Tucker v Tucker

Family history 13The deceased was born in May 1924 and the plaintiff in November 1925. They married on 6 October 1963. In 1968 they emigrated to Australia. The deceased was an engineer working on ships for much of his life but they settled in Australia. In July 1989 the deceased executed an early will. Apart from some small legacies, the residue of the estate went to the plaintiff. The plaintiff actually became an Australian citizen on 11 December 2003. It was on 26 February 2010 that they executed a deed of loan licence with Lourdes Village, to which I have referred, and the house which they had at Willoughby was sold on 11 March 2010 for $1,510,000. That arrangement and the rearrangement of their living conditions at that stage was all managed very capably by the defendant, Warren Tucker, who used a lot of his skills and did a lot of work in having that done, particularly cleaning up the house. 14Thus, one sees at the time, in March 2010, a $5,000 payment to Josephine Pfeiffer, Warren's former partner, who did a lot of work cleaning up. The company KET Pty Limited was incorporated in April 2010 but that plays little part in this. In June 2010 there was a loan of $10,000 from the deceased to Warren Tucker and in December 2010 a payment of $3,000 to Warren, which was expenses. On 2 August there was a payment of $10,000 for airfares, car rental and a computer to Warren from the deceased. 15As I said, the deceased died on 16 May 2011. In June of that year the plaintiff was visited by her niece from the UK, Rita Seeber. Notwithstanding the plaintiff's age they travelled to the United Kingdom for the plaintiff to see her close family members. She returned in September. Probate was granted on 20 December 2011 and the summons filed within time on 14 May 2012.

Eligibility 16The plaintiff is clearly an eligible person. 17In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. These comments were equally applicable to claims under the Succession Act. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd. 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. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 18However, as a result of Andrew v Andrew [2012] NSWCA 308, the situation is, somewhat different. In that case, Barrett JA said that the two stage approach adapted under the Family Provision Act still applied to claims under the Succession Act. Basten JA held that a two stage approach was not necessary. The President thought it was an analytical question of little consequence. In the circumstances of this uncertainty, I will consider it on both bases.

The plaintiff's situation in life 19The plaintiff is eighty-seven years of age, single with no dependants. She lives in Lourdes Retirement Village. She has the following assets, apart from her interest in the retirement village: Cash, invested through her solicitors $70,000.00 St George Bank account $15,574,01 Commonwealth Bank account $ 4,005.20 3,055 units in Stockland Trust $10,417.00 Debt owing by executors for commutation lump sum from State Super $ 1,279.31 TOTAL $101,275.52

20Mrs Tucker receives the aged pension of $755.50 per fortnight and a UK pension of ₤11.10 per fortnight, together with interest on her bank accounts and distributions of approximately $393 from Stockland Trust. Her total annual income is about $21,000. Her expenditure is $26,232 at the moment. 21Mrs Tucker has short-term memory loss and dementia, probably of the Alzheimer's type. Her geriatrician, Dr Terence Finnegan, states that she was capable of giving instructions for the commencement of the proceedings but may have difficulty in holding a lot of complex information and, depending upon the complexity of the decision, she may need time to absorb information and could become flustered or confused, requiring some time to get back on track. This is relevant in respect of any cross-examination but that, fortunately, went fairly smoothly and she managed to cope fairly well with that. 22Because of the concerns expressed by the trust, an application was made for the appointment of a tutor and Anthea Mairin Kennedy was appointed on 8 October 2012. As I have said, she still lives in the Lourdes Retirement Village and despite her dementia she is quite active. She has regular activities, which include attending daily Mass, book reading, twicemonthly visits to Lindfield shopping centre to do her own shopping, bingo, sing-a-longs, visits to Chatswood by bus to Lindfield and thence by train to Chatswood with her friends, banking, paying bills, entertaining her friends at least once a month, preparing her own breakfast and evening meal, enjoying activities organised by the Village, social get-togethers, et cetera. 23The plaintiff's relationship with the deceased was for forty-eight years. They had one period of separation of six weeks some years ago. Although there is evidence of some quarrels, a number of the deceased's conversations seem to have been affected by his alcohol consumption and are, therefore, unreliable. They do not have children and the deceased insisted that the plaintiff not work but stay at home to look after him, including cooking three-course dinners each night. 24It seems the deceased used the discretionary trust to provide for his wife because he feared that she had no experience with money. He was also concerned that it may pass to relatives in England on her death. 25It is necessary to consider the situation of others having a claim on the deceased's bounty.

The situation in life of Warren Tucker 26Warren is single, aged sixty-three, with no dependants. He has very few assets, they consist of his household furniture, two computers, personal clothing and a share in KET worth $1. He estimates his assets at $2,000. He has a debt on his Visa card of $4,500. Because a major project in which he was going to be involved in the Solomons has not commenced, he is in a difficult position so far as income is concerned. 27In 2011 his income was $13,112 and he says it will be similar to that this year. He has a New Start allowance from Centrelink and he gets $500 a fortnight. His fortnightly expenditure is $919 and he has been selling his personal assets and using his credit card to meet his extra expenditure. 28Warren had a good relationship with the deceased and in many respects the deceased treated him as the son that he did not have. He was of great assistance to the deceased over the years. He was particularly helpful in relocating them to Lourdes and doing an enormous amount of work in the process. He is in good health and receives some benefits from the deceased, which I have referred to in the chronology. 29There are a number of other people, some of the legatees, who have given evidence of their financial circumstances and I will turn to deal with each of those.

Paul Joseph Scully 30Paul is a nephew and one of the legatees and he would stay with the deceased from time to time and at one stage was asked by the deceased to be his executor. He works with the Queensland Ambulance Service in the mental health area and trauma counselling. He is married with five children and eleven grandchildren. His wife is dependent on him. His income is $2,640 per fortnight. His expenditure is about $1,200 per fortnight. They have a home worth $400,000, cars and he has a superannuation retirement fund of $600,000 and he receives a pension.

Dominic Scully 31Dominic also is a nephew and a legatee. He had contact with the deceased and he works as a contract sheepskin sewing machinist. He was married in 1988 and five of their six children still live with them. His wife works. He receives $462 per fortnight and his wife $1,000 a fortnight. His wife also receives $382 per fortnight from a family allowance. One of their children needs assistance because of an illness that they had at a young age. Their fortnightly expenses are $2,102. They own their home in Queensland, which is valued at $212,000 and some cars worth $26,000, about $10,000 worth of superannuation and they have a mortgage on the property of $68.000.

Christopher John Scully 32Mr Scully is a nephew and also a legatee. He also had contact with the deceased during his lifetime, of which he gives evidence. He, unfortunately, is out of work and does not receive a pension. He is divorced and lives alone. He has apparently some savings, which are not in evidence, and he is living on them. He has a home worth $500,000 and a Land Cruiser. Apparently he bought a home for his mother worth $450,000, which is subject to a mortgage and he is having difficulty meeting those payments for his mother.

Michael James Scully 33He also is a nephew and one of the legatees and had contact during his lifetime with the deceased. He is retired and lives alone and has the aged pension of $772.60 per fortnight. He owns his home worth $282,000 and owns a van worth $6,000. He still has a mortgage of $87,000 and has to make fortnightly mortgage payments $260. 34It is necessary to see how the plaintiff says she has been left without adequate and proper care and support. This is helpfully set out in the plaintiff's submissions in these terms: "21. In early 2012, she travelled to visit her family in England, accompanied by her niece Rita Seeber. She wishes to travel regularly (at least annually) to the United Kingdom for as long as she can, to visit her family. She has no close family in Australia. Over five years, the estimated cost, with a companion, is between $57,000.00 and $79,500.00 travelling business class. 22. She requires taxis to travel outside the Village. On the basis of two trips each week for three weeks each month over five years the cost is $21,600.00. 23. The Village offers various services to residents in self-care premises at an additional cost including hairdresser, bus trips, speciality meals, social club, tai chi, exercises etc estimated at $48,600.00 over five years. 24. Mrs Tucker wants private health insurance. Over five years the cost will be $3,250.00. 25. She wants a home-care worker for cleaning and other domestic assistance twice a week for an hour a day at an annual cost of $6,240.00. 26. As Mrs Tucker ages, she will require further support to remain in her unit from Lifestyle Home Services, including assistance with dressing, showering, hair care and grooming, assisting with mobility and transfers, cleaning and other assistance. The weekly cost is $897.00 or $46,644.00 annually. 27. Mrs Tucker needs an operation on one of her eyes to remove cataracts. She borrowed $6,000.00 from her niece Rita for an operation on one eye, which remains unpaid and an operation on the second eye will similarly cost $6,000.00. 28. Mrs Tucker has not seen a dentist for almost thirty years and is using the same metal palette fitted at that time. She requires funding for any dental or orthodontic work. 29. Mrs Tucker also requires new clothes and shoes totalling $3,656.55. 30. She also has household and personal expenses of $12,232.00 annually. 31. Over five years, these expenses will total $420,298.55 plus the dental work." 35One matter that was not included in that was the matters that appear in the affidavit of Anthea Mairin Kennedy, sworn 13 December 2012. In para 22 and following she deals with the situation which might arise if the plaintiff needs further assistance in her daily living beyond that which is presently provided by the Catholic carers. The cost of this additional care from Lifestyle Home Services is set at an annual figure of $112,840. Another important matter which also appears is, if Anne is totally unable to care for herself with help, she will need to move into the high care section at Lourdes Retirement Village where the cost of a single room with a bathroom entails a bond of $500,000. The present loan arrangement under which she lives can be rolled over to allow for that to occur. 36One of the things about these claims is that it does not account for the time value of the money. The plaintiff's relationship with the defendant has varied recently and she now says that she does not get on with the defendant. Previously, in the past, she was thankful for his assistance and called on him for help when the deceased's health was failing. He provided that help unstintingly. 37The provision for the plaintiff by way of a discretionary trust has been considered in a number of cases. For instance, in Gregory v Hudson No 2 [1997] NSWSC 413, Young CJ in Eq had the following to say: "Mr Broun QC suggests that the proper provision would be that the widow receive sufficient moneys to buy a home of her own in fee simple, that she have $400,000 to pay out her mortgage on the Yokohama unit and for various other expenses which she lists in para 112 of her affidavit, and have an income of $150,000 a year. However, a straight legacy of seven million dollars would appear to be sufficient to meet her needs. Mr Broun QC said that all the deceased has provided for is a right of occupation dum casta, $50,000 a year and a car, and this is a completely inadequate provision by a wealthy man for his widow. He says that a provision under the discretionary trust is not a provision out of the estate. Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq (1959) noted 33 ALJ 240, Norris, AJ said at 39, "It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate." He then cites Re Allen [1922] NZLR 218. Dickey on Family Provision after Death (LBC Sydney 1992) says at page 121, "There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case." Mr Hallen submits that I should take into account the discretionary nature of the benefits which have been provided under the discretionary trust. Mr Hallen got close to submitting that the benefits under the discretionary trust were fairly secure, but no doubt realises that this could not be so in view of the law as decided in Hartigan's case. I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of the discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. On the other hand, the present trustees are men of great capacity and integrity, and there is no reason to doubt at all their sincere statement that, at least for the present, they intend to carry out the deceased's wishes. I would consider that I am entitled to take the view that for the next five years, the widow will be receiving the benefits under the discretionary trust as if they were benefits under a trust which could be enforced. However, beyond that period, the matter must be one of speculation. The trustees may change, the investments of the trustees might fail, there may be serious problems with one of the other beneficiaries, or new trustees may be appointed who take a set against the widow and reduce her benefits. It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it." 38I think his Honour's comments are applicable in this case. It would be preferable, in my view, for the plaintiff to receive a legacy rather than her interest in the discretionary trust. The estate is now $716,222 and the pecuniary legacies total $306,000 and there is also the costs. I think so far as where any amount ought to fall, that the plaintiff should have priority, firstly over the discretionary trust and then over the various legatees but I do not think she should, in the scheme of things, have priority over Mr Tucker. This is because of the long-standing relationship he had with the deceased and help he provided and that ought not be disturbed by the provision which the Court will have to make. 39I turn now to the various heads which are set out in the submissions to deal with what I think is appropriate. Firstly, as far as the plaintiff's claim for airfares is concerned, it seems the plaintiff may need to travel business class. Economy is $3,000 return, premium economy is $6,000 return and business class would be in the order of $10,000. She has said that she wishes to visit her family back in England yearly. Whether she is able to do that may change over the next few years. She presently has a life expectancy of 6.1 years. One of the things about the airfares is, if she does go she will not have a substantial need for some of the later matters, such as the matters in para 26 and one finds that if she is away, say, for three months, the saving in those expenses is about the cost of a business airfare. So that there is some buffer, I do propose to provide the sum of $20,000. 40There are a number of things, such as one-off things such as clothing and surgery, which are $14,570 which is appropriate. There is also provided health expenditure of $3,250, which is necessary. There are a number of other matters which she has put forward as expenses, which she will incur and since these are partly expended I think I will include them. There is $21,600 for taxis, there is a number of specialty needs referred to in para 23 of the submissions, which comes to a total of $48,600 and there is domestic assistance, which would be approximately $30,000 over five years. The other figure, which is one of the critical ones, is the further support for dressing, showering and grooming of $46,643 per annum. Allowing for five years, that would be $233,220. There is no evidence about dentistry and then she has her annual expenses but those are already funded by her income. The total is $371,240. 41There is also then, of course, the costs of the additional high care. It is true that there is no evidence to suggest that she will need it but one's experience would suggest that perhaps later in life there might be a need of that for some short time, so perhaps one might think it might be for a year, but say it was for part of a year before she had to go into some other accommodation which involved high care which would involve the purchase of another unit amounting to approximately $75,000 to $106,000. That is a figure for a legacy but all of this, of course, is to be done as a lump sum which would be paid now and a lot of the expenditure is for future expenses. 42I note that there have been other suggestions helpfully put in the submissions by the defendant about the possibility of having an annuity but in my view I think it is preferable to pay a legacy. There was also a suggestion from the defendant that there should be a charge in favour of the estate on the plaintiff's interest in the retirement village so that when she died that interest would pass back to the estate. Effectively that means, as put in the submissions by the plaintiff, that all she is getting is a loan from the estate to fund her last few years with all the money going back to the estate. 43Given the length of the marriage, I do not think that is appropriate. I appreciate the plaintiff only has a number of years to live on the life expectancy tables. In my view there should be a legacy but I think it should be discounted from the figure which I have arrived at above to at least reflect the time value of money, lack of discount factor and the figure which I fix on taking that into account is $385,000. 44Accordingly, I would propose to order that in lieu of the provision for the plaintiff in the will of the deceased that instead she receive a pecuniary legacy of $385,000 to be charged, firstly, on residue and, secondly, on the legacies passing to the legatees under the will other than Warren Tucker. 45I make orders in accordance with the proposed orders which I have outlined. I order that the provision for the plaintiff will be held by a trustee to manage that for the plaintiff, that trustee being Mr George Bognor, who I am informed has consented. The terms of the trust will be dealt with later and I will receive submissions as to the terms of the trust and will make further orders. 46I order interest run on the legacy in the way provided for in the Probate and Administration Act 1898 on and from 1 February 2013. 47I direct the parties exchange submissions and ideas about the form of the trust and submit them by the end of the first week of February. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2013