Solicitors:
Plaintiff: Paul Denmeade & Co
Defendant: Reid Lawyers
File Number(s): 2018/00161546
[2]
INTRODUCTION
Antonietta Luca ("the deceased") died intestate on 23 March 2016, aged 73 years. Letters of administration of her estate were granted by this Court to the defendant (her daughter) on 14 May 2018.
The persons beneficially entitled to the deceased's estate, under Chapter 4 of the Succession Act 2006 NSW, are her three adult children; namely, the plaintiff (a son), the defendant (his sister) and their sibling, Franco.
By a summons filed on 23 May 2018, and amended on 19 December 2019, the plaintiff applies for: (a) an order, pursuant to section 58(2) of the Succession Act 2006, that the time within which he may make an application for family provision relief under Chapter 3 of the Act be extended up to and including the commencement of these proceedings; and (b) an order for family provision under section 59 of the Act.
As a child of the deceased, the plaintiff is an "eligible person" (within the meaning of section 57 of the Succession Act) entitled to make an application under Chapter 3 without any need to establish "factors warranting" the making of an application: section 59(1)(a) and (b).
During the course of the hearing of the proceedings, the defendant (through her counsel), announced that she consented to an extension of time as sought by the plaintiff, confining her opposition to the plaintiff's claims to opposition to a grant of provision. The focus for attention, then, is on the merits of the plaintiff's application for a family provision order.
The amended summons filed by the plaintiff seeks a grant of relief out of "the estate, or notional estate" of the deceased, but no party to the proceedings contends that the notional estate provisions of Chapter 3 of the Succession Act have been engaged. Counsel for the plaintiff disclaimed any claim to "notional estate".
All three of the deceased's children gave evidence at the final hearing of the proceedings. All three were cross examined. Franco's evidence was adduced by the defendant in her capacity as administratrix of the deceased's estate. He was not separately represented.
[3]
THE DECEASED'S ESTATE
It is agreed between the parties (as recorded in MFI D16, revised) that:
1. the estate of the deceased presently comprises only a residential property at Blacktown with an agreed value of $1.1 million.
2. the costs and disbursements of the parties up to the conclusion of the hearing, when judgment was reserved, are estimated to total $148,271.12, comprising the defendant's costs of $73,373.52 (assessed on the indemnity basis) and the plaintiff's costs of $74,897.60 (assessed on the ordinary basis).
3. of the defendant's costs, $45,373.52 has been paid and approximately $28,000 remains to be paid.
4. if the plaintiff's claim were to be dismissed with no order as to his costs, the net distributable estate would be approximately $1,000,072.
5. the plaintiff's costs are estimated to be $112,346.40 on the indemnity basis and $74,897.60 on the ordinary basis.
6. if each of the plaintiff's and defendant's costs were ordered to be paid out of the estate on the ordinary and the indemnity basis respectively, the net distributable estate would then be an estimated $997,102.40.
Under section 127 of the Succession Act (in Chapter 4 of the Act), each of the deceased's children is entitled to a one third share of her estate. Hence it is that the parties' submissions, for and against the plaintiff's claim for provision, proceeded upon a working assumption that, absent a grant of further provision, the plaintiff will receive approximately $330,000 from the deceased's estate, a one third share.
[4]
THE PLAINTIFF'S CLAIM
At the commencement of the hearing the plaintiff abandoned an ambit claim which, if successful, would have granted him substantially the whole of the estate. An alternative claim, pressed at the hearing, was that (in lieu of the sum of $330,000 or thereabouts) he receive a legacy of the order of $660,000 or, more modestly, $450,000.
On the plaintiff's case, the burden of any family provision relief granted to him should be borne substantially, if not wholly, by the defendant because: (a) Franco is not materially well off; and (b) the defendant is materially well off.
[5]
PARAMETERS OF THE CASE
The parameters of the case can be shortly stated.
Each of the deceased's children had a difficult childhood because she felt trapped in an unhappy marriage to their father and, when he discovered that she had been party to a long running adulterous affair, relationships within the family became acrimonious; protracted divorce and property settlement proceedings in the Family Court of Australia ensued, during the course of which the children's father suffered a disabling stroke, following which he died; and relationships between the deceased and her children, in varying degrees, were disrupted.
The relationship between the plaintiff and the deceased became one of estrangement, with the deceased greatly embittered towards the plaintiff because he took his father's part, against her, in the Family Court proceedings. There was no contact between the plaintiff and the deceased for about 19 years, between 1997 and the time of her death. He attributes his estrangement from the deceased to her, but that rings hollow. He was content to have nothing to do with her, and he made scant effort at reconciliation with her, for too long a period to lay blame at her feet alone.
His relationship with his mother contrasts with his siblings' relationships with her. As her daughter, the defendant endeavoured over a long period to remain in touch with her, became reconciled with her and nursed her in her dying days. Franco, the eldest child, reconciled with the deceased in 1999, lived with her thereafter for about two years before he moved to the United States of America in about 2002 (where he still lives); maintained regular contact with her by birthday cards, Christmas cards and telephone calls; and stayed with her when, in 2008, he returned to Australia for six weeks.
Each of the children experienced trauma associated with their parents' breakup. Each suffered a period of estrangement from the deceased.
Unlike his siblings, the plaintiff did not become (and he took no active steps to become) reconciled with her. He had nothing to do with her for nearly two decades. Nevertheless, she went to her death, apparently content for him to receive a one third share of her estate, an amount likely to be in excess of $300,000, subject to costs orders in these proceedings.
[6]
THE DECEASED'S TESTAMENTARY INTENTIONS, IF ANY
The plaintiff is entitled to a one third share of the deceased's estate on intestacy, by operation of law, in the absence of any will made by the deceased. Whether the deceased's testamentary arrangements came into being by accident or design is a moot point, informed by the fact that the deceased contemplated making a will when she visited a solicitor on 17 February 2016.
The solicitor's handwritten notes of her conference with the deceased evidence an intention on the part of the deceased to divide her estate three ways between her three children, perhaps providing for her sons to receive their entitlement by instalments, and emphatically wanting the defendant to be "in charge" of administration of her estate. The deceased was apparently tossing up between allowing her sons a third of her estate, or giving them a legacy of $300,000. The notes conclude with entries to the effect that further thought would be given to what, precisely, the deceased wanted to do. In the event, one is left with the impression that the deceased perhaps died intestate by design.
On a fair reading, the solicitor's notes confirm that the deceased (then suffering from cancer) was closer to the defendant than she was to either of her sons; that she did not see Franco because he was living in the USA; that she had "no contact" with the plaintiff and did not know his whereabouts; that she was advised by the solicitor that, if she left nothing to her sons or made provision for them only by instalments, they could make a claim against her estate; and she wanted the defendant to be in charge of her affairs, including defence of any claim against her estate.
[7]
A REVIEW OF APPLICABLE PRINCIPLES
To succeed on his claim for a family provision order the plaintiff must establish that, viewed from a current-day perspective, he has been left without "adequate provision for his maintenance, education and advancement in life" from the deceased's estate (Succession Act, section 59(1)(c)) and that (further) provision "ought" to be made for him from the estate (Succession Act, section 59(2)).
The concepts of "adequate" and "proper" embedded in section 59(1)(c) of the Succession Act are relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19. Decision-making on such topics is fact sensitive.
In approaching the question for which section 59(2) of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what she ought to have done in all the circumstances of the case, in light of facts now known, treating her as wise and just rather than fond and foolish (In Re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 60 of the Act so far as they may be material. Whether the Court should make an order for family provision relief (and, if so, the nature and extent of any relief granted) are questions to be addressed in the context of the matters identified in section 60(2) of the Act as potentially material.
A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thompson [2017] NSWCA 326 at [1]-[2] and [83]-[87]. A finding that a deceased person deliberately died intestate should not lightly be made but, if made, such a decision also is entitled to respect.
In each case the criteria for which the Succession Act provides must be applied to the facts of the particular case without resort to normative generalisations.
Although in particular circumstances where an estate is large enough to accommodate it, provision of some security of tenure in a residence for a claimant might be called into play upon a consideration of the criteria for which the Succession Act provides, a deceased person is not generally obliged to provide an independent-living, adult claimant on his or her bounty with a dwelling or the means to support a third party: Camemik v Reholc [2012] NSWSC 1537 at [159].
By the same token, estrangement between a deceased person and a claimant on his or her bounty is not necessarily an impediment to a grant of family provision relief, but is a factor to be taken into account in all the circumstances of the particular case: cf, Andrew v Andrew (2012) 81 NSWLR 656.
[8]
THE FACTUAL MATRIX
With these general observations, closer attention must be turned to the particular facts of this particular case.
The unhappy relationships which mark the deceased's family appear to go back to the circumstances in which she and her late husband (the father of the plaintiff, the defendant and Franco) were married. Theirs was an arranged marriage, in Italy. The deceased evidently blamed her husband (Graziano) for taking her away from Italy, for bringing her to Australia. They were married in 1958, when the deceased was aged not quite 16, and shortly after their marriage they emigrated to Australia. Born in 1934, Graziano was nine years her senior.
In or about 1977 the deceased commenced a long running adulterous affair (with Vittorio). It came to the attention of Graziano in about 1981. Neither the affair nor Graziano's discovery of it brought harmony to the family.
The marriage between the deceased and Graziano was dissolved in December 1988 in proceedings that were commenced in the Family Court of Australia in 1985. The family law proceedings continued beyond the parties' divorce with ongoing disputation about property. In 1986 the deceased, with the reluctant acquiescence of Graziano, ordered the plaintiff and the defendant out of the family home. After their departure they were assisted by their father's brother, "Uncle Mario". By this time Franco had moved out of the family home in pursuit of an independent life.
After the breakup of her marriage to Graziano the deceased maintained her relationship with Vittorio. For a number of years up to about 2001, she lived with him as a de facto couple. Whether or not properly described as a "broken man", Graziano suffered the misfortune of a debilitating stroke in 1992 and died in September 1995.
At this distance, the Court is not well placed to delve too deeply into the rights and wrongs of the family law litigation. Each of the children appears to have been torn by divided loyalties and traumatised. In 1993, the plaintiff was appointed as his father's next friend in the family law proceedings to conduct those proceedings against the deceased. His active involvement in the proceedings was, on the evidence of the defendant, deeply resented by the deceased until her dying days. But the plaintiff's involvement in the proceedings was not necessarily, of itself, enough to explain the estrangement between mother and son. The defendant swore an affidavit in support of the plaintiff's appointment as next friend, although she and her mother became reconciled in time.
Unhealed hurts arising from their parents' failed marriage continue to this day to plague the children. The relationships between the plaintiff (on the one hand) and the defendant and Franco (on the other hand) are toxic, though the defendant and Franco remain on close familial terms. All that was on full display during the hearing of the proceedings. The plaintiff complained bitterly about an assault on his person, and damage to his property, by Franco at a time (not now easily identified) between about 1988 - 1993 or thereabouts. Franco was aggressively unrepentant. The plaintiff for his part insisted on offending the defendant by characterising her as wealthy. His contempt for her was reciprocated.
It would not be right, however, to attribute all disharmony within the family to historical discord between the deceased and Graziano. A running sore, as between the plaintiff and the defendant, is the fact that, in about 2008, the plaintiff borrowed from the defendant $5,000, never repaid. The defendant's perception of the plaintiff is that he is a grasping, greedy user of other people and their property.
It is neither necessary nor appropriate for the Court to enter upon controversies of this nature, or to be trapped by them. The criteria for which the Succession Act provides require a more dispassionate approach, as do the dictates of wisdom, justice and a regard for community standards.
With that in mind, attention must turn to the personal circumstances of the claimants on the deceased's bounty.
Franco was born in 1961 and is presently aged 59 years. He has been twice married, with two children (now adults) from his first marriage, and none otherwise. He has lived in the United States since about 2002. He has lost contact with his children. He currently lives in a platonic relationship with a friend. He is unemployed and in financial need.
The defendant (Diana) was born in 1965. She is presently aged 55 years. She left school at 16 and qualified as a hairdresser before her marriage in 1992. She and her husband have enjoyed a happy marriage, with material success. They have no children. She continues to work part-time as a hairdresser.
The plaintiff (Robert) was born in 1966. He is presently aged 54 years. He left school at 15. He has worked in a range of jobs, and conducted a variety of businesses, since that time. He is presently unemployed. As he tells his story, impediments to his obtaining gainful employment are chronic back pain and a need to act as a carer for Uncle Mario. He and his partner (also unemployed) are not formally married, but they have lived together as a couple for 22 years. They presently live in Brisbane. He has no children. His partner has an adult daughter by an earlier relationship, with a daughter of her own.
[9]
CONSIDERATION OF THE PLAINTIFF'S CASE
The plaintiff's family provision claim is based, in large measure (although not entirely), on a claim that he should be allowed sufficient funds from the deceased's estate to buy a house large enough to accommodate not only himself, but also his partner, Uncle Mario and the impedimentia that he and his partner have accumulated over the years. An alternative formulation of the same case is that he needs funds to purchase a house nearer to Uncle Mario's residence, to facilitate his care of Uncle Mario.
The plaintiff receives a Commonwealth pension as a carer for Uncle Mario, now a dementia patient in a retirement home.
Uncle Mario's precise medical condition and his life expectancy were not explored in the evidence beyond generalisations about his age (87 years), his dementia, his immobility and his need for assistance.
Uncle Mario was both a member of the deceased's extended family during her marriage to Graziano, and a friend to Graziano and her children in the breakup of the marriage. However, the long years after that time provide no foundation for a finding that the deceased owed a moral obligation to make provision (directly or indirectly) for Uncle Mario. Nor can it fairly be said that the defendant and Franco have a moral obligation to submit to diminution of their shares in the deceased's estate to enable the plaintiff (as he contends is his purpose) to assist Uncle Mario in whatever remains of a long life. The plaintiff's siblings complain that he has actively stood between them and any continuing relationship they might otherwise have had with Uncle Mario. Whether that be so or not, it is factually correct that the plaintiff has taken charge of a significant amount of Uncle Mario's wealth and applied it to the living expenses of himself and his partner, as well as the living expenses of Uncle Mario.
Accepting that the plaintiff is impecunious; that his lack of employment is, in part, a function of a bad back and, in part, a determination to make himself available as carer for Uncle Mario; and that his principal source of income is confined to a Commonwealth pension as his uncle's carer, it is nevertheless difficult to conclude that he has been left without "adequate provision for [his] proper maintenance, education or advancement in life" out of the estate of the deceased.
That is because he has been left an entitlement with an estimated value in excess of $300,000 and any provision for him out of the deceased's estate beyond that could be made only at the expense of his impecunious brother or the deceased's devoted daughter, a child favoured by the deceased.
This is not a case in which the plaintiff has been excluded from participation in his mother's estate.
Nor is it a case in which it can be said that the provision made for him by the deceased (by default or design) unfairly discriminated against him because, for example, he took his father's side in contested court proceedings. By leaving her children to their rights on intestacy, the deceased treated her children equally. She was not obliged (as he contends) to make provision for the plaintiff sufficient to enable him to purchase a residence. Still less was she obliged (as he contends) to make provision for him sufficient to enable him to acquire a residence large enough to house, not only him and his partner, but her former husband's brother, the aged uncle.
In my opinion, the plaintiff's case fails at the threshold. He has not established, for the purpose of section 59(1)(c) of the Succession Act, that he has been left without "adequate provision". Even if he has, there is no foundation for a finding, directed to section 59(2) of the Act, that provision "ought to be made for [his] maintenance, education or advancement in life" beyond the provision available to him on intestacy.
Upon a consideration of the factors to which section 60(2) of the Act directs attention (including section 60(2)(d), which directs attention to the "financial resources" and "financial needs" of competing claims on a deceased person's bounty), the plaintiff's claim fails to overcome the hurdles represented by the words "adequate" and "proper" in section 59(1)(c) and the word "ought" in section 59(2).
[10]
CONCLUSION
Having reviewed the statutory criteria for which sections 59-60 of the Succession Act provide, principles which govern an application of those criteria and the facts of the case, my determination is that the plaintiff's case fails at the threshold (for the reasons elaborated) and that, accordingly, his amended summons should be dismissed.
Prima facie, costs should follow the event; the plaintiff should pay or bear his own costs; as the deceased's administratrix, the defendant should be awarded costs on the indemnity basis; and costs payable by the plaintiff to the defendant should be charged against the plaintiff's beneficial interest in the estate of the deceased. There is no patent justification for imposing on the plaintiff's siblings the burden of the costs of his unsuccessful proceedings.
The parties addressed the question of costs in their final submissions, and invited the Court to express a provisional view about the nature of any costs orders to be made. This I have done.
Reserving to the parties an opportunity to be heard further on the question of costs, the only order to be made upon publication of this judgment is an order that the amended summons be dismissed.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 February 2020