Webb v Webb; Estate of W E Webb [1999] NSWSC 343 | Case summary

JUDGMENT His Honour: 1 These are five sets of proceedings brought under the Family Provision Act 1982 ("the FPA") by five of the children of Wilhelmina Emma Webb, deceased, namely, Graham David Webb ("Graham"), Barry Neil Webb ("Barry"), Peter Allen Webb ("Peter"), Brenda May Kitteridge ("Brenda") and Barbara Linda Graham ("Barbara"), against her executors claiming that provision or greater provision should be made for them out of her estate than was made by her will dated 31 July 1990 ("the will"). The lastmentioned set of proceedings has been settled, and the Court has been asked to approve the settlement under s 31 of the FPA. The other four sets of proceedings have been heard before me, and I have deferred the application for approval of the settlement of the fifth until I deliver judgment in those four, which I now proceed to do. The Legal Framework 2 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208-9) that the court in determining an application for provision under the FPA is required by ss 7 and 9 to carry out a two-stage process. The first stage requires a determination "whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life." The second stage, which arises if that determination be made in favour of the applicant, is "to decide what provision ought to be made out of the deceased's estate for the applicant." The determination of the first stage "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 correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of "moral duty" or "moral obligation", or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal has since determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham, 27 June 1996, Court of Appeal, NSW, unreported. Naturally I have approached the matter in accordance with these principles. I have also borne in mind, these claims all being claims of adult children of the testator, that I simply carry out the two-stage process in relation to those persons in the context of this family and this estate; the appellate Courts have negatived that there is any "special" test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573. The time at which adequacy or inadequacy is to be judged is the time at which the Court is determining whether or not to make an order. Section 12 of the FPA provides that where the Court makes an order for provision, it may specify the portions of the estate which shall bear the burden of the provision. The Family 3 The testator was born on 20 January 1910. She died on 3 June 1993. She was married once only, to Joseph Henry Webb ("Joseph Snr") on 17 April 1930. There were seven children of the marriage, as set out below. All of them are beneficiaries under her will and/or parties to these proceedings. The four youngest children are listed before the three eldest, because the former are the plaintiffs in the contested proceedings: (1) Brenda May Kitteridge, born 15 August 1940 ("Brenda"); (2) Barry Neil Webb, born 27 September 1945 ("Barry"); (3) Graham David Webb, born 13 June 1947 ("Graham"); and (4) Peter Allen Webb, born 19 February 1951 ("Peter"). (5) Joseph Henry Webb, born 23 September 1930 ("Joseph"); (6) John Robert Webb, born 23 October 1931 ("John"); (7) Barbara Linda Graham, born 15 February 1939 ("Barbara"); Apart from some inconsequential legacies, the other beneficiaries of the will are John's wife and the testator's grandchildren, as follows: John's wife (8) Colleen May Webb, born 1 March 1942 (Colleen); John's children (9) David Webb, born 6 February 1968 ("David"); (10) James Webb, born 20 October 1969 ("James"); Brenda's children (11) Robert Kitteridge, born 23 October 1962 ("Robert"); (12) Lee Kitteridge, born 12 March 1966 ("Lee"); (13) Steven Kitteridge, born 16 August 1976 ("Steven"); Barry's children (14) Michael Webb, born 5 February 1970 ("Michael"); (15) Stephen Webb, born 31 July 1971 ("Stephen"); (16) Brian Webb, born 28 October 1974 ("Brian"); (17) Jason Webb, born 31 July 1979 ("Jason"); Graham's children (18) Alexander Webb, born 20 March 1991 ("Alexander"); (19) Rachel Webb, born 24 February 1993 ("Rachel"). The others of the testator's children do not have children. The Facts 4 I now proceed to examine the facts in order to carry out the two-stage process in the four contested suits and to determine the application for approval of the settlement of the fifth. The bulk of the facts that I set out below are not or not seriously contested, or appear clearly from the evidence, save where indicated otherwise. The principal area in which there has been serious factual contest is the reasons for the undoubted breakdown of the relationship between the testator and the first four plaintiffs. There are disputes of less significance as to the degree of Graham's present capacity for work and the reasons for Barry's failure in business. 5 Joseph Snr was born about 1903. He was a rentier who during his lifetime accumulated a considerable portfolio of properties in Sydney. He conducted a retail shoe shop until 1953 but thereafter his only business was the administration and management of his properties. He involved most of his children at some time in that business. It was agreed on behalf of the defendants that he "conducted his affairs on the basis that all authority lay with him and that the others were to contribute according to their talents or his will." From about 1982 till shortly before his father's death, the child principally involved in the business was John. Joseph Snr made his last will on 27 September 1987. He died on 21 July 1989. Probate of that will was duly granted to the executors and trustees named therein, Burns Philp Trustee Company Limited and Richard Stephen Vale, solicitor. His estate was sworn at almost $8,500,000, but the amount finally distributed to the beneficiaries was about $5,300,000. This was due in part to a decline in real estate prices between the grant of probate and the realisation of the assets and in part to various expenses. The will, in broad terms, gave a legacy of $25,000 to each of the seven children and the residue of the estate to his trustees to pay the income to the testator for her life and after her death to divide the residue equally among the seven children. The estate was the subject of proceedings under the FPA. These were settled, and the estate was rearranged by an order of this Court made by consent on 25 June 1990, under which the testator received a gift of $1,558,750 and the residue after payment of costs was divided equally among the seven children. There were detailed provisions as to how these gifts were to be satisfied, eg, by the transfer of specific assets. 6 By the will, made after that settlement, the testator appointed John, Joseph and Colleen her executors and trustees. After small monetary legacies to relatives other than children and grandchildren and gifts of personal chattels and omitting gifts of shares which have become irrelevant, she gave the residue of her estate equally among the survivors of Joseph, John, Colleen and Barbara and of her grandchildren who survived her and attained majority. When I say that the gifts of shares have become irrelevant, the situation is that the company involved, Olga Investments Pty Limited, has been wound up since the testator's death and that portion of the estate administered by payment of the proceeds of those shares to the beneficiaries; those amounts are included in the current assets of the recipients set out below, but were so relatively small as to have no effect on what follows. The will thus totally excluded Brenda, Barry, Graham and Peter, who are the plaintiffs in the proceedings that have been tried. The estate has been converted to cash and the available funds are about $1,750,000. In the events which have happened, the effect of the will is to divide this fund into 15 equal shares, the recipients of which are Joseph, John, Barbara, Colleen and the 11 grandchildren. 7 The testator's disinheritance of her four youngest children did not go unexplained. In the chambers of counsel in July 1991 she gave instructions for the preparation of a statement explaining her will and, after being settled, it was signed by her on 23 September 1991. The signed statement ("the statement") was tendered under s 32 of the FPA, which makes admissible (inter alia) relevant statements by a testator contained in a document. No objection was taken to any part of the statement, and the whole of it was admitted into evidence, along with a draft, and the notes taken by counsel during the conference. The statement sets out ways in which the testator believed that her three eldest children and Colleen had been supportive of her and recounts at some length conduct of her four youngest children of which she complains; the nub of her explanation of the provisions of the will is contained in the following paragraphs: "4 I remade my will after the conclusion of proceedings brought under the Family Provision Act in respect of my late husband's estate by my children, Brenda, Barry, Graham and Peter. 5 I have made no provision in my will for those children. I consider that adequate provision has already been made for them out of my late husband's estate. 6 Throughout the period from my husband's death to the conclusion of the proceedings in respect of his estate and since then also, those children have showed me no consideration. After my husband's funeral, each of them was invited back to the house but not one of them would come. The only contacts that I have had with them since then have been on the occasions that they complained of my husband's will and several of them have been very abusive towards me. They don't like me, they don't visit me or telephone me or contact me in any way. They don't even send me Christmas or birthday cards. 7 In proceedings brought by these four children after the Family Provision Act proceedings, Brenda gave evidence by affidavit on their behalf saying that I was made [sic] or incapable. I had to go to see Dr. Asprey and Dr. Jolly to show that I was mentally competent. …… 10 I have left my estate to be divided amongst my supportive children, Colleen and all of my grandchildren. Each of my grandchildren could do with something to give them a start in life. I do not trust their parents (other than John and Colleen) to administer the moneys for them." Under s 32(8) of the FPA regard is to be had, in estimating the weight to be attached to any statement admitted, all the circumstances from which any inference can be drawn as to its accuracy, including any relevant matter dealt with in the statement and any incentive for the deceased to misrepresent any matter. It is clear that the statement was created after familial relationships had substantially broken down and for the purpose of justifying the exclusion of four children from the will. It is largely in the testator's own language (see counsel's notes) and is emotive in tone. Equally, the evidence as to these matters given by the five children who gave evidence and by Colleen must be viewed in the light of the high emotions involved and the self interest of the deponents. 8 What is clear from the statement and that evidence is that there was a distancing or further distancing in relations between the testator and the four youngest children after Joseph Snr's death, and particularly in relation to the FPA proceedings taken in respect of his estate. As will appear below, it is also clear that there there had already substantial disruptions to the familial relationships between the parents and the children and among the siblings before the father's death. It is a sad but undoubted fact that the children came to be described, at least by the four youngest, as "the top three" and "the bottom four". What is much less clear is the cause or mechanism of this disruption. Days were taken up by evidence about these intra-familial relationships, both before and after the father's death. As already noted, there is serious .conflict as to these matters. Most relevantly, there is conflict between the testator's account in the statement (supported by some evidence of John and Colleen) that, after Joseph Snr's death, each of her four youngest children ignored and neglected her, and the evidence of each of "the bottom four" that overtures were made to the testator and rejected. The resolution of this conflict, so far as it needs to be resolved, will be dealt with below. The facts relating to the plaintiffs in the contested proceedings 9 I shall set out with respect to each of the plaintiffs in the contested proceedings a general history and the facts relating to the individual's financial and other needs and particular relationship with the testator. Brenda 10 Brenda was born on 15 August 1940 and is now 58. She left school in 1957 with the Leaving Certificate. She lived at home until married in 1959. She had three children, Robert (11), Lee (12) and Stephen (13). Only Stephen now lives with her. For some 13 years she worked in her father's business, until she and her husband moved to Gosford in 1978. She and her husband separated in 1989 and subsequently divorced. Her father then allowed her to live in one of his properties at McMahons Point. There was some talk of him advancing her $70,000 to help her buy a home, but this did not eventuate. Under the settlement of her father's estate, she vacated the house in McMahons Point, was excused any payment in respect of her past occupation of it and received a property at Greenwich. She sold that property in 1996 for $765,000. 11 Brenda claims to have had "a good and close relationship with [her] father." This seems to be borne out by the fact that in 1989, in the last four months of her father's life, he went and lived in her home, where she looked after him, and he appointed her to manage his business in place of John. In earlier life, she had a close relationship with her mother. She helped her mother about the house before she left home. Despite bad relations with John, she maintained close relations with her mother (although more distantly after her move to Gosford) until her separation from her husband in 1989. Thereafter, her evidence is that her mother "grew cold" and became "angry and bitter" towards her. She believes that this arose from her mother's view that Brenda should go back to her husband (although it is Brenda's evidence that her husband left her). It seems that the testator was hostile at Joseph Snr putting Brenda in charge of the family business in place of John. The hostility was undoubtedly redoubled by the FPA proceedings over Joseph Snr's estate; the statement bears that out. Brenda's account is that the testator increasingly kept her daughter away; all efforts "to make contact with her [mother] were refused". The testator's account is that there were no such efforts. Brenda has had a difficult relationship with John since her childhood. They have not spoken since she was 17. 12 She owns the house at 7 Charles Street, Castlecrag in which she lives. It is valued at $560,000. She bought it out of the proceeds of the Greenwich property mentioned above. It is unencumbered. She owns household effects valued at $2,500 and two motor vehicles together valued at $18,000. She has about $96,000 in a bank account. Her assets have a total value of $683,500. She has a tax debt of about $30,000 which is "currently coming up for payment". Her only income, in addition to a disability support pension of $147.40 per week, is interest on her bank account, which now amounts to less than $90 per week. Her weekly outgoings are about $297 per week. 13 She has multiple health problems which cause her significant incapacity. She is virtually an invalid. She can do only light housework. She is incapable of gainful employment. 14 On her behalf it is submitted that, because her outgoings exceed her income, she must resort to her capital to live, and this demonstrates a need for provision. The defendants contend that "there is nothing in the evidence to indicate that there should be any increase." It is conceded that "the size of her resources, her condition of health and the fact that she is arriving at the afternoon of her [life]" are "major considerations" which ought be taken into account. It is said, however, that "some aspects of her conduct conspicuously lack merit." Barry 15 Barry was born on 27 September 1945 and is now 53. He left school in 1961 without an Intermediate Certificate. He worked, generally in the family business between 1962 and 1980 and lived at home until he married in 1968. He has four children, Michael (14), Stephen (15), Brian (16) and Jason (17). When, in 1980, he finally left the family business it was, he said, because John "started to dictate how it was to be run". He then went into business on his own account, and later worked in a business conducted by his sons, Michael and Stephen. Those businesses were not successful. It will be necessary to say more below of the circumstances of their failure. 16 Barry claims to have had reasonably good relations with both parents up to his father's death. His father from time to time allowed him to live in one of his properties that was being renovated as part of his remuneration (which, it seems was probably at rates less than commercial). In 1988 his father lent him $120,000. Relations with his mother have certainly been disrupted since his father's death. In the settlement of his father's estate, he repaid the amount that his father had lent him together with a small amount of interest, and received a property in Darlinghurst. He sold that property in 1995 for $265,000. The money has gone in meeting debts and living expenses. His relationship with John has long been bad. They have not spoken for many years. 17 Barry now lives in Queensland, in rented accommodation, with his wife, Brian and Jason. He owns only a motor vehicle and some personal effects with a total value of $5,000. He has debts to at least four financial institutions amounting to $22,000. He has not worked for many years. The weekly household income consists of Barry's disability pension of $328, Brian's disability pension of $170, and Jason's unemployment benefits of $72, a total of $570 per week. The weekly outgoings are about $630 per week. 18 Barry's health is not good. His greatest health problem is angina. This is generally stable, but he has had one unstable incident, necessitating hospitalisation. He has hypertension, controlled by medication. He has chronic asthma and allergic rhinitis. He is obese and has sleep apnoea. He has a spondylosis, which causes back pain. He has some depression and anxiety. His wife is feared to have cancer. Brian is intellectually disabled, as appears below. 19 On Barry's behalf, it is contended that his financial position and that of his family, and their prospects, are desperate. The defendants in effect concede a need, but contend that, by reason of history, funds or property should not be put in Barry's personal control. Graham 20 Graham was born on 13 June 1947 and is now 51. He left school in 1962 with an Intermediate Certificate. Between 1963 and 1980, but for two short periods, he worked in his father's business. He has been married three times. He has separated from his third wife and they have been or are to be divorced. He has two children, Alexander (18) and Rachael (19). He took up work installing wardrobes in 1989. He was dismissed from that work in 1997. He lives alone in rented premises. 21 Graham says he kept in "close contact" with his father throughout his life. He did not receive a regular wage from his father until 1977. He says he left the family business in 1980 because he would not work with John. That year his father lent him $50,000, which he repaid over time. In the settlement of his father's estate he received the property at Cammeray which he still owns. He feels his mother "showed [him] no love" and that when he refused to work with John, she rejected him entirely. Certainly relations between them were disrupted after his father's death. He has no relationship with John. They have not spoken since about 1974. 22 A matrimonial property settlement has been effected with his third wife. He owns the property at 46 Collins Street, Cammeray, which is valued at $520,000. He owns a motor vehicle and personal effects valued at $3,500. He owes $42,000 secured on his property at Cammeray and has other debts totalling $1,000. His only income is rent of $430 per week from the Cammeray property, which is let. His weekly outgoings amount to $580 per week, including rent of $250 and maintenance payments of $50. 23 He has chronic asthma and repeated chest infections. He has palpitations and chest pain with physical exertion. He smokes heavily. He also has psychological disabilities. He has a longstanding depressive illness and consumes alcohol to excess. There are underlying psychological problems concerning which there was evidence which I made the subject of a non publication order. 24 On Graham's behalf, it is contended that a need is shown. The defendants on the one hand concede that he "is in a predicament, his wife is in a predicament which is partly of his making and his children are certainly in a predicament." On the other, they contend that "the extent of his true need is doubtful" and that if "any need is shown it must be very marginal." Peter 25 Peter was born on 19 February 1951 and is now 48. He left school in 1966 with the School Certificate. Between 1966 and 1972 he had various jobs, including gardening and lawnmowing for a municipal council. In 1972 he began a lawnmowing business. For the next ten years he worked in lawnmowing businesses or in his father's business. He finally left his father's business in 1982. He now has part time work cleaning and mowing lawns. He resides in shared rented accommodation. He lives very frugally. 26 He appears to have been close to his father during his lifetime. When he worked in his father's business he was paid a "regular wage" only from time to time. In 1988 his parents lent him $101,000 so that he could buy a home unit. He repaid this at the rate of $100 per week during his father's lifetime. His father also gave him assistance in buying motor vehicles and lawnmowing businesses. The arrangement between them was loose; Peter paid back what he could. In the settlement of his father's estate, he had to repay the money that had been lent to him to buy a unit. He says he received no credit for the amounts that he had already repaid, but he received the Darlinghurst properties mentioned below. He says that, but for a short period between 1980 and 1982, his relationship with his mother was close during his father's lifetime. But there is no doubt that it broke down after the death of his father. He has no relationship with John. They have not spoken since before the death of his father. 27 He owns two properties in Darlinghurst. Together they are valued at $800,000. He has a motor vehicle, lawnmowing equipment and personal effects valued at $3,400. He owes $32,000, which is secured on one of the Darlinghurst properties. He has tax and other obligations which amount to over $20,000. He has an income of about $746 per week, derived partly from the rent of the Darlinghurst properties and partly from his part time work. His weekly outgoings (including expenses of the Darlinghurst properties) amount to about $747. 28 He suffers from grand mal epilepsy, the control of which is not entirely certain. He has been a heavy drinker. He became addicted to heroin and has been for some years in a methadone programme.. His drinking and heroin addiction appear both to be controlled. He is, for all practical purposes, unfit for more work than he is doing. 29 He would like to liquidate his debts and have a house of his own to live in. The defendants contend that "it is very difficult to conceive of any situation where he really requires more" and that "if any order is made then payment off his current debt is all that is indicated." He was stringently cross examined to suggest that it was most unreasonable of him to leave his substance invested in real estate when, with the aid of an investment adviser, the capital could earn a higher income in different forms of investment. The facts relating to "eligible persons" other than the first four plaintiffs 30 The eligible persons, other than the plaintiffs in the contested proceedings, are the testator's remaining children, Joseph, John and Barbara. I shall set out the facts relating to them in generally the same way as has been done in relation to the plaintiffs in the contested proceedings. It has not been suggested that Colleen or any of the grandchildren is an "eligible person" by reason of paragraph (c) or (d) of the definition contained in s 6(1) of the FPA. Joseph 31 Joseph was born on 23 September 1930 and is now 68. He left school in Third Year without an Intermediate Certificate. He is of limited intellectual ability and was not a good learner. He has never married despite a desire to do so. He has led a solitary life. For many years he worked away from Sydney, in places including Melbourne and London, and lived in boarding houses. During the last years of his mother's life, he returned to Sydney and lived with her at her house in Olga Road, Chatswood. He continued to live alone in that large house after her death, until it was sold to liquidate the estate. He has had a casual job attending to the grounds at Hunters Hill High School, although it now seems unlikely that he will continue to work. From his father's estate he received the wherewithal to purchase the property he owns. 32 Subject to his absences from Sydney and his rather solitary nature, he appears to have had a good relationship with his father. It is clear, from the fact of his residence with her as stated above and other evidence, that he had a close relationship with his mother, particularly in the latter years of her life. He owns two semi detached properties at 538-540 Willoughby Road Willoughby valued at $580,000 and a house property at 90 Coward Street Mascot valued at $300,000. He lives in 538 Willoughby Road. He would receive under the terms of the will 1/15th of the testator's residuary estate, which is about $115,000. He has income from the lettings of the other two properties of about $480 per week gross. He has had a small income from his casual work. His affairs are managed by John and Colleen, but the time will probably come when a manager of his estate will need to be appointed. His health is generally good for his age, although he may need a knee operation in the near future. John 33 John was born on 23 October 1931 and is now 67. He was educated as a boarder at Killara Preparatory School and Barker College, but left at the end of Second Year at his father's instance. After a year in other employment he went to work for his father, at first in the shoe store and then in relation to the properties. He had a break from 1959 to 1962. He married Colleen in 1963. She also over the years assisted in his father's business. He left again in 1969, when he concedes there was friction between him and his brothers. He started his own business, but participated intermittently in his father's business between 1969 and 1981. But the most significant period of his involvement was between 1982 and 1989, during his father's declining years. Broadly, he was in charge. He retained a right to maintain his own business and received management fees or a "joint wage" for his and Colleen's work in his father's business, and his sons' school fees were paid 34 He clearly had a close relationship with his father, although his father's replacement, in the last months of his life, of John by Brenda in the management of the business seems to show some reservation on his father's part. He and Colleen were clearly close to the testator. They jointly own two properties, their home in Forestville, which is valued at $320,000, and a commercial property at North Sydney which is valued at $300,000. They have a joint account in the sum of about $143,000. They own trading stock valued at $8,000. They own a motor vehicle and personal effects valued at $32,500. Their assets amount to $803,500. All are unencumbered. They have credit card obligations in the amount of $7,000. They still conduct and earn some income from their business. Each would receive a 1/15th share under the terms of the will. He has had a pacemaker inserted, but his health is generally good, as is Colleen's. Barbara 35 Barbara was born on 14 February 1939 and is now 60. It is clear that she is schizophrenic and was hospitalised for that condition during the 1960s. The schizophrenia is said to be in remission, but she still receives regular psychiatric supervision and takes anti-psychotic medication. She is not of high intelligence and is naïve. She has from time to time during her life had various fairly menial jobs, and of late years has worked in a sheltered workshop. She has married and divorced and subsequently lived in a de facto relationship, but is not at present in any relationship. Up until March 1998 her financial affairs were managed by John and Colleen. On 25 March 1998 the Guardianship Tribunal made an order that she was a person incapable of managing her own affairs and appointed the Protective Commissioner to manage her affairs under the Protected Estates Act 1983. It also made a partial guardianship order in relation to her and appointed the Public Guardian her guardian for the purposes of that order. The proceedings in the Guardianship Tribunal were initiated by Brenda. Whether or not this was mischievous, as alleged by the defendants, matters not for the purposes of these proceedings. It is plain on the available evidence that the Guardianship Tribunal's orders were justified. 36 She appears to have had good relations with her parents, allowing for her psychiatric incapacity. That her relationship with her mother was reasonably good is attested by the fact that she was one of the children provided for by the testator in her will. She lives in a rented Housing Commission flat, although she pays full rent for it by reason of her income. She owns a property at 7 Olympia Road Naremburn valued at $600,000, which is rented. The gross rental is about $480 per week. Her net income is stated by John to be $288 per week. Her tax returns show an interest deduction in respect of the rented property of some $7,000 per annum, which suggests a borrowing against the property in the order of $100,000. She would receive under the terms of the will a 1/15th share. The settlement of her FPA claim, if approved, will provide a further fund of $100,000 vested in trustees for her benefit. That sum was arrived at on the assumption that she would retain her 1/15th share of the residuary estate. The facts relating to the beneficiaries who are not "eligible persons" 37 These persons are (8) - (19), Colleen and the testator's grandchildren. Colleen's financial affairs are intertwined with John's and are as set out above in relation to him. It is plain that, whatever be the rights and wrongs of the absence of various of her children from this role, Colleen was close to the testator and afforded her care and support during her declining years, for which the testator was grateful. The grandchildren are all adult except Graham's infant children, Alexander (18) who is 8, and Rachel (19) who is 6. Except as noted below, they appear to be ordinary people of varying ages making their different ways through life in a relatively ordinary way. No doubt they have various problems, as do most people, but I do not regard them as having any specific disability. Those who may be regarded as having specific disabilities are children of Barry. Brian (16) has some degree of mental retardation. Psychological and other evidence shows him to be "intellectually mentally deficient", to have limited employment prospects and to be incapable of managing his own affairs. This is a real disability. There seemed to be some suggestion that Jason (17), as well as Brian, is under some mental incapacity or unable to manage his affairs, but a psychologist's report shows that, whilst he is of low average intelligence and limited literacy and numeracy, his practical skills are quite good, and he is a an ordinary and quite sound young man. The disability of Stephen (15) is financial. He was adjudged bankrupt in 1995 as a result of the business conducted by him with his father. He is still bankrupt, but may be discharged in 2000. He has grand mal epilepsy, but this is controlled, and I do not regard it as a substantial disability. Facts in issue 38 As noted above, the principal factual contests in the proceedings were as follows: (1) The main contest was, in general terms, between the testator's assertion in the statement that her four youngest children had rejected her and their counter assertion that she had rejected them. Behind this issue lay conflict as to the origin of the family dysfunction and, in particular, the degree to which it was a result of partiality by Joseph Snr and the testator towards some part of their family, particularly John and Colleen. (2) The degree of Graham's capacity or incapacity to earn an income, said to be relevant to the degree of his need. (3) The degree of Barry's incapacity to manage his affairs, said to be evidenced largely by his business failures, although there is other material. The fact is that he has lost his financial substance and is now without assets. His alleged incapacity was said to be relevant not so much to the question of his need, which was conceded or virtually conceded, but as to whether any provision for him should take the form of moneys subjected to a protective trust. 39 Turning to Question 1, as to the "rejection" of the testator and the origins of the family dysfunction generally, this goes to the consideration of the conduct of the plaintiffs, and whether it should have any impact on the making of provision for them, if need be established. Under the Testators Family Maintenance and Guardianship of Infants Act 1916 now repealed (the TFM Act) there was specific provision of a defence of conduct disentitling, as there is in most other States. That provision has not been repeated in the FPA. Instead, the FPA refers to conduct before and after the testator's death as a factor to be taken into consideration by the Court in determining whether relief ought be granted. The defendants' submission, so far as I could understand it, was that the conduct of some of the plaintiffs at least was such that it should weigh in the balance against making provision in their favour. 40 There are two preliminary things to be said. The first is that there is real difficulty in coming to any concluded view as to the rights and wrongs of old family hurts. The second is that a firm conclusion about those matters would really be of only marginal significance in this case. These conflicts concern facts extending over many years, indeed decades. It is necessary to bear in mind, as Dixon CJ said in The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20, "that one story is good until another is told, but a testator is dead and cannot tell his." Although the circumstances in which the testator's words may be received in evidence have been widened since that time, and some version of the testator's account of events is in evidence in the statement, this disadvantage remains significant. In Massingham v Massingham supra Priestley JA said: "In arriving at his opinions, the Master did not attempt to adjudicate upon the rights and wrongs of the disputes within the family leading up to the estrangement … There would have been little point in his attempting to do so. The father and the mother were both dead. The events were very old. The brothers' views about one another and the past were fixed, strongly held, and would undoubtedly make it difficult for a judicial fact finder to be confident in whatever conclusions were reached on their competing versions." And see also per Priestley JA in Hunter v Hunter supra at 582-3. In Massingham the parties by agreement did not cross examine each other's witnesses and "were in substantial agreement about the broad aspects of the history." In this case, extensivecross examination did occur, but the broad history of the relationships is not really disputed or is clear. 41 In light of the above, I do not think it appropriate or useful to make more than the following findings of fact in relation to the matters of family history. The dysfunction in the family was old. It went back before Joseph Snr's death. Tensions were created by the way in which he employed various children in his business. The work they were given was usually fairly menial. It was not well remunerated. Joseph Snr was reluctant to spend money, as witnessed by the low standard of maintenance of his properties. The menial nature of the work offered was partly but not entirely governed by the limited ability of some of the children. Greater ability was displayed by John, and he came to play a more managerial role in the business. In his father's declining years after 1981, he in effect assumed control of the business. Over the years, all his siblings departed from participation in the business. To some degree, this was motivated by a desire for independence. But there was also friction with John. He himself says so. Relations between John and his siblings appear to have been difficult from a young age. Each of the "bottom four" at some stage appears to have had a definitive break in relations with John. There was probably some jealousy. The friction and jealousy arose in part from a perception that there was favouritism on the part, perhaps of Joseph Snr, and certainly of the testator, towards John and Colleen. The evidence shows that this perception, particularly in relation to the testator, is general and long standing. It is has been expressed otherwise than in direct evidence in the present proceedings (eg, in histories given by various people to medical advisers). It is hard to think that there was not some substance to it. The testator certainly displayed partiality to John and Colleen in the statement. It is patent that there was a clearer breach after Joseph Snr's death. An important factor in this was the bringing of FPA proceedings by some of the children in relation to his estate. This, it is clear, the testator bitterly resented. That the proceedings by the children were not unreasonable is suggested by the rearrangement of the estate that occurred in the settlement of the proceedings. The precise events and rights and wrongs involved in the final breach between the testator and each of her four youngest children, and whether or not there were attempts at reconciliation, and whether or not those attempts were rejected do not matter. In the context of this family, even if that conduct were as described by the testator in the statement, I do not think it would affect the situation. And I certainly do not find that matters were as one sided as that. The breakdown was the result of a long, unhappy history. In my view there is not established any conduct on the part of any of the plaintiffs which should preclude or affect the relief which ought otherwise be granted, if need be established. 42 The evidence that I have found most perceptive and realistic concerning the dynamics of the breakdown of the family relationships came, interestingly, from some of the children with considerable personal problems. Peter is not highly articulate, and gave his evidence at times haltingly. But he seemed to display some detachment, and insight into what had occurred. He gave the following answers: "Q. When did you begin to notice two camps starting to form in the family? A. Back, oh, not till I was about 25. I would have been about 25 I think … no, no well I suppose there would have been originally, originally when I was only about, about 20, 21 because I think my sister, Brenda, had a fall out with him and then over the years there seemed to be another brother so many years later and then so many years later there was another brother and then I was the last one ….

Webb v Webb; Estate of W E Webb

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Cases Cited (5)

Cited By (2)