Taylor v Lewis

Supreme Court of NSW|2004-02-26

CITATION : Taylor v Lewis [2004] NSWSC 375 HEARING DATE(S) : 19, 20, 26 February 2004 JUDGMENT DATE : 5 May 2004 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). I order that the Plaintiff receive out of the estate of the late Thomas Edwin Taylor ("the Deceased") the sum of $120,000, such sum not to bear interest if paid on or before 19 May 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898; (2). I order that the costs of the Plaintiff upon the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (3). The exhibits may be returned.

CATCHWORDS : Succession - Family provision - Claim by adult grandson - Whether Plaintiff is an eligible person - Plaintiff was full time carer of Deceased for a period of twelve months - Financial and material circumstances of Plaintiff - Nature of relationship between Plaintiff and Deceased - Competing claims of beneficiaries (two of whom are infants) - Nature of order for provision. LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration Act 1898 CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (1994) 181 CLR 201 PARTIES : Trevor Taylor (Plaintiff) Jeffery Claude Lewis (Defendant) FILE NUMBER(S) : SC 2275/03 COUNSEL : B. Townsend (Plaintiff) J. Wilson SC (Defendant) SOLICITORS : Norman Roberts, Solicitor (Plaintiff) Kells the Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2275/03 TREVOR TAYLOR -v- JEFFERY CLAUDE LEWIS JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 9 April 2003 Trevor Taylor, the First Plaintiff, and Dianne Hennen, the Second Plaintiff, each claimed an order for provision for their respective maintenance, education and advancement in life out of the estate of the late Thomas Edwin Taylor (to whom I shall refer as "the Deceased"). 3 The Deceased died on 29 September 2002, aged eighty-eight (he having been born on 25 December 1913). He left a will dated 22 June 2002, probate whereof was on 21 November 2002 granted to Jeffery Claude Lewis, the executor named in such will, who is the Defendant to the present proceedings. (I would here record that the Defendant informed the Court in his oral evidence that the correct spelling of his first name is "Jeffery", despite the spelling of that name shown in the will, the probate and the various affidavits and other documents filed in the present proceedings.) 4 Each of the Plaintiffs is a grandchild of the Deceased, each having been born to the late Trevor Taylor, the only child of the Deceased. Trevor Taylor died, aged nineteen, in a motor accident on 16 July 1962, when the Second Plaintiff was aged only one year (she having been born on 24 January 1961) and shortly before the birth of the First Plaintiff (he being born on 31 August 1962). 5 Subsequent to the institution of the proceedings and to the filing of a considerable quantity of affidavit evidence, the Second Plaintiff filed a notice of discontinuance on 2 October 2003. In consequence, therefore, the proceedings have continued as a claim by only the First Plaintiff, Trevor Taylor (to whom I shall hereafter in this judgment refer as "the Plaintiff"). 6 By his will the Deceased gave the entirety of his estate, after payment of debts and expenses, to be divided equally among his three great grandchildren, Rebekah Taylor, Brittany Taylor and Emmeline Taylor, "to be paid to them upon attaining eighteen (18) years of age". 7 The three named beneficiaries are three of the five children of Dianne Hennen, formerly the Second Plaintiff herein. Two of those beneficiaries, Brittany and Emmeline, are infants, Brittany having been born on 11 June 1987 and being presently aged sixteen; and Emmeline having been born on 24 February 1991 and being presently aged thirteen. The third beneficiary, Rebekah, was born on 27 September 1977 and is presently aged twenty-six. 8 At the time of his death the assets of the Deceased consisted of real estate situate at and known as 32 Moore Street, Austinmer (having an estimated value of $410,000), money in a passbook account with IMB Limited in an amount of $33,589, and Dust Diseases Board (Workers Compensation) payment in an amount of $3,245. 9 The Deceased's liabilities totalled $3,337 (the chief liability being funeral expenses of $3,211). 10 The house property at Austinmer has now been sold, and the other assets realised. The assets of the estate presently consist of the sum of $457,792, which is invested with IMB Limited. 11 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiff, if successful, will be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendant will be entitled to an order for his costs out of the estate, whatever be the outcome of the Plaintiff's claim. It has been estimated that the costs of the Plaintiff will total $53,625, whilst those of the Defendant will total $60,494 (of which latter figure an amount of $31,897 has already been paid). That is, the entirety of the costs will be in a total amount of $114,119. That figure is almost one quarter of the net estate of the Deceased ($467,077). For a case the hearing whereof occupied only a little over two days and which has not been in any way out of the ordinary, it seems to me that costs totalling almost one quarter of the value of the net estate are excessive. Unless any of those costs are disallowed on assessment, it is likely that the amount available for distribution will be of the order of $375,000. 12 The Plaintiff left school at the age of fifteen and worked for a number of years before returning to school in 1983 and completing his Higher School Certificate. Throughout his childhood and school days and, indeed, until he departed for overseas in 1984, the Plaintiff visited the Deceased regularly, once or twice a week. It would appear that there was a close and affectionate relationship between the Deceased and his two grandchildren. Such a relationship is understandable in the light of the fact that the father of those grandchildren was the only child of the Deceased and that that only child had been killed in tragic and unexpected circumstances when aged only nineteen. Such a close and affectionate relationship between the Deceased and his two grandchildren was manifested by the terms of the will which the Deceased made on 18 September 1969 (when the Plaintiff was aged seven and his sister was aged eight), by which the Deceased gave the entirety of his estate to such of his two grandchildren "who shall be living at my death and attain or have attained the age of twenty-one years and if both in equal shares absolutely". 13 Until he departed for the United Kingdom in 1984, at the age of twenty-one, the Plaintiff resided with his mother and his stepfather, John Williams (whom his mother had married in 1968), apart from a period of about twelve months which he spent in Queensland. 14 From 1984 the Plaintiff has lived essentially in London, returning to Australia on a number of occasions since 1988. In the United Kingdom the Plaintiff has been employed as an office manager and publicity assistant. Since 1999 the Plaintiff has worked independently as a freelance artist and designer. However, he has received little income from that work. Since January 2003 he has been in receipt of British unemployment benefits. He lives in what has been referred to as a "council flat", which he rents from the Southwark Council in southeastern London. The Plaintiff is unmarried and has no dependents. 15 The Deceased, who had been a widower since the death of his wife in 1969, resided on his own (except for a period of about four years in the 1970s) at 32 Moore Street, Austinmer, which had been his matrimonial home, and which was the chief asset in the estate of the Deceased. That residence appears to have been a modest (albeit heritage listed) and far from commodious two bedroom miner's cottage, constructed of weatherboard with a tin roof, which (at the Deceased's insistence) was not connected with telephonic services. 16 In February 2000 the Plaintiff's maternal grandfather died unexpectedly, and the Plaintiff returned to Australia for his funeral, remaining for one month, and living at his mother's residence. During that period the Plaintiff saw the Deceased daily. 17 In April 2000, as a result of being informed by his sister Dianne that the Deceased had been taken to hospital, suffering from renal failure, the Plaintiff returned to Australia, and resided with the Deceased in the Austinmer house for the ensuing year. The Plaintiff regarded himself as the Deceased's carer throughout that period and, indeed, was in receipt of a carer's pension from Centrelink for the period from July 2000 until his return to the United Kingdom in April 2001. 18 On 11 May 2000 the Deceased granted a general power of attorney to the Plaintiff and his sister Dianne, such power of attorney being joint and several. The power of attorney in favour of the Plaintiff was never revoked, although that in favour of Dianne was revoked by the Deceased on 11 July 2002. 19 According to the Plaintiff, whilst the Deceased was in hospital, until about the end of May 2000, the Plaintiff visited him each day, and assisted in feeding him. The Plaintiff attended to his washing, and purchased any requisites the Deceased needed. The Plaintiff also massaged the Deceased's legs each day, that procedure being required because of an arthritic condition from which the Deceased was suffering. 20 After the Deceased returned to his own residence, the Plaintiff attended to his meals, and his personal hygiene (the Deceased being frequently incontinent at night), as well as looking after the house. 21 Throughout the year whilst the Plaintiff was living with the Deceased, from April 2000 until April 2001, the Plaintiff was provided with accommodation and food by the Deceased. 22 In April 2001 the Plaintiff returned to London, to attend to his affairs in the United Kingdom. He had obtained permission from the Southwark Council to be away from his council flat for twelve months, until April 2001. According to the Plaintiff, the Deceased gave him $1,000 to assist with his living expenses upon his return to London. 23 The character of that advance of $1,000 by the Deceased was given a completely different complexion by the Defendant, who said that the Deceased had told the Defendant that the Plaintiff had said to the Deceased, "I have no money to get back to England", to which the Deceased had responded, "I will give you $1,000 to buy a ticket, to get you out of my house, and I never want to see you here again". 24 The Defendant also said that the Deceased had said to him, concerning the acquisition by the Plaintiff of heaters for the Deceased's residence, and the consequent electricity bill, that, "This bill is too high, and it's all because of Trevor's heaters". 25 According to the Plaintiff, in the period from July 2000 to April 2001 he carried out a considerable quantity of maintenance upon the residence of the Deceased (including painting; construction of a new bath seat for the Deceased; and re-puttying, painting and fixing the stained glass windows). The Plaintiff said that once he commenced to receive the carer's pension from Centrelink he expended that income upon groceries required for himself and the Deceased, transport costs (including petrol and train tickets), paint and materials which he used upon maintenance of the house, the purchase of two heaters, and herbs and vegetables for the garden, fuel for the lawnmower, cigarettes, and birthday gifts for the Plaintiff's nieces and nephews. 26 The Plaintiff's present financial and material circumstances are as follows. 27 The Plaintiff has no significant assets. His Commonwealth Bank account has only a few dollars remaining. 28 He owns an unregistered motor vehicle, located in London, which is of no commercial value, as well as clothing and personal effects and household items.

Barclaycard MasterCard 1135 pounds Barclaycard Visa 1031 pounds

Total 5498 pounds (about $13,745) 29 In addition, the Plaintiff has a tax liability which has not yet been calculated. 30 The Plaintiff's only income is from unemployment benefits in the United Kingdom. From 21 January 2003 he has been in receipt of 53 pounds, 95 pence a week in the form of a Job Seekers Allowance. That amount increased to 54 pounds, 65 pence a week after 12 April 2003. 31 In January 2003 the Plaintiff completed the last work which he had had by way of paid employment, being for Icon Studio, for which he invoiced an amount of 389 pounds. That is the only remunerative work which the Plaintiff has performed since he suffered an accident in June 2002. 32 The Plaintiff's outgoings consume the entirety of his income, and include the following.

The rent of his council flat is 72 pounds 92 pence a week, which is subsidised under the United Kingdom Social Security System to the extent of 63 pounds and 3 pence a week. The Plaintiff thus pays the balance of 9 pounds, 90 pence a week in rent. Electricity and gas total about 5 pounds a week. In addition, he is currently paying off arrears of 127 pounds in respect of those services at the rate of 2 pounds 50 pence a week. Thus his total payments for electricity and gas amount to 17 pounds 40 pence a week. His credit card payments total 111 pounds a month. 33 The balance of the Plaintiff's income is totally exhausted in living expenses, including food and clothing. He states that he is not able to live on his current income. His credit card debt is continuing to increase, and his private health insurance has been cancelled. 34 The Plaintiff has no superannuation entitlements. 35 After his return to the United Kingdom, but before the hearing of his application, the Plaintiff sustained two separate injuries within a very short period. One was an injury to his foot, requiring several stitches; the other was a dislocated shoulder. At least the latter injury has, to an extent, impacted upon the Plaintiff's ability to perform physical work, of a nature of that which constituted his last paid employment (for example, as a roadie). 36 In his affidavit of 25 September 2003 the Plaintiff expressed his desire that he would use any moneys which he might receive from the estate of the Deceased, firstly to pay off his debts, then to supplement his low income, and, further, to improve his education qualifications and his employment prospects. The Plaintiff was studying part-time for a Diploma in Art and Design Foundation at Southwark College. He proposes ultimately to pursue a degree course in either Graphic Design, Fine Arts or Interior Design. The Plaintiff also expressed an intention to obtain a Certificate in Teaching, which would require that he also pursue a course in mathematics. (The Plaintiff did not offer any evidence concerning the income which he might expect to receive when he obtains those tertiary qualifications.) He said that any money which he might receive from the estate of the Deceased would help in furthering his education, and that he hoped he would also have a sufficient amount to place a deposit upon a residence in Australia. 37 The three beneficiaries, Rebekah, Brittany and Emmeline, are three of the five children of Dianne Hennen. Dianne has two other children, being Grace Taylor-Hennen (born on 14 March 2001) and Charlotte Taylor-Hennen (born 8 August 2002). Grace and Charlotte were born of the marriage of Dianne to Michael Hennen, whom Dianne married in January 1998 and from whom she separated four months later, in April 1998. 38 Rebekah is the child of the late Christopher Scahill, who died on 8 February 1980, he being Dianne's defacto partner at that time. Brittany is the daughter of Michael Morton, and Emmeline is the daughter of Glen Wonson. Apart from her eldest child, Rebekah, who is now aged twenty-six, all the Plaintiff's other children reside with her at 41 Point Street, Bulli. 39 Dianne, who has tertiary qualifications (BA, Dip Ed) from the University of Wollongong, is a qualified teacher, and has been employed as such in the State Schools system from 1994 until the end of 2001, when she took maternity leave. Although she worked part-time in the latter half of 2001 and has subsequently worked as a casual teacher, she has not returned to teaching since the birth of her youngest child, Charlotte, on 8 August 2002. At the present time Dianne is receiving social security benefits as a supporting mother. 40 The general power of attorney which the Deceased gave to his two grandchildren on 11 May 2000 was revoked by him in respect to Dianne on 11 July 2002. She was informed of that revocation by a letter from a firm of solicitors dated 15 July 2002, which also requested her to return to the Deceased various personal items and documents (which she returned as requested). 41 The two infant beneficiaries are totally dependent upon their mother, as also are Dianne's other two infant children. 42 Dianne's financial and material circumstances are as follow:

Assets Current value of accrued superannuation with First State Super - $11,500

Term deposit with Illawarra Mutual Society - $8,500 (representing a gift from Dianne's mother after the death of Dianne's maternal grandfather)

334 shares with Insurance Australia Group, valued at $2.86

IMB savings account - $57.40 IMB bank accounts held in trust for Grace Taylor-Hennen ($90.05), Charlotte Taylor-Hennen ($20.00), Brittany Taylor (about $1,000) and Emmeline Taylor (about $600).

Visa Card, Commonwealth Bank - $600 43 The Plaintiff's present income consists of a Centrelink parenting payment benefit of $546.74 a week. In addition, she receives $14.42 a month in child support payments from Michael Hennen, the father of her two youngest children, Grace and Charlotte. 44 Dianne and her four younger children live in rented accommodation at 41 Point Street, Bulli, for which she pays $88.50 a week to the Department of Housing. Her other weekly outgoings are as follows:

School fees - $5 45 The balance of the Plaintiff's income is totally expended on household outgoings (gas, electricity, telephone), as well as car repairs and clothing for herself and her children. 46 It was the evidence of each of the Plaintiff and Dianne (whose affidavit evidence was read on behalf of the Plaintiff) and of their mother, Mrs Sandra Williams, that the Deceased on frequent occasions stated to both Dianne and the Plaintiff words to the effect that, "When I die this house will be yours; I am leaving it to you both". Such statements are consistent with the testamentary dispositions made by the Deceased in his will of 18 September 1969. 47 According to Mrs Williams, after she had married her second husband and they had had a child of their own, it was proposed that she and Mr Williams should adopt Dianne and the Plaintiff. However, the Deceased objected most strongly to that proposal, saying that his two grandchildren should remain with the surname Taylor. Accordingly, their mother complied with the Deceased's wishes in that regard and no such adoption was ever effected. 48 There was evidence given by the Defendant, who was a close friend of the Deceased, that after the Plaintiff came to reside in the Deceased's house the Deceased made statements to the Defendant to the following effect, Deceased: I want my estate to stay in the family, but Dianne and Trevor have hurt me too much, and it has to go to Rebekah, Emmeline and Brittany.

Deceased: Trevor and Dianne do not deserve a thing because of the way they treat me and show me no respect. It must stay in the family, and I want Dianne's daughters to have it, the daughters with the name Tayor. 49 The Defendant relied upon an affidavit by Rebekah Yasmin Taylor, the eldest child of Dianne, sworn 6 June 2003. That affidavit discloses that Rebekah and her mother have a poor relationship. Rebekah, who is presently aged twenty-six, left home in about June 1993 when she was aged sixteen, at the request of her mother. She then went to reside with her maternal grandmother, Mrs Sandra Williams, until she was aged twenty-one. Since that time Rebekah has lived with her partner, Darren Jackson, to whom she is engaged and whom she plans to marry in 2004. 50 Rebekah graduated as Bachelor of Computing Science from the University of Wollongong in 1999. 51 Rebekah gave evidence of the frequency of her contact with the Deceased, and of statements critical of the Plaintiff, attributed by her to the Deceased, during the period whilst the Plaintiff was residing with the Deceased in 2001-2002. 52 A very considerable quantity of evidence was presented on behalf of the Defendant, being affidavits of himself and various neighbours and acquaintances of the Deceased. The purport of that evidence was to establish that the relationship between the Plaintiff and the Deceased during the twelve months whilst the Plaintiff resided with the Deceased was not a particularly good or harmonious one; that the services performed by the Plaintiff for the Deceased were considerably less than asserted by the Plaintiff, and that the Deceased was dissatisfied with those services, such as they were; further, that the Plaintiff frequently absented himself from the residence of the Deceased when, in the view of the Defendant, the Plaintiff should have been constantly available in his capacity as full-time carer of the Deceased. 53 It is in the context of the foregoing facts and circumstances and in the light of the disputed evidence presented, on the one hand, on behalf of the Plaintiff, and, on the other hand, on behalf of the Defendant, that the Court must proceed to a consideration of the claim of the Plaintiff. 54 I have had the benefit of receiving chronologies and written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file. 55 At the outset, it is necessary for the Plaintiff to establish that he is an eligible person within the definition of that phrase contained in section 6(1) of the Family Provision Act, since if he is not an eligible person he does not have the standing to bring the present proceedings, and his claim must be dismissed. 56 It is submitted on behalf of the Plaintiff that he is an eligible person within paragraph (d) of the foregoing definition. That paragraph is in the following terms, a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member. 57 In the instant case it is asserted on behalf of the Plaintiff not only that he is a grandchild of the Deceased and, in addition, was a member of the same household as the Deceased throughout the period from April 2000 to April 2001), but that throughout the foregoing period the Plaintiff was partly dependent upon the Deceased, in that the Deceased provided the Plaintiff with accommodation and, to an extent, with sustenance. 58 At the outset of the hearing Senior Counsel for the Defendant admitted the status of the Plaintiff as an eligible person, and that the Plaintiff had been partly dependent upon the Deceased. Accordingly, the Plaintiff has the standing to bring the present proceedings. 59 It is appropriate here to observe that the only other person who may be an eligible person in relation to the Deceased is the Plaintiff's sister Dianne Hennen, the only other grandchild of the Deceased. However, since Dianne discontinued her claim for an order for provision, there can be no concluded finding in the present proceedings as to whether Dianne was partly dependent upon the Deceased. None of the three beneficiaries named in the will is an eligible person in relation to the Deceased. None of those beneficiaries is a grandchild of the Deceased (they are all great-grandchildren of the Deceased), and there is no suggestion that any of them was in any way dependent upon the Deceased, or was a member of the same household as the Deceased. 60 It should be recognised that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant. 61 It should also be emphasised that it is incumbent upon the Plaintiff to establish his own claim upon its own merits. The competing claims of the beneficiaries cannot in any way enhance the claim of the Plaintiff. But the circumstances of those beneficiaries may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. 62 I have already referred to the significant conflict between the evidence of the Plaintiff on the one hand (supported, to an extent, by his mother and his sister), and, on the other hand, the evidence of the Defendant and the various neighbours and acquaintances. 63 Very little of the evidence presented on behalf of the Defendant concerning the alleged shortcomings in the conduct of the Plaintiff and in his relationship with his grandfather were based upon personal observations by the Defendant himself or by the other witnesses whose evidence the Defendant relied upon. Most of the evidence in that regard was based upon statements allegedly made to the Defendant and those other witnesses by the Deceased himself (such statements being expressly admissible pursuant to section 32 of the Family Provision Act). 64 The Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically. 65 In the instant case a very clear picture of the Deceased at the time when the Plaintiff was his carer emerged from the evidence. The Deceased was obviously a very difficult old man, of independent attitudes and extremely set in his ways. Complaints about other people appear to have been a way of life for him. I consider that statements made by the Deceased, especially alleged complaints concerning the Plaintiff, his lifestyle, his presence or alleged absences from the Deceased's residence, and the manner in which he fulfilled his role as carer for the Deceased should not necessarily be accepted on their face as accurately describing the Plaintiff and his conduct. It is quite apparent that the role of carer for his grandfather cannot have been an easy one for the Plaintiff. It says much for the character of the Plaintiff that he voluntarily undertook that role and persisted in it for twelve months. 66 Although, as I have already observed, much of the evidence presented on behalf of the Defendant in respect to the conduct of the Plaintiff was based upon statements attributed to the Deceased, in a number of areas the Defendant offered what was asserted to be direct evidence from his own observations. It is appropriate, therefore, where the evidence of the Plaintiff is inconsistent with the evidence of the Defendant, that I should express my views concerning the reliability to be placed upon the respective testimony of those two witnesses. 67 I considered that the Plaintiff gave his evidence in a careful and apparently truthful fashion, without attempting to exaggerate in any way the nature of the services which he performed for his grandfather. The Defendant, on the other hand, presented as an assertive and self-important person, who was prepared to accept unquestioningly as true all statements made by the Deceased, especially those to the detriment of the Plaintiff. 68 The Defendant was confronted with the relevant hospital records and clinical notes of the Bulli and Coledale Hospitals, where the Deceased had been a patient. Those documentary records can be accepted as objective and impartial evidence of the facts contained therein. When under cross-examination the Defendant was confronted by those clinical notes (which he said that he had seen at an earlier stage in the preparation of the proceedings) various inaccuracies and inconsistencies in the evidence of the Defendant emerged. In a number of instances the Defendant conceded those inaccuracies and inconsistencies. The clinical notes clearly supported the evidence of the Plaintiff concerning his contact with the Deceased during the periods whilst the Deceased was in the Bulli and Coledale Hospitals. 69 The attitude expressed by the Defendant concerning what he considered to be the proper role of a carer to someone in the situation of the Deceased was totally unrealistic. He expressed the view that the carer should be in attendance upon the Deceased twenty-four hours of the day, seven days of the week. 70 I preferred the evidence of the Plaintiff to that of the Defendant concerning the conduct of the Plaintiff whilst he was residing with his grandfather in 2000-2001. Similarly, where the evidence on some matter in issue consisted of the unsupported oral testimony of the Plaintiff on the one hand and of a neighbour or acquaintance of the Deceased on the other hand, I preferred the evidence of the Plaintiff. It will be appreciated, however, that in quite a number of instances the evidence of the Plaintiff was corroborated by that of his sister, Dianne, or of his mother, Mrs Williams, both of whom were very well acquainted with the Deceased, and each of whom maintained contact with him down the years (although that contact was not as great as was the contact of the Plaintiff whilst he was residing with his grandfather). 71 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-209, the Court must first determine whether the Plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. 72 In the instant case, the Plaintiff is in extremely modest, not to say straitened, financial circumstances. He was unemployed before he left England to come to Australia to look after his grandfather. He was living in a council flat, and subsisting on unemployment benefits. He had no assets apart from an unregistered, and unregisterable, motor vehicle, and his personal effects. He has continued to be unemployed since his return to the United Kingdom. It should also here be noted that the Plaintiff did not receive British unemployment benefits during his twelve months in Australia in 2000-2001. 73 I am satisfied that the Plaintiff has established that, on account of his relevant need, he has been left without adequate provision for his maintenance, education and advancement in life. 74 Since the Plaintiff is an eligible person only within paragraph (d) of the definition of that phrase, the provisions of section 9(1) of the Act are called into operation. That subsection requires that in the case of an application by an applicant who, as here, falls within that paragraph of the definition, "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". That phrase was considered by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679. His Honour, at 681, said of "this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)", [T]he "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. 75 In the instant case it was submitted on behalf of the Plaintiff that factors of the nature referred to in section 9(1) were the following: · The very high degree of commitment to the Deceased's welfare which the Plaintiff displayed in coming to Australia to look after the Deceased. · The fact that the Plaintiff had been promised substantial inheritance from the Deceased ever since he was a young boy. · The very significant needs of the Plaintiff. · The very substantial merit of the Plaintiff's claim. · The fact that the Plaintiff was a beneficiary under the earlier will of the Deceased. · The fact that the Plaintiff and his sister are the only children of the Deceased's only child, thus making them a natural object of testamentary recognition by the Deceased; indeed, it was submitted that they stand in the shoes of their own deceased father (and that their position in relation to him should be compared with that recognised by section 29 of the Wills, Probate and Administration Act). 76 I am in agreement with the submission on behalf of the Plaintiff that the foregoing matters constitute factors which warrant the making of the present application. Indeed, it is apparent that the efforts of the Plaintiff to care for the Deceased had the result, to a significant degree, in his being cut out of the will of the Deceased, and being deprived of the testamentary bounty which, not only had the Deceased led the Plaintiff to expect, but had been included in the will which the Deceased had made in 1969. It will be recognised that the Deceased's final will, under which neither the Plaintiff nor Dianne received any benefit, was made on 22 June 2002, a little over a year after the Plaintiff had returned to the United Kingdom following his period of travail in Australia as his grandfather's carer. 77 The claim of the Plaintiff must also be approached in the context of other persons who have a claim upon the bounty of the Deceased or who are the recipients of the testamentary beneficence of the Deceased. In the instant case, the only other such persons to be considered (since Dianne has abandoned her claim) are the three great grandchildren of the Deceased, who are the three beneficiaries named in his will. 78 I have already recorded that Rebekah, who is an adult, in employment, living with her de facto partner (whom she proposes to marry during the current year), declined to place before the Court any details of her financial circumstances. Further, that it was expressly stated on behalf of the Defendant that the competing claim of Rebekah asserted by the Defendant was not grounded upon that beneficiary's financial and material circumstances. The other two persons whose situation must be recognised are the two infant beneficiaries, being Brittany and Emmeline, each now being an infant, aged respectively sixteen years and thirteen years. Those two beneficiaries are totally dependent upon their mother. Their respective fathers do not provide any maintenance or financial assistance. Evidence was placed before the Court by Dianne concerning her financial and material circumstances, and the circumstances in which each of Brittany and Emmeline live, their health, their schooling, and their educational and career aspirations. 79 Any order for provision which might be made in favour of the Plaintiff would need to be of such a nature that at least the two infant beneficiaries would each receive a significant benefit from the estate of their great grandfather. 80 I am satisfied that the Plaintiff has established an entitlement to an order for provision for his maintenance, education and advancement in life. 81 I have already set forth details of the present financial and material circumstances of the Plaintiff. He is unemployed, living in a council flat in London. He receives unemployment benefits, and is studying to better his employment prospects. His income is small, and he finds it difficult to live within his means. He had significant liabilities. His various debts, in English currency, totalled 6,350 pounds (being the equivalent of almost $16,000). He has borrowed $3,000 from his mother, in order to keep himself afloat financially. 82 It was submitted on behalf of the Plaintiff that it would be appropriate for him to receive a lump sum to supplement his income and to give him a buffer against the contingencies of life. In determining the amount which he should receive, it was submitted that, since the Plaintiff resides in the United Kingdom, such an amount should be calculated in sterling currency. It was submitted that an amount of between 40,000 pounds and 60,000 pounds would be appropriate (that is, between $100,000 and $150,000). 83 I am satisfied that the Plaintiff has established an entitlement to an order for provision of a nature which will allow him to repay his debts, to have a sum which will enable him to improve his modest lifestyle, will assist him in pursuing his educational aspirations, and will provide him with a fund to meet unforseen contingencies. I propose that the Plaintiff should receive the sum of $120,000. Such an amount will allow the Plaintiff to discharge his debts, and to have a fund in the equivalent of 40,000 pounds for the other purposes to which I have just referred. 84 Provision for the Plaintiff in an amount of $120,000 would have the consequence that there would remain in the estate at least $255,000, to be divided among the three beneficiaries. That is, each of Rebekah, Brittany and Emmeline, instead of receiving almost $156,000 (if the present claim had not been brought), would each receive about $85,000. I would here observe that, in the light of the comments which I have already made earlier in this judgment concerning what appear to me to be the excessive amounts of costs estimated by the respective parties, it is possible that part of those costs may be disallowed on assessment and the amount available for distribution may be greater than the amount of $375,000 which I have calculated as being the amount available for distribution after deduction of the costs of both the Plaintiff and the Defendant. 85 In all the circumstances, I do not consider that the competing claims of Rebekah, Brittany and Emmeline (who, it should be emphasised, are the chosen objects of the testamentary beneficence of the Deceased, and of whom two are still infants) would have the effect of reducing, let alone extinguishing, an order for provision of the nature which I have proposed for the Plaintiff. 86 Accordingly, I make the following orders:

(1). I order that the Plaintiff receive out of the estate of the late Thomas Edwin Taylor ("the Deceased") the sum of $120,000, such sum not to bear interest if paid on or before 19 May 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898.

(2). I order that the costs of the Plaintiff upon the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned. **********

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Judgment (19 paragraphs)

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