Discussion
32It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for maintenance, education and advancement in life. She asked the Court for a legacy of $100,000 in addition to the $50,000 she has already received under the will. This is to enable her to reduce her mortgage and presumably so she can remain in her house a little bit longer before everything catches up with her once again.
33The defendant submits that the summons should be dismissed because there is very little in the estate and the parties effectively are in a very similar financial situation. He also points out the enormous disparity in the care given by the defendant and the plaintiff and the defendant starting out life with children to maintain into the future and possibly even another child. All that is behind the plaintiff.
34As detailed above in par 2, the deceased made a number of wills, each reducing the legacy to the plaintiff, and her final will was made in 2008. In 2007, the deceased executed documents to transfer the Terrigal property to the defendant but this was not proceeded with, apparently due to the deceased not wishing the pay approximately $18,000 in stamp duty if the transfer went ahead. The defendant submits that the deceased's actions are a clear indication of the deceased's intention that one child should get to keep the family home, together with an explanation as to why the deceased felt that was appropriate.
35In Taylor v Farrugia [2009] NSWSC 801 Brereton J discussed the applicable principles which relate to a claim by an adult child against the estate of a parent, at [57] - [58]:
"It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].
Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent."
36There was no requirement that the deceased provide for her children equally (see, for example, Carey v Robson (2009) NSWSC 1142 at [57]). The plaintiff received approximately 10% of the estate. The discrepancy is amply explained by the small estate and the contribution Con made to the deceased's welfare.
37Section 60(m) of the Succession Act expressly states that the Court may consider, when determining whether to make a family provision order, the character and conduct of the applicant before and after the date of the death of the deceased person.
38While it is appropriate to consider the nature of relationship between the plaintiff and the deceased at this stage, the focus of the Succession Act is not finding out where the fault lies in a difficult relationship, but whether, in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he or she in fact did to constitute proper or adequate provision for the plaintiff: Young J in Walker v Walker (NSWSC, 17 May 1996, unreported). His Honour noted that:
"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously...It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between."
39In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, the court said, in relation to a situation of disharmony between parent and child that the moral duty of a testator to provide for their children continues:
"If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life.
The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed."
40In certain circumstances, however, conduct of a child can justify a reduced, or no, provision to be made from the will of a parent. This was recognised by Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71] - [72]:
"It is one thing to make provision for a child, even an adult, where the court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales [1962] HCA 19; (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.
It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years."
41As I said above, the plaintiff's relationship with the deceased suffered when she left home to be with her boyfriend against her parents' wishes and later married him. She also lived in Darwin from 1976 to 1994 and then moved to Melbourne where she now resides. As a consequence of their geographic separation, the extent of contact between the plaintiff and the deceased was limited. However, I do not believe there is any conduct of the plaintiff that could be considered hostile or callous and there was some contact via telephone and physical visits from time to time. There was no estrangement other than the period already referred to and the deceased continued to receive the benefit of communication and contact, albeit not as frequently as the deceased might have wished for.
42Counsel for the defendant referred me to Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 where Gibbs J commented:
"If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon C.J. in Coates v. National Trustees Executors & Agency Co. Ltd. [1956] HCA 23; (1956) 95 CLR 494, at p 510 when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v. National Trustees Executors & Agency Co. (Australasia) Ltd. (1979) 143 CLR 134 . There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v. Lang [1960] HCA 73; (1960) 104 CLR 124, at p 129 ), a widow (E. v. E. (1915) 34 NZLR 785 , discussed in In re Worms; Worms v. Campbell (1953) NZLR 924, at p 935 ) or a widower (In re McElroy [1940] VicLawRp 74; (1940) VLR 445, at p 447 ). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided. (at p498)"
43The defendant provided a high degree of personal support and domestic assistance to the deceased over the 18 years that he lived with her in the Terrigal property. He also expended a considerable amount of his own money meeting the deceased's household and daily expenses as well as paying for maintenance and improvements to the property. In doing so he contributed to the estate of the deceased.
44In this case the deceased recognised the care provided by the defendant in her later years and made a greater provision for him out of her estate. In my view the conduct of Con in the last years of the deceased's life amounts to conduct justifying a greater provision than for the plaintiff.
45The extent of the deceased's estate can be considered when determining whether adequate provision has been made, as well as the financial resources and needs of the other beneficiaries (s 60(c) and (d)).
46In Foley v Ellis [2008] NSWCA 288 Sackville AJA (with whom Beazley JA agreed) stated that, in assessing whether the provision made for an applicant was inadequate, the needs of the other claimants on the deceased's bounty must be considered. His Honour said at [88] - [89]:
"... the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act.
47The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [122] (231):
"Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances ... The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."
48In this case consideration of the other beneficiaries is especially important given the small size of the estate. In Re Buckland, deceased [1966] VicRp 58; [1966] VR 404 at 412-413 the court recognised that, in a case of a small estate, the notion of what provision was adequate would need to be adjusted accordingly:
"In many of the cases coming before the courts the decision as to what maintenance it was proper for a testator to have allowed has been influenced by the circumstances that there was competition between dependants, all with moral claims for maintenance and support out of his estate, but the estate was not large enough to meet them all. Thus, what was considered to amount to adequate provision for the proper maintenance of a claimant has been held to be less than it would otherwise have been."
49While it is evident that the plaintiff has a genuine need so does her brother.
50As counsel for the defendant submitted, both children of the deceased have homes worth a similar amount, both are of similar age and neither is apparently generating any meaningful current income. Both have debts, although those of the plaintiff are greater and both seem financially stretched with little means.
51The testator probably recognised the self-evident fact in this case that the estate is so small that it cannot provide for all the claims on the testator's bounty. Given the plaintiff's financial circumstances, even an amount of another $100,000 will not allow her to reduce her expenditure to a point where she will be able to keep her house. Such a payment would, after costs, leave the defendant in a position where he would have to sell the house and receive about $275,000. For the plaintiff to receive $150,000 and the defendant $275,000 there is little recognition of the extensive care given to the deceased over 17 years and his financial support of the deceased of $127,075.
52The Court is prohibited from interfering with the distribution of the deceased's estate, save to the extent that is necessary to ensure that adequate provision is made for the applicant's proper maintenance and advancement in life (see Smilek v Public Trustee [2008] NSWCA 190). In this case, the plaintiff's completely inappropriate financial situation, which is of her own making, cannot be rectified by the deceased. All she could do was give her a little support. In my view, the plaintiff has not been left without adequate provision.
53In case I am wrong in that regard, I will turn to consider the second stage of the process as set out in Singer v Berghouse, namely whether the court should, in its discretion, make an order for provision of the plaintiff.
54The defendant gave evidence of testamentary intentions of the deceased, which are relevant pursuant to s 60(2)(j) of the Succession Act. He said that on 3 September 2011 the deceased had said words to the effect:
"I have left everything to you as you have don everything for me, I don't want Kay to make any trouble for you. If she does try and explain to her when the time is right, and I am not here, that she chose her own road and neglected the care of her mother."
55The deceased passed away on 24 September 2011.
56On the discretionary question, the plaintiff's claim would not succeed. The plaintiff's relationship with the deceased is relevant at this stage as are Con's contributions to the deceased's welfare as her carer. There is ample evidence of the deceased's intention to provide a larger provision for Con in recognition of his services to her.
57I dismiss the plaintiff's claim and will hear the parties on costs.
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Decision last updated: 14 December 2012