also be correct that in very many cases it will not be appropriate to provide a house, or money to buy one, to an able-bodied adult child. In each case one needs to consider the basic human right of freedom of testation of the deceased, the relationship between the plaintiff and the deceased, the size of the estate and the other claimants. I would venture to say that probably in the majority of cases the evaluation of that equation will not result in an able-bodied child being "entitled" to a house or money to buy one. 26 It is clear from the provisions of her Will that the deceased was of the view that the plaintiff needed to be provided with accommodation controlled by her trustee. This view was probably reached in part because the plaintiff had lived at home in his thirties and forties and had apparently displayed such eccentricities both in his lifestyle and inability to work that it appeared someone else should be responsible for management of his financial affairs and provision of accommodation. It is clear that the deceased thought that this provision would operate in the plaintiff's favour because of her belief that Mr Sangster would predecease her.

27 The first matter to be determined is whether the plaintiff has been left without adequate provision for proper maintenance, education and advancement in life. If so, the second matter for determination is what provision ought be made out of the deceased's estate for the plaintiff's proper maintenance, education and advancement in life: Singer v Berghouse (1994) 181 CLR 201 at 208. 28 The defendant seemed to approach this case on the basis that the plaintiff is an able-bodied adult and is able to fend for himself. He also approached the matter on the basis that the plaintiff had trespassed on the indulgence of the deceased and Mr Sangster for many years. This is now a discarded categorisation and diverts attention from the focus which the Act requires to be upon the proved needs of the plaintiff and a comparison of those needs with the provision made by the Will: Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P (with whom Hope and Priestley JJA agreed) at 580. In any event, albeit that there is no medical evidence, there is little doubt that the plaintiff has some serious medical problems. 29 The plaintiff claims that the value of his assets is approximately $27,700 consisting of a 2.5 metre fishing boat and trailer ($600); a caravan ($15,500); a Toyota 4WD ($4,500); a computer ($100); AMP shares ($5,000); personal effects and electronic and lighting equipment ($2,000). The plaintiff's disability pension from Centrelink is $543.50 per fortnight. He appears to live quite frugally with no ability to save. At times he sleeps in his car and the maximum period he can spend in the caravan at its current site on the south coast of New South Wales is approximately 6 months. 30 The plaintiff was cross-examined about his claimed inability to take up employment and his recent candidacy for election in Local Government. On the one hand the plaintiff claimed that he is unable to work, but on the other claimed to be able to work as a local councillor, should he have been elected. He justified this on the basis that an "alderman is not a job per se". 31 The plaintiff did not call any medical evidence in support of his claims in relation to his health problems. Although the defendant questioned some of the plaintiff's claims and suggested that he was exaggerating his medical problems, it does appear that the plaintiff is suffering from some serious health problems. There was no evidence of any assessment of the plaintiff's capacity to work and the recent foray into the Local Government elections does suggest that, when properly motivated, the plaintiff may well be able to find some form of occupation or employment. 32 In determining whether the plaintiff has been left without adequate provision for "proper maintenance", it is to be remembered that the word "proper" is of importance and means proper in all the circumstances of the case: Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463. The circumstances of the case include the size of the estate, the needs of the plaintiff, the relationship with the deceased and the competing claims of others: In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77. There is no evidence of any competing claims. The estate is not a large estate and Mr Sangster, to whom the residue of the estate was gifted, is apparently quite comfortable financially. 33 It is also necessary to have regard to the words "advancement in life" when determining whether the plaintiff has been left without adequate provision. These words have a wide meaning: Blore v Lang (1960) 104 CLR 124 per Dixon CJ at 128. The fact that the plaintiff has not taken advantage of the opportunities provided to him for his advancement in life in the past, does not preclude further opportunity being provided to him, if it is appropriate to do so in all the circumstances of the case. The deceased wanted the plaintiff to have secure accommodation, albeit that the provision made in her Will of one quarter of the residual estate would not be an adequate provision for such security. 34 It appears that the plaintiff's life has been somewhat out of control over a long period of time. However he does appear to have taken some stock of it and his strength in not taking any alcohol for the last nine years signifies a determination that, if properly harnessed, may assist him to lead a better life. However his financial circumstances are such that he will not be able to maintain himself in the manner in which the deceased obviously intended and in the manner that he had been living during the period 1995 to 2006 with the benefit of accommodation in the family home. 35 I am satisfied that, in the circumstances, the plaintiff has been left without adequate provision for proper maintenance, education and advancement in life. The next question for determination is what provision ought be made for the plaintiff.

36 Although the plaintiff gave evidence that he would like to buy a house with a yard big enough for a companion dog, the only evidence in relation to the possible cost of properties (apart from a claim in his affidavit in relation to the possible cost of a house in the $550,000 to $650,000 range) was a number of property searches from the "Domain" web site to prove the asking prices for home units in the Bexley/ Rockdale/Kogarah area. The plaintiff's evidence was that he would like to continue living in the Kogarah area in which he grew up and in which he has lived nearly all his life. He also expressed the view that having some real property would enable him to arrange suitable retirement accommodation in later life. The asking prices for two bedroom home units with bathroom(s) and car spaces in that area range between approximately $255,000 and $333,000. There was also reliance on the same material in respect of rental properties in the area, ranging from $320 to $350 per week.

37 The defendant pressed for an order limiting any provision to the plaintiff to be controlled by a trustee. Mr Hughes submitted that there is no evidence to demonstrate that the plaintiff is not capable of managing money. Indeed he submitted that he has been able to survive for some years on a disability pension and, although he is living in a manner that is not ideal, he has been able to manage that amount in his frugal lifestyle.

38 There was evidence of the plaintiff's inability to repay an $11,000 loan and although there was reliance on the fact that the plaintiff was ill and found it difficult to work, there was no medical evidence linking such to the inability to repay the loan. There was also evidence of the plaintiff hoarding large amounts of second-hand goods in the family home to the point of causing Council intervention. There was also evidence of the difficulties in having the plaintiff move his possessions out of the family home so that it could be presented for sale with the need for Mr Sangster to spend some thousands of dollars to finally achieve that outcome. 39 Mr Hughes' submission that there was no evidence of the plaintiff having mismanaged money must be viewed against this evidence that, in my view, demonstrates at least a cavalier attitude towards the incursion of expense that he was unable to repay, or perhaps a more serious flaw in relation to the incursion of such expense. 40 I am conscious of the deceased's anxiety as evidenced from the terms of her Will, that the plaintiff not have access to the provision for him other than through a trustee and other than for the purpose of accommodation and general living expenses. Mr Sangter has a similar anxiety. The plaintiff's parents have known him all his life and have lived with him for at least two decades and in recent times for eleven years between 1995 and 2006. They were in an exquisite position to make judgments about his personality and, although those judgments must be tinged with bias and personal concern, they should be given serious consideration in determining what provision will be adequate for the plaintiff's "proper" maintenance, education and advancement in life.

41 It seems to me that the relationship between the plaintiff, his siblings and Mr Sangster has suffered because of the plaintiff's eccentricities, to use a neutral term. It would not be conducive to the plaintiff's advancement in life for the defendant or Mr Sangster to have control over the plaintiff's funds. That should not be seen as a criticism of either Mr Sangster or the defendant. It appears to me that the plaintiff's parents and family have been very supportive of the plaintiff over the years in what, at times, appears to have been very frustrating circumstances. On the other hand this is an opportunity for the plaintiff for proper maintenance and advancement in life without the dependence and burden on his family members. The fears of the defendant and Mr Sangster that the plaintiff will no take this opportunity may be tempered by the conditions I intend to impose on the provision to be made.

42 I am of the view that adequate provision for the plaintiff requires a fund of $370,000 to be made available to him on the condition that it is to be used for the purchase of a property within a range that will enable a fund of at least $20,000 to be set aside for general expenses and the maintenance of that property. I am of the view that some control needs to be put in place to ensure that this provision is used and managed in this way.

43 There is little room for an investment manager or the payment of commissions or administration fees, however it seems to me that a trustee needs to be in place to assist the plaintiff with the purchase of the property and to hold and manage the fund. This would require the plaintiff to prepare a trust deed to be filed in the proceedings. It is necessary to try to keep costs to a minimum in this process and I will hear submissions from counsel on the course to be adopted to ensure that the fund is used for the purpose as imposed in the condition of the grant of the provision. 44 The matter is listed at 9.30 on 31 July 2009 to file Short Minutes of Order and to hear submissions on the matters. **********

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