Prince v Argue

Supreme Court of NSW|2002-11-07|Before: Miss J, Simos J, Macready J

CITATION : Prince v Argue [2002] NSWSC 1217 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2130/02; 4627/99; 5219/99; 5220/99; 5221/99 HEARING DATE(S) : 4-7 November 2002; 27/11/02 JUDGMENT DATE : 20 December 2002

Janet Irene Prince & 2 ors v Janet Irene Prince - Estate of Stanley Victor Allen & anor Janet Irene Prince & 2 0rs v June Irene Argue & 3 Ors PARTIES : Janet Irene Prince & 2 ors v June Irene Argue & 3 Ors Janet Irene Argue v June Irene Argue John William Argue v June Irene Argue - Estate of Irene Vonstella Allen JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Miss J.C. Pentelow for plaintiffs Mr R.D. Wilson for defendants SOLICITORS : Marsdens for plaintiffs Leo Morrison for defendants CATCHWORDS : Succession - testamentary capacity - mutual wills - no arrangement not to revoke wills. - Family Provision - whether part of household of deceased - dependency. - Family Provision - claim by children of deceased - out of time - insufficient explanation for delay - leave denied. DECISION : Paragraph 96

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

4627/99 Janet Irene Prince & 2 Ors v June Irene Argue & 3 Ors 5219/99 Janet Irene Prince & 2 Ors v June Irene Argue & 2 Ors 5220/99 Janet Irene Argue v June Irene Argue 5221/99 John William Argue v June Irene Argue - Estate of Irene Vonstella Allen 2130/02 Janet Irene Prince & 2 Ors v Janet Irene Prince - Estate of Stanley Victor Allen

JUDGMENT 1 His Honour: This is the hearing of five matters which concern the estate of the late Stanley Victor Allen and the estate of the late Irene Vonstellar Allen. Proceedings 4627/99 is one in which Janet Irene Prince and her two brothers, who are the children of the first marriage of the late Stanley Victor Allen, proceed by way of an amended statement of claim. The defendants are the three children of the first marriage of the late Irene Vonstellar Allen. Stanley and Irene, as their family knew them and as they were referred to in the evidence, were married in 1970. At times in the evidence Irene was also called Eileen. Stanley died on 10 December 1997 and Irene died on 23 March 1999 without having had children of their marriage. 2 In proceedings 4627 of 1999 the plaintiffs make a number of claims. The principal one is a claim that there was an agreement between Stanley and Irene for mutual wills which were made in 1970. The wills provided in general terms for each to leave all their property to the other and if the other had died then the property was to be divided between the six children from the former marriages of Irene and Stanley. As can be seen Stanley predeceased Irene. After his death Irene's will which had been made in 1970 was revoked when she made a fresh will under which she left the whole of her estate to her own three children by her first marriage. 3 In proceedings 4267 of 1999 the plaintiffs also made claims that Irene lacked testamentary capacity when she made her later will and that the signature on the will was not her signature. 4 Proceedings number 5219 of 1999 are proceedings commenced by Janet Irene Prince and her brothers to restrain the distribution of assets in the estate of Irene. There is no substantive claim presently on foot in the proceedings. On 24 December 1999 upon the plaintiffs giving the usual undertaking as to damages Simos J restrained the defendants from dealing with the funds then held by their solicitors. 5 Proceedings number 5220 of 1999 is a claim by Janet Irene Prince for provision under the Family Provision Act out of the estate or notional estate of Irene Vonstellar Allen. The proceedings were commenced on 23 December 1999 within time. 6 Proceedings number 5221 of 1999 is a claim by John William Allen for provision under the Family Provision Act out of the estate of the late Irene Vonstellar Allen. The proceedings were commenced within time. 7 Proceedings number 2130 of 2002 are claims by Janet Irene Prince, Robert John Allen, and John William Allen, the children of Stanley for provision under the Family Provision Act out of his estate. Proceedings were commenced on 5 April 2002 and are out of time. 8 I have ordered that all proceedings be heard together and the evidence in one be evidence in the others. The estate of the late Stanley Victor Allen 9 The late Stanley Victor Allen died on 10 December 1997. A grant of letters of administration has been made for the purposes of the plaintiffs making application under the Family Provision Act 1982. His will was made on 12 November 1970 and as I have indicated under that will he left the whole of his estate to Irene if she survived him and in default amongst the six children by their first marriages. He appointed his daughter Janet Prince and his stepdaughter June Irene Argue as executors and trustees of his will. 10 The evidence is that the deceased and Irene owned a property in which they lived and on the deceased's death that house passed by survivorship. One of the executors June Irene Argue has sworn an affidavit saying that she had no knowledge of the assets in the estate and did not even know that she was appointed executor until these proceedings were commenced. Although there is some evidence to suggest that prior to his death the deceased had some other savings there is no evidence that indicates that there are at present any assets in the estate of the deceased. There is nothing to suggest that his children may have received such assets and any other assets which he had, such as what was left in his bank account, were passed over to Irene. She subsequently benefited some of her children by giving them some of these funds which she received under the will or by survivorship. The estate of the late Irene Vonstellar Allen 11 Irene died on 24 March 1999 and a grant of probate of the last will was made to her daughter June Irene Argue. Under her will made 2 December 1998 she left the whole of her estate to her three children by her first marriage. 12 Prior to her death Irene sold the house in which she had lived with Stanley for many years. When she did so she distributed $10,000 to each of the six children. Her estate at the date of the death comprised some investments totalling $165,000.44. There presently remains the sum of $74,673.85, which is held in an account by solicitors pending the resolution of these proceedings. There was evidence of a further sum of interest amounting to $4999 which does not seem to have been accounted for by the executors. There have been distributions of $24,155 paid to each of the three beneficiaries on 8 October 1999 and $5000 paid to each of the three beneficiaries on 27 April 1999. These distributions substantially account for the difference in the estate between the date of death and the present time. 13 Substantial costs have been incurred in these proceedings. The estimates of costs of the defendants, and by that I mean the children of Irene, put their costs at the end of a three-day hearing at approximately $40,000. The plaintiffs' costs are estimated, on the basis of a four-day hearing, at $63,200. The family history 14 Before dealing with the individual proceedings it is probably useful to have a short background of the family history particularly as some of the plaintiffs in the Family Provision Act proceedings base their claims upon the fact that they were part of the household of Irene. 15 Irene was born in 1919 and was thus eighty years old at the date of her death. Stanley was born in 1924 and was 73 at the date of his death. Stanley married in 1949 and he and his first wife lived at Lawrence Hargrave Drive, Coalcliff in a house registered in Stanley's name. In 1957 they separated and Stanley continued to live at the Coalcliff house with his daughter Janet and his son John. 16 At that time the second plaintiff Robert, the eldest child, went to live with his mother at Parramatta. In 1959 Irene and her husband separated. She and Stanley met in 1961. In January 1962 Irene purchased a property at 20 Hemsley Place, Coledale for the sum of 200 pounds. 17 Between 1963 and 1966 some evidence suggests that John lived with Stanley and Irene at her home at 20 Hemsley Place. Between 1963 and 1965 it is also suggested that Janet also lived there until she left and went to live with her mother at Newcastle. In October or November 1969 Stanley and Irene purchased a property at 10 Northcote Street Coledale for the sum of $8000. They moved to the property and the third plaintiff John also lived with them at the property. 18 Stanley and Irene married on 1 May 1970. Irene was then working as a cook at the Wollongong Workers Club and Stanley was a coalminer. On 3 April 1970 Irene sold her place Hemsley Place for $7,000 and took a mortgage back from the purchasers as she left $6,300 outstanding on mortgage. 19 On 12 November 1970 Stanley and Irene signed their wills to which I have already referred. Early in 1970 the third plaintiff John who was then 16 moved to Parramatta to take up an apprenticeship and lived with his mother. In 1971 the mortgage on Northcote Street was discharged. In 1972 Stanley sold his property at Lawrence Hargrave Drive, Coalcliff to the first plaintiff Janet and her husband for a price of $7500. 20 In 1977 Stanley retired from coal mining at the age of 53 years. Stanley died on 10 December 1997. Following his death Irene went to live with the second and third defendants. Early in 1998 arrangements were made to transfer any money in the deceased's bank to Irene. In May 1998 Irene went to Queensland for about three months and moved in with first defendant June. She had previously in March sold the property at Northcote Street and received $236,207.49, which was deposited, in her account. 21 In November 1998 Irene went on a trip to Norfolk Island and then returned to live in Queensland with the first defendant June Argue. It was on 2 December 1998 that Irene made her last will and testament by which she revoked her 1970 will. In February 1999 Irene was admitted to a nursing home in Caloundra and she died on 24 March 1999. The claims in proceedings 4627 of 1999 22 In paragraph 14 of the amended statement of claim it was alleged that the signature on the second will purporting to be the signature of the deceased was not the signature of the deceased. The plaintiffs called no evidence suggesting this was the case. Accordingly there is no basis for setting aside the grant of probate on this ground.

23 In the amended statement of claim it was alleged that at the time of making her last will the deceased was not of sound mind and understanding as she was suffering from severe dementia or advanced Alzheimer's disease. 24 The only medical evidence called by the plaintiff on this aspect was evidence from Hayley P Bennett who is a consultant clinical neuro psychologist. She was given copies of various medical records and affidavits. Some of the medical records to which she referred were tendered. Her conclusion in her report was in the following terms: -- "Mrs Allen was a lady who, in the last years of her life may well have been suffering from dementia with Lewy Bodies, although the diagnosis might also have been a combination of Alzheimer's disease, vascular dementia, and Parkinson's disease. She was clearly diagnosed as suffering from a mild degree of dementia at May 1998, when her GP considered that she was likely to have retained sufficient mental capacity to be able to make a will. By January-February 1999, Mrs Allen's cognitive state had deteriorated to such a stage that she could have been considered to have been severely demented, with the medical practitioner who evaluated her at the time opining that she was likely to have had capacity to make a will at the time. Thus at some stage between May 1998 and January 1999 Mrs Allen is likely to have lost her testamentary capacity. As the basis of her dementia was neurodegenerative (as opposed to a stroke or other aetiology that would bring on an abrupt onset), the deterioration is likely to have been initially gradual, even though a more marked period of deterioration is documented to have occurred from January 1999. Given this, I consider it possible that Mrs Allen did not have the requisite mental capacity to make a will in December 1998. I do not consider it more probable than not however, given the lack of documentation at the time, and I am reluctant to give an opinion that capacity was intact for the same reasons, that being due to lack of positive evidence to place an opinion on." 25 On the basis of this evidence I would not be satisfied that the deceased lacked testamentary capacity at the time of making her will. Although not pleaded in her statement of claim it was also suggested that the deceased was suffering from delusions which affected her testamentary capacity. The particular delusions which were said to be exhibited comprise statements by the deceased that the children from Stanley's marriage had received all his superannuation and that they had had their fair share. 26 This is said to be apparent from the defendants' evidence concerning this aspect. James Green gave evidence in his affidavit of a discussion which he placed after the distribution of the $10,000 and before the change of her will. Irene indicated to him that she wanted to change her will. He asked why and she said: "Well Janet never comes near me, she wants nothing to do with me and Stan's kids have spent all his money" 27 Beverly Fisher, the second defendant, gave evidence of discussions on two occasions. The first was a just before the house was sold in December 1997 when the deceased, Irene, told her that she was going to sell and give each of the six children $10,000. According to Beverly she went on to say: "Janet, John and Robert have had enough. Stan has already given them what money he had and with this $10,000 each that is enough." 28 The second occasion occurred in June 1999. Irene referred the fact that she made and a new will and went on to say: "Janet, Robert and John have got their share because when Stan got his payout from the mines he kept all the money and gave it to them. I also gave them $10,000 each when I sold the house". 29 There is evidence by the children of Stanley that they did not receive any payout which he had received from the mine nor in fact had received any money from him. The statements by Irene are thus wrong in the sense that they are inaccurate. There was no cross examination directed to these aspects and there is little other evidence directed to establishing that these beliefs were held on some irrational basis. An insane delusion is a fixed and incorrigible false belief out of which the sufferer cannot be reasoned. There is no doubt that where there is an insane delusion which impacted upon a will the onus of proving capacity lies with the person seeking to uphold the will. Certainly the nature of what was said by Irene would have impacted upon her testamentary act because it directly goes to those who she was to benefit. However I am not satisfied that it was an insane delusion. None of the deponents, for example, challenged what was said by Irene and just accepted her statements. 30 Irene may have been mistaken and this may result from the way she and Stanley confided in each other about their property. A mistaken belief is not a delusion. In the circumstances it seems to me that there is no basis to suggest that the deceased lacked testamentary capacity at the time she made her last will, whether by way of insane delusion or as a result of her descent into Alzheimer's disease and dementia and, accordingly, the claim should be dismissed. The mutual wills claims 31 The agreement for mutual wills is pleaded in paragraphs 4 and 4A of the amended statement of claim. In paragraph 4 it is pleaded that the agreement was on 12 November 1970 the date of the wills. 32 In paragraph 4A it was pleaded that there was an agreement prior to the death of the said Stanley Victor Allen. There are pleadings of a term of the agreement that neither of them would revoke their respective wills entered into pursuant to the agreement and an implied term that the survivor of them would not make substantial inter vivos gifts or otherwise deal with his or her property in a manner inconsistent with the mutual wills agreement. 33 There is a pleading that there was a breach of this latter term in that in 1988 the deceased gave the third and fourth defendants about $12,500. In the evidence it also appeared that the deceased had given another defendant the sum of $8000. I have given leave to the plaintiff to amend the statement of claim to include this additional allegation.

34 In Birmingham v Renfrew (1937) 57 CLR 666 the High Court set out a number of principles which apply in respect of mutual wills. At page 674 His Honour Chief Justice Latham had the following to say:- "There was evidence which, if believed, justified the learned judge in finding that the existence of the agreement in the terms already stated was established. Those who undertake to establish such an agreement assume a heavy burden of proof. It is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question. Perhaps most husbands and wives make wills "by agreement," but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind of binding obligation. The mere fact that two persons make what may be called corresponding wills in the sense that the existence of each will is naturally explained by the existence of the other will is not sufficient to establish a binding agreement not to revoke wills so made (In re Oldham 60 (1925) Ch. 75; Gray v. Perpetual Trustee Co. 61 (1928) A.C. 391; and see Lord Walpole v. Lord Orford 62 (1797) 3 Ves. 402; 30 E.R. 1076, where attention is directed to many considerations which may go to show that in a particular case no binding agreement was intended)." 35 At page 681 His Honour Dixon J agreed that the agreement can only be established by clear and satisfactory evidence. He went on to expand on the result of the agreement found by the trial judge in these terms:- "Gavan Duffy J. found that an agreement had been made, and I do not think that his finding can be set aside. He found, too, that the arrangement was not of a character leaving legal relations unaffected. So far as this is a question of fact, I think he was fully justified in taking the view that the wife meant to obtain from her husband a promise and meant that it should be communicated to the intended beneficiaries in order the better to ensure its fulfilment. I think the legal result was a contract between husband and wife. The contract bound him, I think, during her lifetime not to revoke his will without notice to her. If she died without altering her will, then he was bound after her death not to revoke his will at all. She on her part afforded the consideration for his promise by making her will. His obligation not to revoke his will during her life without notice to her is to be implied. For I think the express promise should be understood as meaning that if she died leaving her will unrevoked then he would not revoke his. But the agreement really assumes that neither party will alter his or her will without the knowledge of the other. It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will which he undertook would be his last will." 36 These passages refer to what has been described in later cases as the key element in the concept of mutual wills, namely, the agreement not to revoke. See Re Newey (decd) (1994) 2 NZLR 590 at 593, Re Goodchild (1997) 1 WLR 1216 at 1225 and Hubbard v Mason (Santow J, unreported, 9 December 1997). They illustrate the requirement that the parties must have intended to enter into legally binding relations. They also refer to the burden of proof, which in New South Wales is the ordinary civil standard under s 140 of the Evidence Act. Having regard to the subject matter this would require clear and satisfactory evidence. See Hubbard v Mason at p 17. 37 There was some debate before me as to whether or not it was necessary to establish a formal contract between the relevant testators. The plaintiff relied upon a careful analysis of the cases by Julie Cassidy in her monograph "Mutual Wills". In that at pages 11 to 20 she argues that all that is required is proof of a common understanding or intention. The defendants suggested that this was not so and referred to two first instance decisions which held otherwise. These included Sheslow v Kostin (Young J, unreported 2 May 1997) where His Honour said: 38 "However all the cases seem to me to insist on there being a contract which is enforceable at law before the principles can apply. This I think out most clearly in Re Cleaver (1981) 1 WLR 939 and in Re Dale (supra). Indeed it seems to me that the judgment of Dixon J in Birmingham v Renfrew (1937) 57 CLR 666 at 686 makes it clear that unless there is a contract enforceable at law the principle does not apply"." 39 Another case was Hubbard v Mason to which I have already referred at pages 17 to 20. In order to determine whether this debate will be significant I will consider the evidence in the matter. 40 The wills of the deceased were not expressed to be mutual wills. They were however drawn in corresponding terms. There is no other written agreement between them concerning the matter. The only evidence that was tendered consisted of statements by them to their children and the court is asked to infer the agreement as a result of such statements. In these circumstances it is necessary to carefully consider the evidence that has been given. 41 The principal evidence that was given in relation to the agreement not to revoke the wills was that of the plaintiff Janet Prince. She deposed to a conversation which she had with her father Stanley early in 1971. In her affidavit she recounted the conversation in the following terms: -- "Dad: "We have joint wills because of the six children and our wills will never change. Everything will always go six ways." Eileen: "My daughter June and you are the executors, one from each of the families and now we won't talk about dying anymore. These wills are fair and it is the way we want them to be." 42 She also spoke of a visit by her father Stanley and Irene in July 1997. They both sat down at the dining table and Stanley her father continued to write out a list. During the course of the evening she said another conversation occurred in the following terms: -- Eileen: "My will is exactly the same as Stan's. Both wills will stay exactly the same and they cannot be changed by either person." Dad: "Make sure you keep this list when we give it back to you" 43 They took the list when they left that day and some weeks later Stanley visited her again. At that time he gave her a copy of the list, which was in the following terms: -- Stanley Victor Allen Irene Vonstel Allen 10 Northcote St Coledale 10 Northcote St Coledale Born 21 July 1924 Born 1 June 1919 Burial Cremation Will Burial Cremation Will Ashes Cover Grand United To Coledale Nil Chuck Jack Wright or Bob Shadlow Funeral covv same as husband Coal-cliff Miners Lodge Will same curtis Will as per will curtis Bulli Same as husband All to wife thence (total balance) " To six children (both marriages) " Mother's name Ethel Gurney born England As per birth Father's name Lewis Allen deceased born England Certificate Executtives of property and will Same Janet Allen June Argue " Assetts Thirroul commonweath Thirroul comm. 200 19248 Bank 23636 60th fixed 13th bankcard Bank NSW Thirroul (0411213) 844602 Retirement fund $9000 approx 5.00 (mon) Jim Green wants to buy no agree Other 5 out for house (ok by me) Enclosed 1 degree niza Enclosed 1 degree nisa 1 birth certificate 1 Deeds to house (curtis) Previous husbands name Previous wife V.P.Miller A.E Green deceased Parramatta Torrodgio Now Bulli

44 Janet's husband Brian gave evidence as he was present during part of the conversations. His recount of the conversation indicated the intention to leave to the six children but made no mention of the agreement not to revoke. In cross-examination he retreated substantially in respect of his recollection of the matter. There were a number of witnesses who gave evidence of conversations that referred to the wills providing for the estate to be split six ways but making no reference to the wills not being able to be changed. The third plaintiff John Allen gave evidence that in 1993 he took Stanley to Prince Alfred hospital in Sydney to have an operation. There was a conversation between the two of them when Irene was not present in the following terms: -- "I want you to know about the wills. If anything happens to me you get in contact with June and Janet. They are the executors of my and Eileen's will. They know what to do. If anything happens it's okay for Jimmy Green to buy the house. He's always wanted that. Jimmy will buy the five of you out. The wills have been made up. There should be no worries with anything. Everything is going to be split six ways and the wills can't be changed." 45 In his cross-examination the third plaintiff repeated the conversation and he did so in a natural manner including the words "it can't be changed". There was debate about the admissibility of the conversation when the affidavit was read and I admitted it provisionally. That debate was renewed in final submissions when it was suggested that the evidence did not fall within the exception to the rule against hearsay involving declarations against interest by deceased persons. It was submitted that in these circumstances the conversation was not such that the first deceased was admitting to a constraint upon the exercise by him of a freedom of his testamentary disposition but rather, as Mr Allen stated, he wanted to ensure that his children got their "fair share". Reference was made to Nowell v Palmer (1993) 32 NSWLR 574 and "Cross on Evidence" at paragraphs 33010-33070. The statement by Stanley is clearly inconsistent with the full use of the legal rights which are incidental to the ownership of property. It is thus admissible as a statement against interest. 46 Evidence was also given by Mrs Verna Harris who was an old friend of the deceased. She had moved into the house next door to Stanley in 1951 and lived there for 13 years. She recounted a conversation that she had with Stanley in July 1998 over a cup of tea. In response to statements by Verna about what she proposed to do with her children Stanley is reported to have said: Stanley: "There will be no trouble with us either because whoever goes first, the other will make sure the family gets their share. The house will go to the other first, and then it will be sold and shared between the six children." Irene: "I have agreed with that and our wills are all fixed up." 47 Mrs Verna Harris was cross-examined about the conversation and the conversation was put to her in terms that excluded the words "the other will make sure the family gets their share". She agreed with a conversation in that form and agreed that it clearly summarised her recollection of the conversation. However, the cross-examination did not go on to suggest that the words which were left out did not in fact occur. The evidence which I will accept is the form in the affidavit. It is important because Mrs Harris was independent from the parties. The particular words in question may be somewhat suggestive of some agreement. 48 When one stands back and looks at the evidence there are a number of matters that have to be taken into account. Important matters are as follows.

(a) The wills themselves were not described as being mutual or joint or having been made pursuant to any agreement not to revoke.

(b) The solicitor who drew the wills for Stanley and Irene, Mr Curtis, was still available to be called but he was not called. In these circumstances it can be assumed that his evidence would not have been of assistance in establishing the existence of an agreement not to revoke their wills at the time the wills were made in 1970.

(d) On many occasions the deceased discussed wills with their children without making reference to the fact that the wills could not be changed. If there was either an agreement or a clear understanding between the parties about this it is more likely that it would have been mentioned in at least some of these conversations.

(e) Exhibit B is simply a listing of important information which was given to one of their executors. In my view, there is nothing in it which refers to or suggests that there is an agreement not to revoke. The reference to wills merely reiterates the contents of the wills. The fact that there is this document recording important details and it does not refer to the agreement is very significant.

(f) The conversation recounted by Mrs Harris in her affidavit, which I am prepared to accept, is ambivalent.

(g) The first conversations with Janet Prince immediately after the wills were executed were a long time ago. However, the conversation with John Allen is recent as is the last communication with Janet Prince. 49 A consideration of these matters and the evidence in the case does not demonstrate to me that there was an arrangement or understanding between Stanley and Irene not to revoke their wills much less a contract not to revoke them. 50 Accordingly, proceedings 4627 of 1999 should be dismissed with costs. 5220 of 1999 - The claim by Janet Prince on Irene's estate 51 The plaintiff will only be an eligible person if she was at some time part of the household of which the deceased Irene was a member and was at some time dependant upon the deceased. 52 There was some dispute on the evidence about the time that Janet and John lived in Irene's house when they were growing up. It is clear that Stanley and Irene met in 1961 when Irene was living in her place at Hemsley Street, Coaldale which she then purchased in 1962. There was evidence from a number of people that they commenced to live together in her place. 53 Janet gave evidence that she lived at Irene's place for two years from 1963 to 1965 from the age of thirteen to fifteen years. She then left school, got a job and went to live with her mother at Parramatta. John also gave evidence that he lived there at Parramatta at the same time. The evidentiary difficulty comes from the evidence of Mr Green in that he was living there in 1963 to 1965 and there was therefore no room for Janet and John to live in the house. 54 A consideration of this evidence suggests that the Greens are not accurate with dates and that they were likely to be living there in 1962 and again in 1965 and 1966 when their house was being built. In the circumstances I propose to accept the evidence of the two children in contrast to the recollections of others who did not have a reason to have an accurate recollection. 55 I am satisfied that both Janet and John were part of Irene's household for two years. 56 The other question is whether she was dependant upon the deceased Irene. 57 In Ball v. Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

58 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

59 This passage emphasises the factual nature of dependency be it financial or otherwise.

60 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 61 In Petrohilos v. Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

62 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 63 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

64 In this case the evidence establishes that Irene owned the house in which they lived and thus Janet was dependant upon Irene for her accommodation. Given her age she would also have been emotionally dependant on the deceased Irene. 65 However it is also necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 66 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

67 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 68 Given the two year period that Janet lived with Irene it seems to me that she would be someone who would fall within the traditional way of considering the matter. In case the matter should be looked at on the basis of the chances of her success I will now consider her claim.

69 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

70 I turn to the situation of the plaintiff Janet Prince. She is married and lives at Bulli. She and her husband own their house at Bulli and the house is also occupied by their son, daughter-in-law and grandchildren. Although they will be moving out, another of their children who is a single mother will probably be moving in to share the house. Janet's husband is a contract miner and he earns $37,440 a year. Janet works part-time as a shop assistant and earns $16,500 a year. At present they owe $150,000 on their house mortgage. 71 The only contribution Janet received from the deceased was $10,000 that was distributed by Irene after the sale of the house. There was some suggestion in the evidence that there was a cooling of the relationship between Janet and Irene but I am not satisfied that this in fact occurred. However, the contact with Irene in later years was less than that between Irene and her children. It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In her case there is an obvious problem with her accommodation at her home. Because of their obligations towards their children Janet and her husband are living in a granny flat at the back of the house. They obtained a quote for the cost of turning that flat into a large four bedroom, bathroom, lounge area. The cost of that work is $14,950. Certainly this is a matter which should be accommodated if the estate has sufficient funds. I will come back to this aspect after I consider the claim by the other plaintiff on this estate. 5221 of 1999 - The claim by John Allen on Irene's estate 72 In respect of the claim by John the same situation as far as eligibility is concerned applies. He lived in the household with Irene and clearly he was part of the household and dependant upon her. He also resided in he home at Northcott Street, Coledale between 1969 and 1970 which home was owned jointly by Stanley and Irene. He left home when he was 16 years of age so that he could take up an apprenticeship. Similarly in respect of various factors warranting on the traditional ground they are present. 73 John Allen is 49 years of age and lives with his partner. He is an owner driver and has a truck which is leased. His current income is about $1,100 per week. He has difficulties with his knees and is partially blind but can still work. Fortunately he is still able to drive and receives assistance from his partner to do the administrative work for his business. He apparently owns his house at Ambervale. 74 The only amount which he received from Irene was the $10,000 distributed after the sale of the house. There is nothing to suggest that the relationship between him and Irene was not satisfactory. After the death of his father he kept in contact with Irene and assisted her. 75 John Allen puts forward a case to make changes to his house because of his limited accommodation. His 19 year-old daughter lives with him and he fosters a 15 year-old girl, Katrina, who also lives with him. What he wishes to do is to build a three bedroom portable home at the back of his house and that has been costed at $85,573. His house is worth $280,000 to $300,000 and his house is subject to a mortgage of $100,000. He is able to repay more than his required payments on the mortgage. He has $4,000 to $5,000 in the bank and has few other assets. I would have thought he would be able to borrow some more funds given his excess repayments and, indeed, he does envisage making borrowings to erect the improvements. He had superannuation of $30,000 - $40,000. 76 It is also necessary to have regard to the situation of others having a claim on the bounty of the deceased. In this case it is the three children of Irene. I turn first to the situation of June Argue. She is aged 63 years and her husband is aged 67 years. They are both retirees and live on a pension. They own their own house and contents and have a 1998 model car which is worth about $10,000 but on which they owe about $9,000. As with the other children they received a distribution of $10,000 from Irene. June also had the benefit of $8,000 which was paid by Irene to connect electricity to her house. 77 There is nothing to suggest that their relationship was not satisfactory. 78 Beverly Fisher is 60 years and she is married with one adult child who is self supporting. She owns a house at Mackay jointly with her husband and they have a 4-wheel drive car worth about $18,000. She has a caravan worth about $7,000. She has savings of approximately $15,000 being the amount left over from the distributions to her from her mother's estate. She and her husband are both pensioners. Her pension is $315.70 a fortnight and her husband's pension is $338.40. They have monthly repayments on their car of $389. Mrs Fisher suffers from high blood pressure and her husband has recently undergone a number of operations. 79 As with the other children she received $10,000 from Irene after the sale of her house. 80 Mr Jimmy Green is 59 years, married with four adult children. He owns his house and has a couple of race horses as a hobby. He owns two cars and a small fishing boat and recently ceased his business as a result of cancer. 81 Mr Green had the benefit of the $10,000 distribution along with his brothers and sisters and the parties and he also received a further $10,000 from Irene towards the cost of alterations to his house. There is nothing to suggest that his relationship with his mother was other than satisfactory. He did having a falling out with Stanley but that did not impact on the relationship with Irene. 82 All of Irene's children received a partial distribution to which I have earlier referred and in the case of June Argue and Beverly Fisher it was certainly needed by them. They particularly are not well off. Given the lack of detail it is hard to say precisely what is the situation of Mr Green but certainly he could not be described as affluent. 83 It is necessary to consider what is appropriate in respect of the claims by Janet and John on Irene's estate. Having regard to the fact of the other claims on the deceased's bounty and the amount of the estate the amount available for distribution will be affected by any costs orders. Proceedings 4627/99 will be dismissed and orders made against the plaintiffs for costs. The estimates of costs which I have set out earlier in the judgment were global estimates of the parties. It would seem to me that the actual costs involved in the Family Provision Act claims on Irene's estate will be substantially less. In these circumstances it seems to me that what remains in the estate will be sufficient to cover the impact of costs and the orders that I propose to make. In any event the claims on Irene's bounty by her children, in contrast to the stepchildren, are such that the amount distributed to them should not be disturbed. 84 The claim of Jane Prince is for a sum to make a small alteration to her property. In the circumstances I think that an appropriate order is that she receive a legacy of $17,500. 85 So far as John is concerned I do not see that he should expect the whole cost of the alterations which he plans to be funded by the estate. There are other, somewhat older persons, who have a good claim on the testator's bounty. I think an appropriate order would be for him to receive a legacy of $27,500. 86 To the extent that costs exceed the amount which I have estimated then the legacies will of course abate noticeably. 2130 of 2002 - The claim of the three plaintiffs on Stanley's estate. 87 The plaintiffs are all eligible persons being children of the deceased. There is no evidence of any assets held by the estate. There is no evidence of any gifts before his death and the distribution of his bank account was to the deceased's wife, Irene, after his death. It was suggested in submissions that, as there was a prescribed transaction as a result of the failure to sever the joint tenancy, there was notional estate. Section 23 of the Family Provision Act allows the court if there has been a prescribed transaction to make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for the disponee or where there is more than one disponee, any of the disponee's, whether or not that property was the subject of the prescribed transaction. 88 In the present circumstances the disponee was, of course, Irene and she is now dead. There is now no property held by or on trust for her and thus the Court does not have power to make an order in respect of notional estate. In these circumstances there is no estate or notional estate out of which an order can be made. The claim should, accordingly, be dismissed. 89 Because the application is out of time it would also be necessary for the Court to consider section 16 of the Family Provision Act that allows an application to be made notwithstanding it is out of time. There are a number of cases that refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 90 His Honour Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at 'sufficient cause" under 16(3) of the Act the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 91 Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989). 92 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 93 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 94 Although there was some partial explanation for the recent delay since February 2001 there was no explanation for the delay in making the application which occurred before that time. The absence of such an explanation is probably because in the period before Irene's death there was no wish to make a claim. Having regard to the insufficient explanation, leave should not be given. 95 The claims should be dismissed with costs. 96 The orders that I make in these matters are as follows:

In matter 4627/99 I order that the proceedings be dismissed and order the plaintiffs to pay the defendants' costs. 2. In matter 5220/99 I order - (a) That the plaintiff receive a legacy of $17,500. (b) That interest be payable upon the legacy at the rate provided for under the Wills, Probate & Administration Act on and from one month from today's date. (c) That the plaintiff's costs on a party and party basis (except for the application to re-open) and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. (e) I will hear argument on the costs of the application to reopen. 3. In matter 5221/99 I order - (a) That the plaintiff receive a legacy of $27,500. (b) That interest be payable upon the legacy at the rate provided for under the Wills, Probate & Administration Act on and from one month from today's date. (c) That the plaintiff's costs on a party and party basis (except for the application to reopen) and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. (d) I will hear argument on the costs of the application to reopen. 4. In matter 2130/02- I dismiss the proceedings and order the plaintiffs to pay the defendant's costs. 5. In matter 5219/99- (a) I dismiss the proceedings. (b) I will hear submissions as to costs. **********

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