Sherlock v Guest [1999] VSC 431

Supreme Court of Victoria|1999-11-12|Before: BEACH, J.

The first plaintiff Allen George Hamilton Sherlock is the son of Dudley Hamilton Sherlock deceased. The second, third, fourth and fifth plaintiffs Melinda Jane Sherlock, Kristen Eve Sherlock, Anthony Dean Sherlock and Danielle Louise Sherlock (the grandchildren) are the children of the first plaintiff and thus the grandchildren of the deceased. Melinda is presently aged 32, is married with children of her own, and is supported by her de facto husband. Kristen is aged 29, is said to be working for herself, and is paying off a unit in St. Kilda East. I assume that she is single. Anthony is aged 28, is a qualified plumber but due to a knee injury is unable to work as such. It is said that having studied to be a masseuse he now works part time as such and also works on fishing boats. Finally, Danielle is aged 25, works part time as a naturopath and part time in a health food shop in Western Australia. It is said by the first plaintiff in his affidavit sworn 15 October 1999 that none of the grandchildren have substantial income or assets.

The net value of the deceased's estate for probate purposes is approximately $1,130,000. The principle asset in the deceased's estate is his home at 226 Bay Street, Port Melbourne.

By his will the deceased left a life interest in his home at Port Melbourne to his housekeeper Victoria Kinsmore. The balance of his estate (and after the death of Victoria Kinsmore the Port Melbourne property) was left as to 80% to the Lions Village Licola Incorporated, as to 10% to his son the first named plaintiff and as to 10% to the grandchildren.

For many years prior to his death the deceased had been an active member of the Port Melbourne Lions Club and very interested in its project at Licola which was a camp for underprivileged children.

At the time the deceased gave instructions to his solicitor to prepare his last will and testament, he also instructed his solicitor to prepare a testamentary statement. The statement reads:

"Re: My Will: Dated the 15th day of December 1994 In making my Will I have left what I believe to be an adequate amount to my son ALLEN GEORGE HAMILTON SHERLOCK and to his children. I was divorced by Allen's mother when he was about four years of age and I provided for his schooling and maintenance until he turned twenty one. At the time he was in the wool broking business and he left that business about twenty years ago when he came to work for Dudley Sherlock Pty. Ltd.: (a) I gave to him the money for two blocks of land at Phillip Island. (b) I contributed substantially to the erection of a house there. (c) I paid him substantial wages and bonuses and gave him a vehicle without expense to himself. He had a vehicle the whole time he was with Dudley Sherlock Pty. Ltd. (d) I sold him One Hundred and Seventeen Shares (117) in Dudley Sherlock Pty. Ltd. and my wife at that time, JOCELYN, sold him One Hundred and Sixteen Shares (116) for a total price of One Dollar for the One Hundred and Seventeen Shares (117) and One Dollar for the One Hundred and Sixteen Shares (116). He has been able to establish his own business of Allen Sherlock Pty. Ltd. dealing in Builders Hardware by reason of the fact that Dudley Sherlock Pty. Ltd. handed to him all its customers, its stock at cost, all its agencies and trade debtors, but subject to the trade creditors. This was worth a great deal of money to him and was in fact a gift of the good will of the business. Allen is married with four children. Save that he worked for me for some years as an employee for which he was adequately reimbursed, he has never done anything to help me accumulate such assets as I possess. I was formerly married to Sylvia Jean Sherlock. We were divorced about 48 years ago. I was married to her for about eight years only. Since that time I have been paying maintenance for her which has been varied over the years and which is currently $250.00 per month. She has assets of her own and is significally independent. She receives a pension from what was Melbourne Harbour Trust. I was never ordered to pay maintenance and the $250.00 per month is a gratuitous payment on my behalf that I have been paying for nearly 50 years."

Finally in this connection, it is necessary to say something about the marital background of the deceased and his more recent relationship with the plaintiffs.

It would appear that the deceased married his first wife Sylvia some 58 years ago. The marriage was fairly shortlived, lasting some eight years. The only child of the marriage is his son the first plaintiff.

The deceased subsequently married his second wife Jocelyn. There were no children of that marriage. Jocelyn who also took an active interest in the Port Melbourne Lions Club and the Licola project died some years ago. For about the past 10 years of his life the deceased was looked after by his housekeeper Victoria Kinsmore.

Contrary to the statement in paragraph 9 of the first plaintiff's affidavit sworn 15 October 1999 that all the grandchildren had a good relationship with their grandfather, the overwhelming predominance of evidence is to the effect that certainly over the last years of the deceased's life they and the first plaintiff had little contact with the deceased. Indeed the first plaintiff did not even attend the funeral of the deceased.

The point is made by William Wilson Parrish who was a friend of the deceased for more than 20 years prior to his death. The relevant paragraphs in Mr. Parrish's affidavit sworn 29 October 1999 read:

"9. I refer to paragraph 9 of the affidavit of Allen Sherlock sworn 13 October 1999. From my knowledge of, and discussions with, the deceased I am surprised at the statement in that paragraph that - "All the grandchildren had a good relationship with their grandfather." 10. I recall an occasion some years ago when the deceased told me that, despite sending Birthday and Christmas cards to his grandchildren on a regular basis (being the children of Allen Sherlock), he never received a reply from them. I recall his exact words after telling me this: "I just get no love or affection from them." 11. This was one of the rare occasions on which the deceased ever made mention of his grandchildren. 12. I attended the deceased's funeral. His only child, Allen Sherlock did not attend. I am unable to say whether any of the deceased's grandchildren attended, as I would not have recognised them had they done so."

At all events on 21 September 1999 the plaintiffs caused an originating motion to be filed in the Court by which they seek an order that further provision be made for their proper maintenance and support out of the estate of the deceased. As the limitation period for making such a claim has expired I now have an application on their behalf to extend the time within which the application can be made.

In the ordinary course of events one would be tempted to say that as the plaintiffs' claims are only one month outside the six month limitation period leave should be granted, as to do so would cause no prejudice to the beneficiaries of the deceased's estate or for that matter his executors. All the more so since the fact that the plaintiffs intended to make such a claim was known to the executors before the limitation period expired and there had been certain negotiations between the parties concerning the matter prior to its expiration.

But be that as it may, before I am entitled to grant such an application I must be satisfied that the plaintiffs have made out an arguable case for relief. See Clayton v. Aust (1993) 9 W.A.R. 364 per Malcolm, C.J. at pp.369 and 370.

The short answer to the plaintiffs' application is that I am not satisfied that the plaintiffs have made out an arguable case for relief, indeed the reverse is the situation.

If I could deal first with the claim made by the deceased's son.

In the first place I have no evidence as to the son's present financial situation. He states in his affidavit of 15 October 1999 that he contributed to his father's wealth by working as managing director of his father's company Dudley Sherlock Pty. Ltd. between 1968 and 1979. That may well be so. But as he also points out, in 1979 he established his own company and bought the stock of his father's company.

Of course, if the content of the deceased's testamentary statement is correct and the deceased's son has not sought to challenge it, not only did the deceased's son acquire the stock of the company at cost, he was also made a gift of its customers, its agencies, its trade debtors and its goodwill.

And there are of course the further benefits he received as set out in the testamentary statement.

Finally in this regard there is the entry in the white pages telephone directory relating to the deceased's son's business Allen Sherlock Pty. Ltd. (see paragraph 15 of the affidavit of John William McClusky sworn 29 October 1999).

"(Sherlock Wheelbarrows) Hardware Wholesalers 2/25 Havelock Road Bayswater."

The "Sherlock" brand of wheelbarrow would be as well known to those in the building trade as the "Victor" motor mower is to gardeners.

On the material before me I am not satisfied that it is arguable that there was a moral obligation upon the deceased to make any provision for his son from his estate other than the provision he did.

In my opinion one can make somewhat similar observations in respect of the claim of the grandchildren.

There is no moral obligation upon a grandfather to make provision for the maintenance and support of his grandchildren simply by virtue of the existence of such a relationship. Such a moral obligation will rest upon the parents of a grandchild but not the grandparents.

However, such a moral obligation can be created in a particular case by reason, for example, of the care and affection given by a grandchild to his or her grandparent.

Since the recent amendment of s.91 of the Administration and Probate Act 1958 by s.55 of the Wills Act 1997, the Court has the power to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. If therefore a grandchild can satisfy the criteria spelt out in s.91 he or she may be entitled to such an order, not because he is a grandchild per se, but because he or she satisfies the new criteria.

In the present case there is no evidence before me which enables me to say that it is arguable that any of the grandchildren satisfy the criteria.

As in the case of the first plaintiff there is simply no evidence before me as to the present financial situation of the grandchildren.

I should add that during the course of the plaintiffs' counsel's submission I drew his attention to the absence of adequate material concerning the financial situation of the plaintiffs to enable him to make an application to adjourn the further hearing of the matter until such material was available.

Counsel informed me that he had discussed that matter with the first plaintiff before the hearing of the application commenced, and had been specifically instructed by him to pursue the application.

It follows therefore that I am not satisfied that any of the plaintiffs has an arguable case for relief and their application is refused accordingly.

I order that the plaintiffs pay the defendants' costs of the application including reserved costs.

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