SOMOGY v. KUNE [1999] NSWSC 1168

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2322/99 ESTATE OF THE LATE JOHN SAUNDERS & THE FAMILY PROVISION ACT 1982

JUDGMENT 1 HIS HONOUR: John Saunders late of Point Piper, Company Director, who was born in Hungary on 23 November 1922, and emigrated to Australia about 1948, died on 6 December 1997. The plaintiff, who is his sister and was born on 23 May 1921, has brought these proceedings claiming provision out of his estate under s.7 of the Family Provision Act 1982. The defendants are his executors: they are Professor Gabriel Andrew Kune, Emeritus Professor of Surgery, and Mr John Landerer, solicitor. 2 The testator had a career of great success and distinction in Australia, became a magnate in the development of shopping centres associated with Westfield, and received the Order of Australia. He assembled a large fortune. The assets passing under his will were valued for probate purposes at $19,667,792.76 and the net value of the distributable estate was $19,055,694.30. The testator's will and only codicil were both made on 19 November 1997. The dispositions were elaborate and included legacies and specific gifts to a number of persons. By cl.10 the residue was given on trust to pay obligations, to pay several legacies and to hold one third of the remainder on trusts, stated at length, which benefit each of his three children in one-third shares. The administration of the estate has proceeded and legacies have been paid, insofar as they are yet payable; but one legacy of $1,250,000 to Hope Town Wyong Limited, which has charitable purposes, is payable by equal instalments over 5 years and not all of it has been paid. The undistributed assets now in the hands of the executors net of liabilities are worth $7,990,692.09. 3 The testator did not make any provision for the plaintiff in his will, but made provision for her in other ways during his lifetime. With one exception, no other person who is or may be an eligible person has made a claim or is likely to. The exception is Mrs Klara Saunders, the testator's former wife. In his will he gave her a legacy of $100 and stated his reasons for making no other provision. On 23 July 1999 she acknowledged receiving notice of distribution and on the same day she issued a summons in other proceedings claiming provision under Family Provision Act. Her application was made outside the prescribed period in s.16 and the summons has not been served on the executors, although the time for service under Pt.7, r.7(1A) of the Supreme Court Rules has passed. The summons was not accompanied by any affidavit and no evidence in support of her claim has been filed. Having regard to s.20 her claim cannot be disregarded but my view is that it does not raise any competing considerations with the plaintiff's claim. 4 To show that she is an eligible person the plaintiff must show that she falls within para.(d) of the definition of eligible person in subs.6(1):- "A person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person; and (ii) … was, at that particular time or at any other time, a member of the household to which the deceased person was a member;"

and the plaintiff must also pass the test in subs.9(1) which requires "… the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application …"

I am satisfied that the plaintiff and the testator were members in common of the same household at times early in their lives; this was conceded, and the facts appear from my later findings. 5 In childhood the plaintiff and the testator lived in their parents' household in Satoraljaujhej in Eastern Hungary. There were four children in the family. Their father died in 1934. About 1936 they began to work in the family's leather wholesale business. In 1942 the testator was arrested and was detained in a prison camp for about 13 months. The plaintiff interceded with officials about his treatment and visited him every second week while he was in a prison camp and smuggled to him letters, newspapers and food; this involved hardship and personal risk. During the convulsions and invasions of 1944 Hungarian Jews including their family were forced to live in ghettos. The plaintiff, at personal risk, disguised herself as a nurse so as to meet a train on which the testator with other prisoners was being transported; on this occasion she was unable to give him any effectual assistance. The plaintiff and the remaining family members were later deported and she was held and mistreated in a concentration camp. Their mother and younger brother died after deportation but three members of the family including their sister survived and re-established the family household, with their childhood nanny, in a three-bedroom apartment. They worked in the business and shared the expenses, and the plaintiff managed the household. Their sister married and left the household. In 1947 the plaintiff married and her husband joined with the testator and established a timber mill business. 6 In 1948 the family decided to leave Hungary and the testator in fact did leave, with significant assets, but the plaintiff, her husband and her daughter were prevented from leaving by the then regime, and were subjected to oppression, and deprived of their home and business and their significant resources. After living in hardship for some years the plaintiff, her husband and child left Hungary in December 1956 and lived in Israel for several years. The testator visited them in Israel. In 1959 the plaintiff suffered from a pituitary tumour which she attributes to being clubbed on the head while in a concentration camp. She underwent a resection operation which overcame the tumour, and she had a lengthy rehabilitation. 7 In August 1960 the plaintiff, her husband and daughter emigrated to Australia; the testator sent them money for their air fares. On arrival to Australia they received assistance from the testator and their sister. After several years when they earned income by factory work and other humble work the plaintiff and her husband opened a shoe repair and travel goods business at Westfield Shopping Centre at Hornsby with the assistance of the testator, who helped them buy machinery, paid for the fit-out of the shop and arranged a discount on the rent. There were close family relationships, the testator and the plaintiff's husband had a relationship of friendship and respect, and the family shared social life and religious festivals. The testator showed generosity towards the family with gifts, holidays and hospitality. He assisted the plaintiff's daughter Jody Somogy when she spent almost two years overseas on a working holiday, and treated her with generosity when she returned in 1972. He paid for her engagement party, and paid for her husband's family to travel from Honolulu for her wedding. He also gave generous wedding presents. When Jody Somogy's marriage broke up after a short time the testator again assisted her. 8 The plaintiff and her husband had various businesses, including a tobacco shop in a Westfield Shopping Centre which the testator assisted them to set up. The testator also assisted the plaintiff's husband during a long period of illness and treatment from 1974 to 1981 when he died. The testator paid for the funeral. He also assisted Jody Somogy to travel to Melbourne to visit her father while he had medical care there. He assisted Jody Somogy by giving her money for a deposit and furnishing a home unit which she bought in 1979. He further assisted Jody Somogy when she needed hospital treatment, on one occasion paying her hospital account for $6,000. 9 The plaintiff suffered further from the pituitary tumour in 1979. She was again given assistance by the testator, who sought to make arrangements for her to have treatment in United Kingdom; these arrangements were not followed through. After her husband's death, the plaintiff bought her present home unit in the same building as the unit owned by her daughter. On this occasion the testator gave the plaintiff $10,000 towards the purchase and said "Lilly I want you to have a home that is fully paid for so that you have security." He also paid for some new furniture and assisted her to pay medical bills for a gall bladder operation. He further assisted the plaintiff with many other acts of generosity. 10 In 1989 the testator created a trust by giving 120,000 Westfield Trust Units to Jody Somogy on terms recorded in a letter from Jody Somogy to the testator dated 5 May 1989. The benefits of this trust will be further examined but they included that the net dividends, meaning the gross dividends less any tax payable by Jody Somogy in relation to the dividends, were to be used only for the plaintiff's benefits. 11 Throughout the rest of his life the plaintiff maintained a good relationship with the testator appropriate for a sister and a brother, gave him hospitality, prepared food which he liked and shared many experiences. About 1984 the testator gave the plaintiff a Cab Charge card to use for her transport; the testator saw to payment of the charges. This card continued to be available for the rest of the testator's life and until May 1999. In 1996 he paid for a car bought by Jody Somogy. In 1997 he made a gift for the benefit of the plaintiff and Jody Somogy of $200,000. 12 Throughout the plaintiff's life in Israel and in Australia the testator directed a flow of gifts and benefits to her and her daughter which enhanced many aspects of her life, including her economic life. His gifts did not pay for her daily bread and butter, but they did meet many requirements which on a wider scale should be understood to be needs, on a scale which was appropriate for the close family of a magnate. Although these gifts were things the plaintiff could have survived without, they greatly enhanced her life circumstances and included two relatively large settlements which show the testator undertaking responsibility for the well-being of the plaintiff and her family by providing them with income-earning capital. The testator gave benefits to the plaintiff's daughter of kinds which a parent would wish to provide and if at all able to do so would feel a social expectation and a need to provide. 13 These gifts were given after the plaintiff had benefited the testator in Hungary in their early life in circumstances of hardship and persecution, and the plaintiff's opportunities in life had been injured by circumstances which had not borne as heavily or as effectually on him. His generous behaviour towards surviving relatives should be seen in its context in which he experienced great good fortune, no doubt merited, after early and extreme adversity which the plaintiff also experienced, and other family members did not survive. 14 At about the time of making his will the testator told Mr Landerer that he believed he had made ample provision for the plaintiff and her daughter during his life-time. Mr Landerer's evidence is that the testator said "They are constantly trying to milk me especially Jody Somogy. My conscience is clear. I have given money to both Lilly and Jody Somogy during my life time and I do not believe that I should make any further provision for them after my death." Jody Somogy has denied the force of this observation against her, and her evidence in that respect was not challenged. The conversation in which Mr Landerer asked whether the testator would provide for the plaintiff in his will and the testator explained reasons why he did not illustrates that in his perception provision for her was appropriate and its absence from the will was a subject for consideration and reasons. 15 In these circumstances I find that the plaintiff is a person who was, throughout the period from the time when she lived in Israel until the testator's death, partly dependent on him. 16 In my opinion there are within the meaning of subs.9(1), factors which warrant the making of this application, having regard to the circumstances to which I have referred, and the strength of the plaintiff's claim as appears generally in this judgment. There are factors which warrant the making of the application on a whole view of the relationship between the testator and the plaintiff, the benefits which have been provided, and the existence of a reasonable claim for further provision the adjudication of which is warranted. 17 The plaintiff's principal asset is her home unit which is unencumbered, and I find that its present value is $335,000, on the evidence of Mr Valuer Lenord. Her home unit is a two-bedroom home unit and is not large, 91 sq m, on the third floor of a building in Penkivil Street, Bondi, constructed in 1975 and serviced with a lift. It is a suitable dwelling for the plaintiff. Its advantages include that the plaintiff's daughter owns and lives in Unit No. 4 on the first floor. The plaintiff also owns the furniture and other contents of the unit; its insured value is $55,000 and as there is no other evidence dealing with the subject I find that to be its value. 18 The plaintiff has other resources which cannot be strictly said to be property she owns. 19 The gift of 120,000 Westfield Trust Units made by the testator and recorded in the letter of 5 May 1989 was a gift on terms which were stated shortly, but not so as to show clearly what interest was created. The letter says: "I hereby acknowledge as follows: 1. John Saunders has gifted to me 120,000 Westfield Trust units ('the units'). 2. These units are to be held by me in Trust for my mother Lily Somogy. 3. During Lily Somogy's life time, the units and any net dividends received on these units (being the gross dividends less any tax payable by me in relation to such dividends) will be used only for Lily Somogy's benefit at Lily Somogy's discretion. 4. After Lily Somogy's demise, the benefit of any remaining units and dividends that will flow on these units will become the property of Jody Somogy. 5. Jody Somogy will report to John Saunders or his Trustee every six months as to the balance of units remaining and the purpose for which net dividends (and unit sales if any) have been put." 20 Paragraphs 1 and 2 seem to show clearly enough that the Westfield Trust Units were given to Jody Somogy to be held on trust for the plaintiff. However para.4 shows that the plaintiff is only to have a life interest and Jody Somogy is to have the remainder interest. Under para.3 the dividends are to be used only for the plaintiff's benefit at the plaintiff's discretion. It would go without saying that the plaintiff was to decide what was to be done with the income if the property was held on trust for her for a life estate. However the dividends to be used for her benefit are the net dividends and Jody Somogy is to be paying the tax on the gross dividends. Paragraph (3) also extends to the units; they are to be used only for the plaintiff's benefit at the plaintiff's discretion. This would not of itself authorise or entitle the plaintiff to require any units to be sold or surrendered and enable her to take the proceeds in money. However the terms of paras 4 and 5 suggest that the number of units may fall, raising the possibility that they may be disposed of. 21 Submissions by defendants' counsel were based on the view that it is entirely within the plaintiff's power to require the whole of the 120,000 Westfield Units to be disposed of so that she can apply the proceeds for her own benefit. This is possibly a correct view, but it is not the only available view, as I do not see a clear indication of an intention that the plaintiff should have power to require disposition of units, take the proceeds and defeat Jody Somogy's remainder interest in them. Even if she did have the power to do that I do not think that the resources available to her should be measured on the basis that she can and ought to do that, as there are considerable personal, family and social inhibitions against the plaintiff's making a decision which would defeat her daughter's prospects of ever receiving some or all of the Westfield Trust Units. 22 In my view the net dividends, after deduction of any tax payable by Jody Somogy in relation to the dividends, should be treated as a resource available to the plaintiff, but the capital value of the units should not. 23 There are now more units than 120,000 donated by the testator in 1989 but the addition should not be equated with the original gift. There are now 134,595 Westfield Trust Units and adopting the value of $3.01 which is the closing ASX trade on 2 December 1999 their value is $405,130.95. 24 Another resource available to the plaintiff relates to the Somogy Family Trust of which Nicsom Nominees Pty Ltd is the trustee. This trust was created in 1972 by a nominal gift by a relative. The trustee is a company of which the plaintiff and Jody Somogy are the only shareholders and directors; the trustee and the discretionary powers in the trust are entirely under their control if they act together. They are the only presumptive beneficiaries who now exist. If they act together they can make discretionary decisions allocating the capital and income of the Somogy Family Trust to one or other of them. If they did not act together dealings would be deadlocked, although this has not happened. 25 The assets now held by the trustee are traceable largely but not wholly to the gift of $200,000 which the testator caused to be made from his own funds and to be deposited to the credit of Nicsom Nominess Pty Ltd on 26 June 1997. The testator described this payment in his cheque requisition as "gift to Mrs L. Somogy and Miss J. Somogy $200,000". At about that time the testator said to Jody Somogy "I am giving you $200,000 so you can go on holidays, clothes, enjoy yourselves. Jody I appreciate that you look after your mother but don't give up your life completely." The testator encouraged Jody Somogy to use about $15,000 to $20,000 part of the funds for a journey to Israel for purposes relating to family affairs. Jody Somogy decided that the gift should be placed to the account of Nicsom Nominees and the Somogy Family Trust on the advice of her accountant. The assets of the trust now are largely proceeds of this gift. Jody Somogy has also paid about $50,000 of a Workers Compensation payment into the trust. 26 The assets now held by Nicsom Nominees (some of them under the name Nixon Nominees Pty Ltd through a clerical error) are as follows:

Three month fixed term deposit of $50,000 held with NRMA $50,000.00 maturing 15 January, 2000. 8,000 Westfield Holding Shares (presently at $9.90) $ 79,200.00 10,300 West American Trust Units (presently at $1.49) $ 15,347.00 58 Westfield Trust Units value at $ 174.00 10,000 ANZ ordinary fully paid shares $112,300.00 NAB Bank Account $ 764.17 NAB Bank Account $ 6,313.49 TOTAL: $264,098.66 27 These assets are not at the plaintiff's disposition. Application of any of them to the plaintiff would depend on a discretionary decision to be reached by the plaintiff and her daughter. Although there has been no sign of any conflict between them, the probabilities are that any discretionary decision would recognise in some way the daughter's contribution of her Workers' Compensation funds, and the fact that insofar as the assets of the trust flow from the testator's gift, it was a gift to both. The plaintiff does not have a key to unlock and take all $264,098.66, but given the nature of her relationship with her daughter it can be expected that the plaintiff will receive the benefit of half the income, and that she could get access to some capital if there was a sufficiently strong reason to persuade both that it should be allocated to her. 28 The plaintiff also has a claim for personal injury damages. The evidence shows no material on which its value can be known except that the solicitor conducting that claim recently advised her to offer $30,000 plus costs to settle it. 29 The plaintiff's income is as follows:

Pension from German Government $5,400 Age Pension $9,090 Income from Nicsom Nominees - treating half its income as hers $6,030 Income from Westfield Trust Units, without deducting tax payable by Jody Somogy $28,641.82. 30 The distribution of income from the Westfield Trust Units varies with the performance of the trust. The latest distribution paid on 31 August 1999 was $14320.91, and I have treated this as indicating that income is now at the rate of $28641.82 per annum. 31 It is difficult to describe clearly or to value confidently the resources represented by the plaintiff's interest as a beneficiary of the trust of the Westfield Trust Unit and as a discretionary beneficiary of the Somogy Family Trust. Bearing in mind that Jody Somogy contributed $50,000 from her Workers' Compensation payment to the Somogy Family Trust I would value the plaintiff's interest in it as being in the order of $107,000. There are so many uncertainties about the plaintiff's access to the capital of the Westfield Trust Units trust that any appraisal the value of her interest can only be arbitrary but I would treat it as in the order of $200,000. 32 In view of the size of the assets the plaintiff's expectation of continuing to receive the Age Pension seems highly precarious. 33 The plaintiff has suffered from many ailments. She sees many doctors and takes many medications. Her general practitioner Dr Glazer has listed the following medical conditions:

The pituitary tumour Hypertension Hypolipidaemia Osteoarthritis Spinal Stenosis Depression Hypothyroidism Bladder incompetence. 34 After a further re-section of the pituitary tumour in February 1999 she has entered a period where her health is relatively stable. She has limited mobility. She is still to some degree depressed. She requires medication to control her blood pressure, pain and depression. She suffers from spinal and knee arthritis, still has some difficulty with vision apparently relating to the tumour and has recurrent intestinal problems. She requires physiotherapy to improve or maintain her mobility. There is a possibility that she may come to need surgery for her knees and spine. 35 The plaintiff has a life expectancy of 8 to 10 years, normal for her age. She is in need of much social support. She is unable to attend without assistance for journeys to obtain treatment or to conduct daily household management. She needs some assistance with acts of daily living. Until this year she received much assistance from her daughter Jody Somogy, and followed a daily routine which largely depended on that assistance. However Jody Somogy herself suffers from a number of disabilities, and in August 1999 underwent radical surgery for bowel cancer and is now receiving chemotherapy. She is not able to provide her mother with daily care as before; she is in need of daily care herself at present. 36 The plaintiff's situation with respect to her needs for care is very different from the position which appeared in November 1997 when the testator made his will. The statement he made to Mr Landerer shows that he contemplated that with the provision he had then made the plaintiff's life and Jody Somogy's life would proceed on an even course with Jody Somogy providing the plaintiff with necessary assistance. The position now is very different. In recent years Jody Somogy has in fact attended to all business concerns and most of the practical demands of life for the plaintiff. Much of this assistance is no longer available and the availability of any of it is contingent on Jody Somogy's achieving a degree of recovery. 37 The plaintiff has been receiving assistance from a paid carer who has attended for several hours each morning. Carers are now to charge $18 per hour, a low rate, for a person without special qualifications; this seems to imply $72 per day. However there is a need for longer attendance in the afternoons. 38 The plaintiff is extremely attached to continuing to live in her own flat and to maintaining her own household. She stated very firmly in evidence her distaste for nursing home care or for moving to aged persons' accommodation. Much as the plaintiff values independent living, she is no longer capable of it as she now requires much attendance and assistance to get through an ordinary day in her life. For some years she has made donations to the Sir Moses Montefiori Home, and accommodation could probably be found for her there; she has not made any application nor has her suitability been appraised. Hostel care may be suitable for her or her need for daily care may be such that she requires nursing home care. The Montefiori Home is a charitable institution, but on a realistic basis there is an expectation that $35,000 per annum would be paid if she were to enter hostel care or nursing home care. 39 On the basis of their present arrangements, the resources available to the plaintiff and Jody Somogy would be adequate to maintain them at a modest standard if they were able to care for themselves. However the resources are inadequate in the present circumstances where they both need daily care and attendance. The situation in which the plaintiff lives in her own flat is vulnerable to changes in the family situation, especially in the circumstances of Jody Somogy. Without Jody Somogy the plaintiff could not live in her own flat. As things now are she cannot afford carers on the scale required; it appears to me that she cannot afford carers at all. The plaintiff depends on Jody Somogy for all management of the business and paperwork aspects of life and its practical arrangements, and Jody Somogy's circumstances have worsened greatly this year. Full time carers simply cannot be provided within the resources available. 40 My view is that to find full time carers would require more resources than it would be reasonable to expend, bearing in mind the availability of aged persons' accommodation. Notwithstanding the plaintiff's great distaste for aged persons' accommodation, her circumstances are moving her towards a situation where she will have to accept either hostel care or nursing home care. She is likely to encounter this situation soon, within two or three years at the most, and the longer it is deferred, the more difficult to meet will be the demand on resources made by attempts to provide carers. The plaintiff is embarking on a phase of her life when the endeavour to maintain her way of life and her own flat will be continued, at unsustainable expense, until the unsustainability bears itself in on her; then at some time in the next two or three years the probabilities are that she will move to aged persons' accommodation. 41 Attempts to establish in a clear way the plaintiff's expenditure and needs were complicated to the point of incoherence by the intermingling of the plaintiff's affairs with those of her daughter. There is really no clear line between the plaintiff's living expenses and those of her daughter; there is no clear line dividing their resources, or their income from several sources. The plaintiff offered the evidence of Mr Philip Cox a chartered accountant, but his analysis does not establish in a clear way the expenditure incurred by the plaintiff or take it to an annual rate. Information available to Mr Cox would not have enabled him to do this. My finding is that the plaintiff requires to spend in the order of $30,000 to $35,000 per year, apart from expenditure on carers, to maintain her present standard; this is a rather large amount given her resources, and is affected by the many medical and related attendances which she obtains. 42 Defendants' counsel illustrated that many people in the community, including widows with strong claims for provision against their late husband's estates, have the same scale of resources and provision as the plaintiff has. However as appears from this judgment a number of factors take the plaintiff's claim out of the ordinary. Striking among them are the large scale of the resources available, the established pattern of family circumstances in which the testator made resources available with generosity , the experiences of their early lives and the plaintiff's contribution to the testator's welfare in times of great adversity and persecution, and the alteration in the plaintiff's situation since the testator died, strikingly with respect to the extent of her need for care and the difficulties about her daughter's being available to give it. I have to contemplate the possibility that the plaintiff's future may include some years without the assistance of social support from Jody Somogy. 43 Evidence of the parties' solicitors establishes that the total costs and disbursements which are expected to be incurred by the plaintiff to the end of the hearing is $106 503.64, and on behalf of the defendants $90,300.00. I am unable to see why such large sums have been involved. 44 In my view the plaintiff's claim is a highly meritorious one, and the testator's behaviour in his lifetime recognised her claim; so in a manner did the explanation which he gave to his executor for not making further provision in his will. In Hungary the plaintiff made contributions to the testator's welfare, in terms of attending to his well being while he was in a prison camp, managing his household and working with him in the family's business, in circumstances of great adversity and savage persecution, and this takes their situation far out of the ordinary experiences of Australian life and explains his life-long concern and attention to her welfare. Her contributions to his welfare in their early life have great weight in my consideration. Her behaviour in their years in Hungary is a strong positive element in considering her character and conduct. The very large resources available to the testator also furnish context for the determination whether provision ought to be made and what provision could be made; where a testator had large resources to dispose of, sufficient to enable him to make charitable gifts measured in millions of dollars, a large approach to the provision to be ordered is also appropriate. 45 Counsel for both parties submitted that if provision was to be ordered it it should take the form of an annuity rather than a large capital payment. I accept these submissions; there is no occasion for allocating a large capital sum to the plaintiff. It is not necessary to attempt to meet what could potentially be very large expenditures for carers in her own home. The provision which ought to be made would go a considerable distance towards meeting nursing home or hostel accommodation expenditure, while leaving her also to rely on her other resources, which would also go some way to that end, and would enable her to live in comfort, meet her income tax liabilities and provide herself with some funds for discretionary expenditures. 46 In the plaintiff's case needs were put forward in terms of buying appliances and re-equipping the kitchen in Jody Somogy's unit and also providing other furnishing such as carpets for that unit. These claims were related to assistance rendered by Jody Somogy to the plaintiff and her use of Jody Somogy's unit at least for the part of each day. The plaintiff's counsel asked that a small capital amount in addition to an annuity be provided, but I do not uphold that claim. 47 In my judgment the provision which ought to be made for the plaintiff's maintenance is an annuity at the rate of $35,000 per annum. The annuity should run from the first day of hearing. 48 Order:

(1) Order that by way of provision for the plaintiff there be paid to her out of the estate of the testator an annuity at the rate of $35,000 per year commencing on 7 December 1999.

(2) Reserve further consideration of the incidence of the burden of the provision on the interests in the estate of the testator.

(3) Order that the plaintiff's costs of the proceedings be paid by the defendants out of the estate of the testator.

(4) Order that the defendants' costs of the proceedings on the trustee basis be paid or retained by them out of the estate of the testator.

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