Wheatley v Wheatley [2005] NSWSC 785 | Case summary

5145/03 JOHN CHRISTOPHER WHEATLEY -v- ROBIN JUDITH WHEATLEY JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 3 October 2003 the Plaintiff, John Christopher Wheatley, claims an order for provision for his maintenance and advancement in life out of the estate and/notional estate of his late mother, Beverley Denise Wheatley, also known as Beverley Mabel Wheatley (to whom I shall refer as "the Deceased"). 3 The Deceased died on 10 October 2002, aged about 81. Probate of her will dated 1 October 1994 was on 20 December 2002 granted to Robin Judith Wheatley, the executor named in such will (who is the Defendant to the present proceedings). By that will the Deceased left the entirety of her estate to the Defendant. 4 The chief asset in the estate of the Deceased was a house property situate at and known as 6 Alma Street, Clontarf ("the Alma Street property") to which a value of $1,200,000 was ascribed in the inventory of property. That house property was in January 2004 valued at $1,400,000. The other assets in the estate, apart from a loan of $50,000 owing by the Defendant to the Deceased, total about $12,500. The liabilities of the Deceased total somewhat over $8,000. The Alma Street property and the other assets have been transferred into the name of the Defendant. 5 It will be appreciated that in calculating the value of the estate available for distribution (or which may be the subject of an order for provision), the costs of the present proceedings must be taken into consideration, 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 have her costs out of the estate, irrespective of the outcome of the proceedings. The Plaintiff's costs are estimated to total about $64,000, whilst those of the Defendant are estimated to total about $29,000 to $30,000. 6 The Plaintiff and the Defendant are the only children of the Deceased, who was married only once, to the late John Leslie Wheatley. (The fact that the Defendant was adopted does not affect her status as a child of her adoptive parents.) 7 The Plaintiff was born on 28 February 1948, and is presently aged 57. Although he has never married, the Plaintiff has two children, being daughters (born of separate relationships), Charlotte (who was born on 10 January 1987 and is presently aged eighteen) and Jovi (who was born on 15 August 1990 and is presently aged almost fifteen). Each of those children lives with her mother. The Plaintiff pays child support for Jovi and from time to time provides to both children such support as he is able. 8 The Plaintiff resided with his parents and his sister at the family home at 6 Alma Street, Clontarf until the death of his father, who died unexpectedly at the age of 42 on 26 February 1963. Thereupon the Deceased and her children (who were at that time aged almost 15 and 8) removed to the residence of the Deceased's mother, Mabel Maude Oakey at Sans Souci, where they resided for several years. The Deceased (upon whom, apparently, the Alma Street residence devolved upon the death of her husband) thereupon rented out the Alma Street residence. 9 The Plaintiff left school at the end of 1963 and commenced employment. He studied accountancy part-time and ultimately gained a TAFE Certificate in Commerce in 1971, and became a Member of the Institute of Affiliated Accountants in 1973. From the time when he left school the Plaintiff was in employment until 1987, when he gave up work consequent upon suffering a heart attack. He has not worked since that time. From 1988 until 1992 the Plaintiff was in receipt of sickness benefits. Since 1992 he has been in receipt of a disability support pension. 10 In December 1971 Mrs Oakey, the Plaintiff's grandmother, sold the Sans Souci residence. She, the Deceased, the Plaintiff and the Defendant thereupon moved back to the Alma Street residence. In June of the following year Mrs Oakey purchased a residence at 22 Vista Avenue, Balgowlah Heights, where she resided for the next twelve years, until she entered a nursing home in 1984. 11 After an altercation (to use a somewhat neutral term) between himself and the Deceased, the Plaintiff in August 1972 departed the Alma Street house and moved into residence with his grandmother at the Balgowlah Heights property. He remained in residence in that property until Mrs Oakey went into the nursing home in 1984. 12 The Plaintiff had in the meantime purchased, for $62,000, in March 1982 a home unit situate at and known as 7/41 Gottenham Street, Glebe. He lived in that home unit for three months before returning to reside with his grandmother in the Balgowlah Heights property throughout the next two years. He then returned to the Gottenham Street home unit, where he has continued to reside to the present time. 13 In July 1982 Mrs Oakey executed a power of attorney in favour of the Deceased. In the exercise of that power of attorney, after Mrs Oakey had entered into residence in the nursing home, the Deceased sold the Balgowlah Heights property, and required the Plaintiff to vacate that property (expressing that requirement through the medium of a letter from her solicitor addressed to the Plaintiff). 14 A very considerable quantity of evidence, both by way of affidavit evidence and oral evidence under cross-examination, given by the Plaintiff and by the Defendant, was directed to the matter of the disbursement of the proceeds of sale of the Balgowlah Heights property. It was not in dispute that part of the proceeds of sale, being in an amount of almost $40,000, was used to discharge the mortgage to which the Plaintiff's home unit at Glebe was at that time subject. There was considerable dispute, however, as to the entitlement of the Plaintiff to use part of the proceeds of sale of his grandmother's residence for that purpose, and as to whether either the Plaintiff's grandmother or the Deceased herself either had known of or had approved of the use of those funds for that purpose. 15 At the present time the Plaintiff's principal asset is the home unit at 7/41 Gottenham Street, Glebe (to which a value of about $300,000 was ascribed). In his affidavit evidence he stated that he had an investment account with the Commonwealth Bank in an amount of about $9,400, and a term deposit in an amount of about $5,660. However, under cross-examination the Plaintiff said that the total of the moneys held in those two bank accounts was, variously, $9,000 or $10,000. The only other asset of the Plaintiff, apart from personal effects and household furniture and furnishings, is a 1970 Mercedes Benz sedan motor car, which is unregistered and stated by the Plaintiff to be unroadworthy (to which an estimated value of $1,000 was ascribed). 16 The Plaintiff's only stated income is the disability support pension, in an amount of $440.30 a fortnight. After child support is deducted therefrom, and an allowance made for pharmaceuticals, the Plaintiff said that he receives a net amount of $436 a fortnight. He estimates his outgoings to total $215 a week. That is, for all practical purposes, his income is entirely expended in his outgoings and normal living expenses. (I would here observe, however, that, although not the subject of evidence, it would be expected that the Plaintiff would receive some small additional income from the foregoing investment account and from the foregoing term deposit). 17 The Plaintiff gave evidence of the condition of his residence, which is in need of considerable renovation and refurbishment. Photographs showed the degree of dereliction into which the residence had fallen, and its state of decay and disrepair. 18 The Plaintiff is in need of extensive dental treatment, for which the estimated cost is about $40,000. 19 It would appear that the Plaintiff has been seen (or, possibly, treated) by a considerable number of medical practitioners. However, the evidence of only two such medical practitioners was placed before the Court. Dr. Barry Blicharski, consultant psychiatrist, expressed his diagnosis that the Plaintiff's history suggests the possibility of chronic fatigue syndrome following a viral illness in about 1993, and that the symptoms described during the five years preceding his seeing the Plaintiff "fit a diagnosis of generalised anxiety disorder". Dr. Blicharski assessed the Plaintiff's current capability of work, either part-time or full-time, as being nil. He offered the prognosis that the Plaintiff's symptoms are likely to continue at the present level on an ongoing basis. 20 Professor Andrew Lloyd, consultant infectious diseases physician, at the Prince of Wales Hospital, stated his belief that the principal diagnoses are clearly that of ischaemic heart disease, which is present in a disabling degree, and generalised anxiety disorder. He said that both these conditions specifically preclude the plausibility of a diagnosis of chronic fatigue syndrome. He said that the prognosis is poor, and that the Plaintiff's likelihood of return to functional status is essentially nil, and that he would need a combination of ongoing specialist medical care as well as specialist psychiatric care. 21 It was the evidence of the Plaintiff that essentially he was housebound, spending much of his time in bed, that he relied on occasion upon Meals on Wheels for food, that a friend did shopping for him (for which service he paid). Nevertheless, the Plaintiff said that he had travelled on foot from Glebe to the Court for the hearing of the present proceedings. 22 The Plaintiff had not seen the Deceased during the last thirteen years of her life, although he insisted that they maintained frequent and regular, and amicable, telephonic communication throughout that period. 23 Evidence was given by the Defendant concerning her financial and material circumstances. 24 The Defendant (who was born on 28 May 1955, and who is presently aged 50) had been employed at Coles from 1971 to 1979. She was apparently unemployed until 1987, when she worked for Lifeline for six months. In that year she became her mother's full-time carer. The Defendant commenced to receive a carer's pension in 1994. 25 The Defendant re-entered the workforce after her mother's death. From May 2003 the Defendant was employed as a shop assistant with W.C. Penfold, receiving a gross salary of $400 a week. However, that position came to an end in March 2004, when her employer was placed under administration. At the termination of that employment the Defendant was owed $1,600 by way of salary and annual leave. She was uncertain whether she would ever receive that amount. The Defendant has not been in employment since that time. It would appear that during the periods whilst she was not in employment the Defendant was in receipt of some form of unemployment or social security payments. 26 Apart from the assets which she has received under the terms of the will of the Deceased, the Defendant's only other assets are two bank accounts with the Commonwealth Bank, having credit balances totalling about $1,600. It was the evidence of the Defendant that the entirety of her income was expended on personal living expenses or expenses associated with the upkeep and maintenance of the Alma Street property, including municipal rates, insurance and electricity. The Defendant estimated that her weekly outgoings totalled about $502. 27 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 28 I have had the benefit of receiving a chronology and a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

29 The Plaintiff as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. The only other eligible person in relation to the Deceased is the Defendant. 30 It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to place before the Court as fully and as frankly as possible not only all available information concerning the applicant's financial and material circumstances, but also all information relevant to the claim of the applicant. 31 In the instant case the Deceased, in her will, in a letter addressed to her solicitor, Mr. David Carson, and in a written statement accompanying her will, set forth expressly the reasons why she had excluded the Plaintiff from any benefit from her estate. Those statements are admissible under section 32 of the Family Provision Act. 32 The Plaintiff did not address any of those matters in either the first or the second of the three affidavits which he swore in the present proceedings. Indeed, even the third affidavit addressed only the matter of the Plaintiff using part of the proceeds of sale of his grandmother's Balgowlah Heights property for the purpose of discharging the mortgage over the Plaintiff's Glebe home unit. It was essentially left to Counsel for the Defendant to elicit from the Plaintiff under cross-examination any explanations which he might have or any responses which he might wish to give concerning the allegations of the Deceased relating to the Plaintiff and his conduct. 33 The will of the Deceased contains the following, 3. I HAVE MADE NO PROVISION in my Will for my son JOHN CHRISTOPHER WHEATLEY as I consider that he is not entitled to any provision out of my estate by reason of his conduct and actions towards me which I have detailed in writing at the time of signing this my Will. 4. I AM ALSO MINDFUL OF the action of the said JOHN CHRISTOPHER WHEATLEY in appropriating the sum of approximately Forty Thousand Dollars ($40,000.00) of money belonging to my late mother MABEL MAUD OAKEY in her lifetime without her knowledge or approval resulted in a reduction in the estate of my late mother of which I was sole beneficiary. 34 The letter addressed to Mr. Carson, enclosing the Plaintiff's will, is dated 23 November 1994. It contains the following, Enclosed please find Will (for safe keeping) and copy of my Declaration of my disinheritance of John. Also copy of my Medical History from Professor Pollard to my Dr, Ryan; for proof. Must apologise for the delay; but unfortunately this year has been so stressful for me with John's affairs and bad neighbours (this has been resolved). John had a taxi truck yesterday (Wednesday) after my asking Janet to speak to him last Friday. 35 The document (referred to by the Plaintiff in her letter to Mr. Carson as "my Declaration") is dated 13 November 1994. It is in the following terms, I wish to disinherit my son John Christopher Wheatley because of his disrespectful volatile, physical and vocal abuse of both my daughter Robin and myself; i.e. pulling the phone cord out of the wall whilst whilst [ sic ] I was having a conversation - to gain attention (at 17 years old). Once when I had a broken right arm, pushing me over in temper. Calling me foul names such as "old tart, mongrel dog and bloody bastard" (I was in my 40's.) The vilifications were so stressful & distressing I was forced to ask the help of my Solicitor DAVID CARSON to make him go to live with his Grandmother (he was 22 years of age at that time) He also put his Mercedes car in my garage after putting my car out on the lawn - saying his was valuable, mine was only a Mini Minor. He never forgave me, telling everyone "kicked me out because I never wanted him". He has a sadistic streak in him, I have noticed. i.e. When he was told of his father's sudden death by relatives; he came upstairs and said to me when I was in shock - "I thought it was you, I WISH IT HAD BEEN YOU". He always denied it, and I have proven he is an unmitigated LIAR and selfish; thinking of himself & what he would miss! David Carson has paper to prove that he tried to take over all his Grandmother's money when she was in a nursing home and sold her house. I was the Power of Attorney - but he took the cheque up to the bank & put it all in his Name in an investment and paid off $40,000 owing on his Unit. I was ill at the time and trusted him. Re the $40,000. John has said to me "ROBIN WILL FIND IT HARD WHEN YOU DIE AND I TAKE OVER!" THIS MUST NEVER HAPPEN. As John would bring one of his Asian girlfriends (often teenage illegal) and their babies (he has had about 4 different ones which he has never kept.) He would make an absolute servant of Robin and she would have no say whatsoever - when she owns practically everything in the house. When John was 44 he had a coronary. After going to St. Vincent's Hospital in February - in heatwave conditions - everyday (at that time I had this Muscle Disease but did not know what it was) - we brought John home for a few days. He wanted us to give him a party for his friends. I was very tired - and Robin after cooking special food for Heart patients - (the recipe book we had obtained from the Hospital) saying we were too tired in the heat, sorry! He abused us and punched Robin twice in the back of the neck (was sore for a week)! We ran into my bedroom and locked the door, as we were afraid of him. He kept kicking at the door every time he passed it in between going down to the phone and ringing up his friends to pick him up. He said after "it was the drugs that made him do it!" When we moved back to the house (after 7 years of letting it furnished ) it was in shambles, everything worn and shabby - carpets threadbare. John said; "this house is as much mine as yours because it was my Father's". He insisted on eating his meals at the head of the dining room table and treated me as servant. He took over and did absolutely nothing . When asked to help would say "do it yourself"! We had a good lawn mower in the garage but I had to employ a mower man and to do odd jobs. This was prior to my having to put him out. He was 22 at the time. Apart from that John has no rights to this House as he has done absolutely nothing either physically or monetarily! - in the ensuing years. On the contrary, Robin has done everything, later with the help of my late fiancé. When Robin began working, she gave me generous board, and began replacing the damaged items at her own expense. i.e. washing machine, fridge, carpets. And this has gone on until now! A few years ago I contacted [ sic ] a muscle disease which makes me very frail on my legs and arms. She has had to take over the heavy chores - housework, laundry, gardening shopping etc. This week the Dr. (Ryan) as helped claim a CARER'S ALLOWANCE as Robin is unemployed. In all this John has never offered to help. 36 The medical report from Associate Professor J. D. Pollard, neurologist, of the University of Sydney, dated 20 August 1993 refers to the Deceased suffering from inclusion body myositis and the presence of a myopathic disorder. 37 The Plaintiff was cross-examined concerning the statements made by the Deceased in her will and in the foregoing declaration setting forth the reasons why she had excluded the Plaintiff from any benefit from her estate. The Plaintiff essentially denied the truth of those statements by the Deceased, and said that his mother was lying when she referred in her will to the Plaintiff's "disrespectful, volatile, physical and vocal abuse of both my daughter Robin and myself". 38 It is not necessary that I should separately deal with each assertion which was made by the Deceased in her will and in the accompanying declaration, and which is denied by the Plaintiff. It should, however, be appreciated that testators are only human. The fact that a statement is made by a testator does not mean that the Court must necessarily accept without question that statement as being true and accurate, especially as the testator cannot be cross-examined concerning the statement. 39 Nevertheless, I regarded the Plaintiff as a most unsatisfactory witness, whose evidence (at times inconsistent - for example, concerning his shopping arrangements) I considered unreliable. I prefer the statements made by the Deceased to the denials offered by the Plaintiff. 40 It was abundantly obvious that, had the Plaintiff so wished, he could have seen his mother after 1989; but that he chose not to do so. I do not accept the evidence of the Plaintiff that throughout the last thirteen years of the Deceased's lifetime he maintained a regular, frequent and amicable telephonic relationship with his mother. 41 The Defendant relies upon the foregoing facts and matters as constituting what was (in relation to the Testator's Family Maintenance and Guardianship of Infants Act 1916, being the statutory predecessor of the Family Provision Act) formerly known as conduct disentitling, and submits that, in the light of such conduct, the Plaintiff should be denied the benefit of any order for provision out of the estate of his mother. 42 In carrying out 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 the Court must first establish whether the Plaintiff has in consequence of the terms of the will of the Deceased been left without adequate provision for his proper maintenance. 43 It is apparent that the Plaintiff, for whatever reason, leads a frugal and modest lifestyle. His income is totally expended upon his household outgoings and expenses. His residence is in considerable need of upgrading and renovation. The Plaintiff himself requires extensive dental treatment. 44 I am satisfied that the Plaintiff has been left without adequate provision for his proper maintenance. 45 In proceeding to the second stage in the foregoing two-stage process, and in considering what, if any, order for provision should be made in favour of the Plaintiff, the conduct of the Plaintiff to which I have already referred, outlined by the Deceased herself in the terms of her will and in her declaration accompanying her will, must be taken into consideration. The character and conduct of an applicant are among the matters expressly referred to in section 9(3) of the Act which the Court may take into consideration in the exercise of its discretion in determining what provision (if any) ought to be made in favour of the applicant. 46 It should be emphasised that an order for provision is not made as a reward for services or 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. The relationship between an applicant and a testator is, of course, relevant to the exercise of the Court's discretion to make an order for provision in favour of the applicant. 47 In considering the nature of any order for provision the Court must take into account the competing claim of the Defendant upon the bounty of the Deceased. The Defendant was the chosen object of the testamentary beneficence of the Deceased. She does not have to prove anything. Nevertheless, it is obvious that if any order for provision is made in favour of the Plaintiff it is almost inevitable that the Alma Street property must be sold, unless the Defendant is able to meet such an order from her own resources. Indeed, any costs order in favour of the Plaintiff would probably have the same result, since there are no other assets available to meet any order for provision or any order for costs. 48 It is quite apparent that, not only does the Defendant have a claim upon the testamentary bounty of the Deceased, but that the Deceased herself recognised the extent of that the claim. The Defendant was a loving and dutiful daughter, who became her mother's full-time carer during the declining years of the Deceased. 49 I am not unmindful of the conduct of the Plaintiff towards the Deceased. However, much of the conduct complained of occurred more than thirty years ago when the Plaintiff was aged only in his early twenties. The Plaintiff had not resided with his mother during the thirty years preceding her death. Essentially, the conduct complained of by the Defendant in the later years of the Deceased's lifetime was the absence of any effective contact by the Plaintiff with the Deceased. I have already expressed my view that I do not accept the evidence of the Plaintiff concerning the extent of his telephonic contact with his mother during the last thirteen years of her life, and my conclusion that there is no doubt that the Plaintiff, had he wanted to do so, could have visited his mother during that period. 50 The other significant matter of complaint on the part of the Deceased (and also on the part of the Defendant) related to the asserted misappropriation by the Plaintiff of almost $40,000 from the proceeds of sale of his grandmother's residence at Balgowlah Heights. It will be appreciated that the Court does not have benefit of evidence from Mrs. Oakey herself concerning this matter. The complaint of the Deceased was, essentially, that her mother's estate, which passed to the Deceased (apart from a legacy of $20,000 to each of the Plaintiff and the Defendant) was, on account of the Plaintiff's conduct in this regard, depleted by an amount of almost $40,000, and that, in consequence, the Deceased herself was deprived of the benefit of that sum. 51 Nevertheless, no claim was ever made by the Deceased during her lifetime, or by the Defendant in her executorial capacity after the death of the Deceased, to recover that sum from the Plaintiff. The inventory of property does not disclose this amount of almost $40,000 as being an asset in the estate of the Deceased. Further, it will be appreciated that the money which was the subject of the Deceased's complaint belonged, not to the Deceased, but to her mother, Mrs. Oakey, and was Mrs Oakey's to do with it what she chose. Had Mrs. Oakey chosen to expend $40,000 (or any other amount) during her lifetime, be it upon the Plaintiff, or for any other purpose, the benefit which the Deceased would have received from Mrs. Oakey's estate would have been thereby diminished, and the Deceased would have had no cause for complaint on that account.

Wheatley v Wheatley

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Judgment (17 paragraphs)

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