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

Peter John Sangster v Nicholas Charles Sangster as Executor of the Estate of the late Christobel Mary Sangster - [2009] NSWSC 695 - NSWSC 2009 case summary — Zoe

[13]

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.

[16]

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.

[17]

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):

[25]

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.

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