Sasso v Sisinni [2009] NSWSC 35 | Case summary

2909/08 - SASSO v SISINNI JUDGMENT 1 HIS HONOUR: The plaintiff is the widow of the late Luigi Sasso who died on 8 January 2007, aged 101. 2 The plaintiff makes 2 claims: (a) for a declaration that the property at Henley of which the deceased is the registered proprietor is held on trust for her as to one half free of encumbrances and; (b) provision out of the deceased's estate under the provisions of the Family Provision Act 1982. 3 The proceedings were heard by me on 10 December 2008. Mr L Ellison SC appeared for the plaintiff and Mr P Hallen SC and Mr B Townsend appeared for the second defendant. The first defendant, a solicitor who renounced probate, filed a submitting appearance. 4 Time ran out before I could give reasons on 10 December. Indeed, the time available on 11 December was insufficient to give full reasons. I thus gave an eight page summary of my reasons and recorded my decision noting that I would give final reasons early in the new term. These are those full reasons. 5 The deceased's last will was made on 4 December 2001. There was a codicil of 7 November 2003. On 10 December 2008, I ordered that probate in solemn form of those testamentary documents be granted to the deceased's daughter by his first marriage, Laelia Verlie Aislabie, who is the second defendant. 6 The deceased had been married twice. He married Edith Hansen in 1934 when he was 29. She died in 1978. He married the plaintiff in 1983 when he was 78 and she was 58. 7 The deceased left assets of approximately $3,550,000. The great bulk of this consists of the deceased's home at Henley which has been valued at $3,500,000. 8 When the deceased married the plaintiff, each had their own home in the riverside area of what might be called the Gladesville district. The plaintiff owned a home at Tennyson and the deceased owned the Henley property. 9 The plaintiff said in evidence that, basically, the parties adopted the rule that "What is mine is mine and what is yours is yours" that is, they each managed their own property and income. However, the plaintiff says that this changed towards the end when the deceased gave up income producing work. 10 The parties lived in the Henley property as their matrimonial home. Tennyson was tenanted. They eventually decided that the plaintiff would sell the Tennyson property. The plaintiff received $418,000 net from the sale in July 2000. 11 The plaintiff says that she applied that $418,000 by purchasing annuities in her own name with a subsidiary of the AMP Society at a cost of $300,00 and used the balance to maintain the parties as the deceased's only income at that stage was his pension. 12 There is, however, little corroboration of this. 13 The plaintiff says that she put a lot of her own money into maintaining the Henley property including paying for significant renovation. 14 In July 1999, the plaintiff took the deceased to a solicitor for him to make a will. He made a will which basically provided that the plaintiff was to receive 50% of the gross sale price of Henley less agent's commission and the balance of the estate was to pass to his daughter. 15 The plaintiff says that that will was made as a result of a contract made between herself and the deceased that he would make a will making such provision for her in consideration of the plaintiff looking after him with the proceeds of the sale of the Tennyson property. 16 The deceased did make such a will. However, in 2001, without the plaintiff's knowledge, he had his daughter take him back to the solicitor and make a new will under which the plaintiff receives only 25% of the proceeds of the sale of the Henley property. 17 The 2001 will provides, probate of which in solemn form I granted to the deceased's daughter yesterday, provides in clause 6 as follows: "6. I DIRECT that my trustee sell the house as soon as possible after my death and disburse the proceeds as follows - (i) in payment of all reasonable selling expenses including agent's commission and legal fees; and (ii) the balance to be divided as follows - (a) 25% to my said wife; and (b) 75% to my said daughter, out of which share shall be paid the following legacies of $12,500.00 each, being a total of $50,000.00 ..." 18 The evidence includes a number of letters written by the deceased to his daughter. These suggest that the deceased was motivated to go to the solicitor and make the 1999 will because of the plaintiff's threats that she would leave him or divorce him if he did not do so rather than any free and voluntary agreement. 19 The deceased's version is partially corroborated by a letter from the solicitor in 1999 to both the deceased and the plaintiff recording that that he had advised the parties on both the Family Law Act and the Family Provision Act. The solicitor who did give evidence before me had no independent recollection of the advice he gave. 20 I prefer the deceased's version. However, it does not much matter as the deceased either was motivated by the threat of divorce or the promise of enjoying the proceeds of sale of Tennyson into making his 1999 will. The vital question is whether there was a contract or a mere consensus between husband and wife that did not create legal relations. 21 The plaintiff says that there was a contract that the deceased would leave his property as he did in the 1999 will and not alter it. Alternatively she says that there is an operative equitable estoppel which results in the estate of the deceased being unable to deny her claim. 22 In my view this claim fails. 23 In Baird v Smee [2000] NSWCA 253, a case which focussed on mutual wills, Handley JA said at [24]: "There is a legal presumption of some strength that informal agreements between spouses are not intended to be legally binding." 24 The principal authorities relied on by his Honour were Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91, 96 and Birmingham v Renfrew (1937) 57 CLR 666, 674-5 and 682. 25 To these should be added: Gray v Perpetual Trustee Co Ltd [1928] AC 391; Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11; Re Dale [1994] Ch 31. 26 In the Balfour case, Atkin LJ said at 578 that it was the "inevitable result of the relationship of husband and wife" that arrangements will be made between themselves which no-one would ever consider were to create rights and duties enforceable in a court. Of course, there would be circumstances where enforceable contracts would be made, but this would be the exceptional situation. 27 The evidence as to the alleged contract given by the plaintiff is that although there had been earlier discussions as to how the plaintiff and the deceased would deal with their properties, matters came to a head in 1999. 28 The plaintiff says that the deceased said to her, "I think the best way to go and the fairest way if you sell your house, is that you get half of this house (the Henley House) and Laelia gets the other half but she has to pay all the expenses out of that half". The plaintiff says she told the deceased that that sounded fair enough and that she should find a solicitor. 29 In due course, the plaintiff retained Mr Sisinni as their solicitor. 30 The plaintiff says that the deceased repeated his solution to the property allocation more than once before the parties saw the solicitor. 31 Mr Sisinni prepared the will as instructed. However, as I have already noted, later the deceased went back to the solicitor without notice to the plaintiff and changed it. 32 Even if the plaintiff's evidence was wholly accepted, she would have difficulty in establishing her case of an agreement to make a will which resulted in a constructive trust. 33 First, there is a general principle that when one is making a claim against a deceased estate, it is usual to provide corroboration. It is not a requirement of law that there be corroboration before a claim can succeed, because the absence through death of one party requires the court to approach the case with caution: Re Hodgson (1885) 31 Ch D 177; Cross on Evidence, 5th Australian edition (Butterworths, Sydney, 1996) [15150]. 34 Mr Ellison SC puts that there is corroboration in this case being the fact that the plaintiff reluctantly sold her Tennyson house as a result of the conversation. I do not consider that adequate. That the reason for selling the Tennyson property was the agreement is only evidenced by the plaintiff's own evidence. Further, the sale proceeds of $418,000 was used as to $300,000, to buy an annuity for the plaintiff. She may well have used the annual payments to pay living expenses. However, the sale of the Tennyson property, a property which was worth about a third of the value of the Henley property, for an annuity in the plaintiff's name, is hardly, to my mind, corroborative of itself, of the alleged contract. 35 There must also be taken into account the deceased's daughter's evidence that the deceased used to make a little money by selling orchids and would hide the money from the plaintiff. The daughter said that over many years the deceased made comments to her that he resented that the plaintiff controlled all the household money, even his pension. 36 The daughter also said, that sometime during 2000 the deceased said to her, "When Mal (the plaintiff) and I were in the solicitor's office, I said to her, "I will leave you 25%". She said, "No, I will divorce you and go and live in my own place if you do that!" I then offered her one third, but she said she wanted half". 37 The daughter also said that in 2001 the deceased said to her, "Don't tell Mal that I've changed the will because in the solicitor's office she threatened to divorce me. I do not believe in divorce. I only need to provide a roof over her head because she has her own income. I never had to provide her with an income. If she gets more, then she would take a small amount for herself and give the rest to her niece and nephews." 38 The plaintiff denied the alleged conversation about a divorce. The solicitor could give no evidence on the matter. 39 Having seen the plaintiff in the witness box, I assessed her as a fairly domineering woman. I gained the impression from her general demeanour that it was quite feasible that the 1999 will was brought about, not as a result of the deceased's offer to provide for the plaintiff, but by her pressure on him. 40 The daughter gave her evidence clearly and this fact with my observation of the plaintiff's demeanour leads me to the view that I should accept the daughter's evidence that the deceased did speak to her as she has given evidence. 41 Of course, the onus is on the plaintiff to establish the contract. The factors I have pointed to make it clear to my mind that she has not satisfied her onus. 42 The mere fact that the will is made which appears to carry out the agreement is insufficient. As Viscount Haldane said in Gray v Perpetual Trustee Co Ltd [1928] AC 391, 400 it is some evidence of the fact, but usually insufficient of itself. 43 The fact that the deceased had the conversations he did have with his daughter and that, within two years of the 1999 will he secretly changed it, tells against there being an agreement. 44 This view is reinforced by the plaintiff's oral evidence that she did not consider herself now bound by the alleged 1999 agreement. "That was then, this is now" she said. 45 Again, on the same authority as I have already cited, there is insufficient material on which I could find any implied promise not to revoke the 1999 will. 46 The case based on contract thus fails. 47 The equitable estoppel claim fails. Courts do not usually permit a failed case in contract to succeed even if there is unconscionability by some equitable estoppel; see eg Yeoman's Row Management Ltd v Cobbe [2008] 1 WLR 1752 (HL). 48 Mr Ellison submits that the deceased intentionally induced the plaintiff to adopt the assumption that she would be left half the house and as a result she suffered the detriment of selling her Tennyson property. 49 Mr Ellison pointed to cases such as Lieschke v Lieschke [2003] NSWSC 743 and Sullivan v Sullivan [2006] NSWCA 312 where simple statements by people to their female relatives that they would have a home for life were held to found equitable rights under the doctrine of proprietary estoppel. 50 It is difficult to gain more from such cases than it is possible for this to occur. Each case must be looked at on its own facts. 51 I do not need to review again the material which I analysed under the contract count. I do not consider, in the circumstances, that the plaintiff has established that her assumption that she would be left half the house was based on conduct of the deceased from which he should be estopped from departing. 52 This then leaves the claim under the Family Provision Act. 53 The plaintiff is 83 years of age. However, she gave evidence before me in a confident manner and is clearly in full possession of her faculties and does not have any health problems. 54 She has been living in the Henley property with the deceased and also since his death for a total of about 26 years and wishes to stay there. 55 The plaintiff's asset position and her realistic expenses are not completely clear. Her annuities evidently cut out when she is 91. Their current surrender value is about $200,000. However, basically her income is from her annuities and pensions and it appears she spends freely. She estimates her annual expenses at $46,820. 56 The plaintiff says that, apart from her need for accommodation (preferably in premises close to the Parramatta River where she has lived for the greater part of her life) she would like to upgrade her motor vehicle at a cost of between $21,300 and $37,000 and replace kitchen appliances at a cost of $5,000. 57 Mr Ellison put that this is a case of a long marriage and should be treated by the court in the same way as any other long marriage. 58 The point is valid, but with limitations. When people marry after 55, they have already acquired most of their assets and are unlikely to produce any children. There is thus a difference in the way the relationship subsists. 59 However, like any other husband, the prime duty on this deceased was to provide a home for his widow. 60 The special factors in the present case are that the house at Henley is one in which the widow wishes to continue to live. 61 The valuer's report shows that the house was constructed about 1943 and, whilst it is generally sound, it is in a generally run down condition. The indications are that, in the next decade, there could well be some substantial funds required to bring its condition up to standard in the locality. 62 The terms of both the 1999 will and the 2001 will indicate that the deceased considered that the Henley property should be sold and the proceeds distributed between his wife and daughter. 63 It is significant, that the widow was evidently content in 1999 that this should occur and that she receive 50% of the gross sale price less agent's commission. 64 Although the widow says that "That was then and this is now", there are few indications that her circumstances have changed at all since 1999. 65 There is evidence of what other properties are available in the area. Although the most common range of prices is 2.5 to 3 million dollars, there are some a little cheaper. 66 However, the plaintiff declines even to view the available properties saying that they are on main roads or too noisy and that she is entitled to retain a view of the Parramatta River which she has enjoyed most of her life. 67 The plaintiff says that she should receive the whole estate. 68 I do not consider that I would be justified in making such an order under the legislation. 69 I, of course, apply the two stage approach in Singer v Berghouse (No 2) (1994) 181 CLR 201, 209. 70 It seems to me that the provision for the widow made by the will was inadequate. Even with her own capital, the gift of 25% of a property worth $3,500,000 would be about $875,000 which would not secure a property in the desired area. 71 The best provision for the plaintiff would be to leave her in the present home at Henley. 72 The daughter is prepared to do this. She suggests a life estate and would even give an interest free loan to cover repairs etc. 73 However, this is unacceptable to the plaintiff. The plaintiff, through her counsel, says that she does not wish to be involved with any arrangement with strings attached whereby the estate has control over her living arrangements. 74 I might add that life estates are matters which judges tend to avoid as many awkward questions can arise such as, which maintenance issues are to be paid for by the life tenant and which by the remainderwoman. 75 Life estates also have inadequacies when there are elderly people involved, as such people tend eventually to need to move out of their home into a smaller residence and then into some form of care. 76 It seems to me that the 'deal' which the plaintiff was prepared to accept in 1999 sets the ceiling on what she could expect from the deceased. That is 50% of the gross proceeds of sale. 77 The order that should be made should recognise this. In my view what should happen is that if the property is sold now, the plaintiff should receive 45% of the sale price. If, however, she continues to live in the property for a while, her share in the proceeds should diminish by 2% per year. 78 It also seems to me that the best way in which the court should now do what the deceased should have done, is to provide that the plaintiff may continue to reside in the Henley property until 31 December 2020 and that the property be then sold and proceeds distributed 25% to the plaintiff and 75% to the second defendant. 79 However, that basic position should be modified so that if the plaintiff decides that she no longer desires to reside in the Henley property, the property be sold and the gross proceeds be distributed, after deducting agent's commission and legal fees as follows:

Sasso v Sisinni

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Judgment (12 paragraphs)

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Cases Cited (6)

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