Stewart v Antoniolli; Estate of Gladys Hodgson

Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Golosky v Golosky NSWCA (unreported, 5 October 1993) Bladwell v Davis [2004] NSWCA 170 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1

John Francis Stewart PARTIES : v Narelle Joy Antoniolli as executrix of the estate of the late Gladys Mary Burnham Hodgson

COUNSEL : Plaintiff: J Anderson Defendant: J Turnbull

SOLICITORS : Plaintiff: Jackson Smith Solicitors Defendant: Hosie & Partners, Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION FPA LIST

1214/05 John Francis Stewart v Narelle Joy Antoniolli as executrix of the estate of the late Gladys Mary Burnham Hodgson

1 HIS HONOUR: This is an application for an order pursuant to s 7 of the Family Provision Act 1982 (NSW) that provision be made for the maintenance of the plaintiff out of the estate, or notional estate, of the late Gladys Mary Burnham Hodgson. In argument, the plaintiff also applied for provision to be made for his advancement in life.

2 Mrs Hodgson died on 18 August 2004. Her estate was valued for probate purposes at $492,163, but was worth about $555,000 at the time of hearing. The principal asset is the deceased's former home at 2 Swamp Street, Wardell, now known more salubriously as 35 Richmond Street, Wardell. It is now valued at $425,000.

3 The plaintiff, Mr Stewart, is Mrs Hodgson's nephew. He is her brother's son. Mrs Hodgson's brother had been left with the care of four children. In about 1962, she and her husband took care of the plaintiff and his older sister. Mr Stewart was about three at the time. After about twelve months Mr Stewart's sister went back to live with her father, but Mr Stewart was raised by Mr and Mrs Hodgson as their son. He lived with them until he was 21 when he moved to Sydney to make his own way of life. It is common ground that he is eligible to apply for provision under the Act, pursuant to paragraph (d) of the definition of "eligible person" in s 6. It is also common ground that there are factors which warrant his making this application: see subs 9(1).

4 Mrs Hodgson's husband predeceased her. She had no children. She made a number of wills. The last will, and the codicil to it, were made on 19 February 2004. She left her land at 2 Swamp Street, Wardell, to the defendant, Mrs Antoniolli and appointed her as executrix. She left a legacy of moneys, in a fixed deposit to the Ballina District Hospital. This totalled $36,425 at her death. She left her residuary estate to her niece, Mrs Joanne Bayliss.

5 Mrs Antoniolli was a nurse who worked as a rehabilitation worker with the Royal Blind Society at Ballina up to 2003. By about 1987 Mrs Hodgson had become substantially blind. She became a client of the Royal Blind Society, and of Mrs Antoniolli, in 1993. The two became friends. Mrs Hodgson subdivided her land. In April 2003, she transferred the lot, now known as 33 Richmond Street, to Mr and Mrs Antoniolli for nominal consideration on the basis that they would build a house on the lot, and apparently on the basis that Mrs Antoniolli would care for Mrs Hodgson for the rest of her life. Mrs Antoniolli did so. There were discrepant valuations in evidence of the value of the land transferred in April 2003 by Mrs Hodgson to Mr and Mrs Antoniolli. The valuations were between $70,000 and $275,000.

6 Mrs Bayliss was Mrs Hodgson's niece, being the daughter of another brother. She lives at Cundletown near Taree and was quite close to her aunt.

7 I turn to the plaintiff's circumstances. Mr Stewart had about four years of secondary education at high school in Ballina up to 1975. Apparently because of health problems when he was very young, he only completed four years of primary school. When he was 15, he and his aunt and uncle moved to Caboolture in Queensland so that he could find some work. He did labouring jobs. For short periods he rented a caravan but moved back in with his aunt and uncle at Mrs Hodgson's request. In 1978 Mr and Mrs Hodgson sold their house at Caboolture and moved back to the Wardell property. The Wardell property, originally of two acres, had been bought by them in 1968.

8 Mr Stewart left the Wardell property in 1980 when he was 21. He found employment in Sydney, initially as a sawmiller. For the next 19 years he visited his aunt and uncle (or after 1995 his aunt, his uncle having died) at the Wardell property every few months at irregular intervals: about two, three or four times a year. It is an eleven-hour drive from Sydney to the Wardell property. During these visits Mr Stewart stayed in his old bedroom which still contained his personal belongings. He helped fix and renovate the house. He cleaned the roof, gutters and did painting as required. Every few weeks, when in Sydney, he kept in touch with his aunt by telephone.

9 Mr Stewart married in 1985, but was divorced in 1995. He has two children: one is now 19 and the other 16. He has obligations to pay child maintenance support. He has failed to meet those obligations. As I understand it, the reason for this is because of antagonistic feelings he holds towards his ex-wife. He presently owes $25,272 to the Australian Child Support Agency.

10 For many years since 1994 Mr Stewart has obtained work as a security guard. He does not have secure employment or regular hours. He is employed as a contractor and depends on work as it becomes available. At present he usually obtains a continuing flow of work but this is not guaranteed. He currently receives gross weekly payments of $300-$700, depending on the amount of work offered. This just meets his expenses, although he has certain annual expenses arising from his position as a contractor, totalling about $4,100, which he says are not met by his current level of weekly earnings.

11 In 1988, Mr Stewart bought a mobile home for $33,000. He still lives there. He estimates its current value at $25,000. He owns two cars which together have an estimated value of $7,000. He has superannuation of about $1,250 and very little by way of other assets. In July 2005 he estimated his assets as having a total value of $36,250. These figures were not challenged.

12 Mr Stewart's principal liabilities are the sum of $25,272, already referred to, owed to the Australian Child Support Agency, and $36,346 plus an estimated further sum of $4,000 owed to the Commissioner of Taxation. These tax debts have arisen because Mr Stewart worked as a contractor. He failed to lodge income tax returns from 1994 to 2005 until prompted to do so by having brought these proceedings. That his income tax liability and interest charge for ten years should be as little as $36,346 attests to the low level of his declared income. I hasten to add that there is no evidence that his actual income was more than his declared income. His declared taxable income for the financial years ended 30 June 1995 to 30 June 2005 is as follows: 1994 to 1995 $27,724 1995 to 1996 $12,286 1996 to 1997 $24,836 1997 to 1998 $24,018 1998 to 1999 $29,341 1999 to 2000 $38,436 2000 to 2001 Nil 2001 to 2002 $18,082 2002 to 2003 $29,871 2003 to 2004 $13,752 2004 to 2005 $42,664

13 It was put to Mr Stewart in cross-examination that he had chosen to squander his income on himself rather than putting by savings. He agreed that he had spent his income on himself. In my view it is highly probable his income was needed to sustain himself. There is no evidence that he led an extravagant lifestyle. His income was insufficient to have allowed him to save any significant sum through the exercise of frugality. I accept that he lives on a week-by-week basis and is unable to make any substantial savings.

14 Mr Stewart caused a company to be incorporated for the purpose of carrying on business as a contractor. It appears that he never used it. In my view Mr Stewart does not have the education to understand what is needed to operate a business as a contractor. For example, his expenses show that he has no insurance. He is vulnerable to the risks which attend contractors to which employees are not exposed. For example, if he were injured in his employment he may well be denied entitlement to receive workers' compensation. He has no security of employment. His income depends on what work is offered.

15 I should record that although Mr Stewart was shown to have exaggerated in his affidavit as to the frequency of his visits to the Wardell property, his oral evidence was given with refreshing frankness. He readily made admissions against interest. I accept his oral evidence without reservation and consider that the evidence in his affidavits to be generally reliable, except in relation to the matter of the regularity of his visits to Wardell after 1999, on which he was challenged and which he readily corrected.

16 Mr Stewart's liabilities currently total $86,270. He has a further liability to the Commissioner of Taxation of about $4,000. He estimates his liability to make future maintenance payments to his son to be $8,760, assuming his son remains in full-time education until he is 18.

Plaintiff's Relationship with Deceased in her Latter Years

17 I turn to the plaintiff's relationship with the deceased in the latter years of her life. Mrs Hodgson was a strong-minded, independent woman. Understandably she expected to receive regular visits from Mr Stewart. In the last five years of her life she was upset that he did not visit more often. After 1999 Mr Stewart only visited rarely. He estimated his visits occurred about once or twice a year, although there was a period of 12 to 18 months when he did not visit her at all. From time to time Mrs Hodgson told him over the telephone that he "should not go up there" and that "Narelle (being Mrs Antoniolli) said that no-one was allowed to come". This did not deter him from making visits when he did, and I do not think that such statements were a substantial reason for his visiting Mrs Hodgson less frequently after 1999. He readily acknowledged that Mrs Hodgson was pleased to see him when he did visit. Part of his reasons for not visiting as frequently as Mrs Hodgson would have wished, was that he was a single man enjoying some relationships. The primary reason, however, was a combination of the distance to be travelled and his need to take work when it was offered. For example, he did not visit his aunt at Christmas and Easter, but that was because it was a busy time of the year for a security guard. He was often required to work at short notice.

18 He remained in contact with Mrs Hodgson by telephone although I infer that that contact was much less frequent than it had been in earlier years. He spoke to her each birthday and at Christmas time, and gave her his mobile phone number.

19 In 2004, during the course of a five-day trip to the Ballina area with a friend, he visited Mrs Hodgson twice for several hours on each occasion, although he did not stay with her.

20 Mrs Hodgson had wanted Mr Stewart to leave Sydney and move to Wardell to look after her at least after her late husband's death. Before Mr Stewart's divorce, there was discussion with Mrs Hodgson to the effect that Mrs Hodgson would build a house on her land so that Mr and Mrs Stewart would come and look after her. In an audio tape made in 2003, Mrs Hodgson said: "When my husband died eight years ago I made a will up and left everything to John. Well, in the meantime of that his wife left and I was to build them a house on my property and they were to come and look after me, but that stopped that".

21 Mr Stewart agreed that Mrs Hodgson had wanted him to build a house on the property she owned and to look after her. He did not accept that proposal. His principal reason for not accepting it was that he believed there would be no work for him in the Ballina area. I accept he held that belief. He made some inquiries about employment on one of his visits. It was not shown that his belief was unreasonable.

22 Nonetheless, and reasonably, Mrs Hodgson was upset that Mr Stewart did not visit her more often. On a number of occasions Mr Stewart arranged to see her but had to cancel his visits. This was very disappointing for her. On two occasions in the late 1990s, she threatened to change her will if Mr Stewart did not move from Sydney and live with her in Wardell. In August 2003 she carried out that threat. She made a will, later revoked, in which she gave her Wardell property to Mrs Antoniolli, a legacy to the Royal Blind Society, and the residue of her estate to Mrs Bayliss. Mr Stewart had been the principal beneficiary under her previous will. The bequests made in her 2003 will were the same as she made in the following February, except in February 2004 she made a codicil leaving the legacy to the Ballina District Hospital, rather than to the Royal Blind Society.

23 In the audio tape of September 2003, made about three weeks after her will, Mrs Hodgson recorded that Mr Stewart wanted her to go to Sydney to live with him. She recorded that as Mr Stewart worked at night and slept most of the day, and as she was blind, she had rejected that idea. There was other evidence that she visited Mr Stewart in Sydney and did not intend to go back there to live. Given that she was substantially blind and that her friends all lived at Wardell, that is hardly surprising.

24 Mrs Hodgson also recorded that: "Last year [that is 2002] I decided I would sell half my property because it was all too much for me to keep, and I haven't see him for two and a half years. I have to get someone to do different things for me, like cleaning gutters and that. So I have managed to have a neighbour about and I have only got half an acre left. So far as I am concerned I don't see John at all. He doesn't come and help me or nothing now. So that's that.

But however, when his wife left, he owed 18 and a half on his caravan house, his caravan park or something, so I paid that off for him, 8 and a half. And he used a bit of the money and then borrowed a couple more from me. Then he had some car he wanted ... paying off rather, so I did that too. I said to him, 'Well you borrowed that money, that $5,000. Now when you pay me back I will add ten to it and I will put it on fixed deposit and you will have a little bit of something to take or you will have it in the bank.' But I haven't seen anything of it and he doesn't want to talk about it. So anyway, I haven't seen him for two and a half years and I never hear from him now and I am just waiting to see what happens."

25 Mrs Hodgson did give $8,000 to Mr Stewart towards paying off debts he owed on his mobile home and a motor vehicle. The evidence as to whether there was a loan of $5,000 in addition to that gift, was not very clear. I am not satisfied that there was such a loan. I also accept Mr Stewart's evidence that Mrs Hodgson was mistaken in saying that she had not seen Mr Stewart for two and a half years. He said that in the two and a half year period prior to September 2003, he visited Mrs Hodgson at Wardell on several occasions but could not recall the last such occasion.

26 It is clear that Mrs Hodgson thought that Mr Stewart did not visit her or look after her as she considered he should have done, having regard to the start in life which she and her husband had provided to him by bringing him up as their son from about age three to age twenty-one. It is clear that this is the reason she made no provision for Mr Stewart in her will.

27 This is a rational reason for making no provision for Mr Stewart, but the question still remains whether provision should have been made for his maintenance or advancement in life. To answer that question it is also necessary to consider the circumstances, particularly the financial circumstances, of Mrs Antoniolli and Mrs Bayliss.

Defendant's Financial Circumstances and Relations with the Deceased

28 I consider first the defendant's financial circumstances and her relations with the deceased. Mrs Antoniolli is financially well off. She and her husband received the property now known as 33 Richmond Street, Wardell, from Mrs Hodgson as a gift in April 2003. The land was then vacant. Mrs Hodgson expected that Mrs Antoniolli and her husband would build a house on that property and look after her until she died. Mrs Antoniolli did this. Excavation and filling had to be carried out on the land to make it suitable for building. This partly accounts for the discrepancies between the two valuations I referred to earlier. The work of excavation and filling cost $48,000. Mr and Mrs Antoniolli built a house on the land at a cost of about $300,000. It is common ground that the property is now worth $570,000. It is unencumbered. The cost of building and the current agreed value of the property show that the value of the land when it was transferred in April 2003 was substantially more than $70,000. In my view Mrs Hodgson's gift of the land should be valued at about $200,000.

29 As well as owning their house, Mr and Mrs Antoniolli owned a boat valued at over $20,000, a motor vehicle, and have bank accounts which, as at July 2005, were in credit in the sum of $72,000. Mr Antoniolli is in regular employment with earnings of more than $52,000 gross per year. Mrs Antoniolli was asked to resign her employment with the Royal Blind Society because of her acceptance of Mrs Hodgson's gift of the land. She has established a clothing alterations business. While it has been going less than a year it appears to have started successfully and is providing her with another $200 per week, after expenses.

30 Mrs Antoniolli and Mrs Hodgson became close friends during the 1990s, however, she did not provide day to day care to Mrs Hodgson before she moved onto the Wardell property in August 2003. Mrs Hodgson died a year later. It is not entirely clear how much day-to-day care Mrs Antoniolli had to provide in that year, as Mrs Hodgson was fiercely independent and railed against being provided with assistance. Suffice it to say that there will be no financial hardship to Mrs Antoniolli if provision were made for Mr Stewart. Nor would the making of such provision deprive Mrs Antoniolli of any legitimate expectation of an inheritance as a reward for past services to the deceased. It would, however, displace Mrs Hodgson's testamentary wish to mark her evident attachment to her friend by a bequest of her house. That is not to be done lightly.

Mrs Bayliss' Financial Circumstances and Relations with the Deceased

31 I consider next Mrs Bayliss' financial circumstances and relations with the deceased. Mrs Bayliss does not enjoy as comfortable financial circumstances as Mrs Antoniolli. She has savings of $5,000 and superannuation of $2000. She is 47 and has five children. She is married. She is the joint owner of a house at Cundletown valued at $250,000. Last year she did some part time work and earned $6,000. There was no evidence of her husband's earnings. He is employed as a sales assistant. Mrs Bayliss has not worked since September 2005, as she has suffered from sciatica in her back and right leg, and pain in her shoulder and neck, that has made her bedridden for most of this time. She may need surgery on her spine. Her financial position is modest.

32 She kept in close touch with her aunt, who offered the subdivided block of land to her before offering it to Mrs Antoniolli. Before she had been able to arrange a weekend to visit her aunt to talk about this proposal, her aunt offered the block to Mrs Antoniolli. Having regard to Mrs Bayliss' financial circumstances and her medical condition I am of the view that the burden of any provision in favour of Mr Stewart, and the burden of the costs of these proceedings, should not be borne by the share of the estate which she will inherent.

33 Section 7 and subs 9 (2) of the Family Provision Act prescribe a two-stage inquiry. The first question is whether any provision made for the applicant is inadequate for his or her proper maintenance, education and advancement in life. In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ said (at 209-210):

"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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."

34 Subsection 9(3) lists non-exhaustively matters that the Court may take into account in determining what provision, if any ought to be made in favour of an eligible person. It provides: 9 Provisions affecting Court's powers under secs 7 and 8 … (3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances.

35 I have referred already to painting, repairs and odd jobs carried out by Mr Stewart during his visits to the Wardell property. These can be considered as a contribution made by him to Mrs Hodgson's welfare although they are not of any exceptional kind. In 1994 Mr Stewart stayed at the Wardell property for three days to assist his aunt in dealings with the Guardianship Board when there was a proposal that Mr Hodgson may have to leave the house. Mrs Hodgson was opposed to that course and in the result he was able to stay. That is also a relevant consideration under subsection 9(3).

36 As I have said the estate is presently valued at about $555,000, the principal asset being the deceased's property valued at about $425,000. The defendant's costs, which will be paid from the estate on an indemnity basis, are estimated to be about the $36,500. The plaintiff's costs, which will be paid from the estate on a party/party basis if he is successful, are estimated to be about $39,000. Thus the net distributable estate is about $480,000. Mrs Bayliss' residuary bequest is worth about $94,000.

37 Mrs Hodgson exercised what many regard as one of the few powers or privileges available to the frail and the elderly: the power to leave her estate as she should choose. In Golosky v Golosky NSWCA (unreported, 5 October 1993) Kirby P said that: "(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor (1980) 144 CLR 131, 458; Hunter v Hunter and Ors (1987) 8 NSWLR 173, 576."

38 Nonetheless the Act does affect freedom of testamentary disposition so far as is necessary to ensure the proper provision for those who are eligible to apply, having regard to all the relevant circumstances. In this case Mr Stewart did not misbehave towards his aunt. He did not cut himself off from her entirely. His reasons for not visiting as often as his aunt wished and for not moving to live with her were not unreasonable from the perspective of a single man in his forties with a living to earn and without an assured source of income. From his aunt's perspective, the infrequency of his visits and his failing to move to Wardell to care for her, would be understandably upsetting.

39 Mr Stewart is an able-bodied man in employment. However, the time has long since passed where the courts have regarded a testator as having no moral duty to provide for able-bodied sons. Although Mr Stewart was not the deceased's son, he was brought up as such. She had no children of her own. The court has to make a value judgment, having regard to all of the circumstances, as to whether some provision was required for Mr Stewart's proper maintenance and advancement in life. That assessment is to be made at the date the orders are to be made.

40 He was a natural object of her testamentary bounty and was regarded by her as such in her earlier will. He was not guilty of conduct, which would wholly disentitle him from the deceased's consideration. He has substantial financial needs. There are no countervailing financial needs of others who have a legitimate claim on the deceased's testamentary bounty, save for Mrs Bayliss, with whose bequest Mr Stewart does not seek to interfere. In these circumstances I considered that some provision ought to have been made for Mr Stewart's maintenance and advancement in life.

41 His claim is for provision of the sum of $350,000, which would enable him to buy a modest home unit and to discharge his debts. Although there is no rule that proper provision under the Act does not extend to providing a house for an able-bodied adult (Bladwell v Davis [2004] NSWCA 170; Lloyd-Williams v Mayfield (2005) 63 NSWLR 1) there is also no rule or principle that it does. Mr Stewart has secure accommodation in a mobile home that has been adequate for his needs, so far as appears, since 1988.

(a) will discharge his debts; (b) provides a fund from which he can meet his future obligations to provide maintenance to his son, with appropriate provision to ensure that the fund is applied to that purpose; and (c) provides a sum against the vicissitudes of life, recognising the insecurity of his employment and future prospects.

43 That should be a substantial sum. It should be sufficient to provide part payment of the cost of the purchase of other accommodation, if Mr Stewart desired to secure different accommodation and if he demonstrated to a prospective lender that he had regular, gainful employment, which enabled him to meet regular mortgage payments. Such a provision may provide the best incentive for him to secure regular work.

44 In my view an additional sum of $100,000 to meet the vicissitudes of life and available to be applied towards the purchase of new accommodation, is the amount which ought to be provided under this third head. The amount needed to clear Mr Stewart's debts is $90,270. $8760 is needed to provide a fund to be used to pay future child support. With the additional provision of $100,000, the figures come to a total of $199,030. I will round that figure up to $200,000, which is the total amount of provision, which, in my view, ought to be made for his maintenance and advancement in life. No separate provision is sought for his education.

45 I direct counsel for the parties to bring in short minutes of order consistent with these reasons. The orders should include an appropriate condition for the plaintiff to apply the provision towards the discharge of his debts, which are identified in paragraph 2 of his affidavit of 28 April 2006 and to require that an amount of $8760 be invested and used only for the purpose of paying child support until Mr Stewart's son turns 18 and he has discharged his obligations to pay child support/maintenance.

46 The plaintiff will be entitled to his costs from the estate on a party/party basis and the defendant to an order that her costs be paid from the estate on an indemnity basis. There should also be an order pursuant to s 13 of the Act that the burden of the provision and of the orders for costs should be borne proportionally by the defendant and the Ballina District Hospital.

47 Although I will hear argument from counsel on the matter if necessary, my preliminary view is that interest should not run on the provision for a period of six months to allow time for the deceased's property to be sold. My preliminary view, is that thereafter the burden of any interest should be borne from the defendant's share of the estate, because as executrix she has the power and responsibility for realising the estate.

48 My preliminary view also is that a charging order on the property at 35 Richmond Street, Wardell would be appropriate. If necessary I will hear argument on that when the short minutes of order are brought in.

49 The only order I make at this time is to direct counsel for the parties to bring in short minutes of order consistent with these reasons.

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