Wilson v Public Trustee [2006] NSWSC 32 | Case summary

5467/04 EDITH WILSON -V- PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 7 October 2004 Edith Wilson claims an order for provision out of the estate of the late Clifford Wilson (to whom I shall refer as "the Deceased"), who died on 7 April 2004, aged 79. 3 The Plaintiff (who was born on 28 August 1927, and who is presently aged 78) married the Deceased on 12 July 1952. They separated in February 1962. According to the Plaintiff, she and the Deceased divorced in 1981. No children were born to the marriage of the Plaintiff and the Deceased. 4 The Deceased left a will dated 30 September 2003, probate whereof was on 28 May 2004 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). By that will the Deceased gave legacies to various friends and kinsfolk, and after payment of debts and expenses, gave the residue between his brother, Norman Wilson, and his cousin, Robert Tacon. The inventory of property discloses that the assets of the Deceased consisted of a home unit at 5 Scott Street, Newcastle (having an estimated value of $290,000), moneys held in the Newcastle Permanent Building Society (totalling $41,611), an interest in the estate of the late Viola June Cross, who was one of the legatees mentioned in the will of the Deceased, in an amount of $60,000, and a small refund of an unexpired premium ($248). The assets disclosed in the inventory of property have a total value of almost $392,000. 5 In addition to the foregoing assets the affidavit of administrator also discloses as an asset a one-third share of residue in the estate of the late Viola June Cross ($48,160), thus bringing the total value of the estate of the Deceased to a little over $440,000. The real property of the Deceased has been realised. The various pecuniary legacies have been paid. The undistributed assets in the estate consist of funds presently held by the Defendant ($93,595), together with the balance of the entitlement of the Deceased in the estate of the late Viola June Cross ($32,000), totalling $125,595. From that sum must be paid the Defendant's commission and his costs and expenses in respect to the administration of the estate, the amounts whereof have not yet been quantified. 6 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to an order that her costs be paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs paid out of the estate. It is estimated on behalf of the Plaintiff that her costs will total $21,500, whilst it is estimated on behalf of the Defendant that his costs will total $31,000. Accordingly, the Court should proceed upon the basis that the value of the estate presently available to meet any order for provision which might be made in favour of the Plaintiff will be no more than about $73,000 (and probably considerably less). 7 According to the Plaintiff, she had been in employment before her marriage to the Deceased. She said that shortly before their marriage she and the Deceased put a deposit on a house property at Eight Street, Weston, both she and Deceased contributing equally to that deposit, and that they moved into that house property upon their marriage. The Plaintiff said that she and the Deceased effected renovations and refurbishments to that house property, their contributions in that regard being equal. They lived in the house property until their separation in February 1962, following which the Plaintiff and the Deceased each returned to reside with their respective parents. The house-property was, according to the Plaintiff, sold shortly before they moved out of occupation. 8 It was the evidence of the Plaintiff that until they separated she handed to the Deceased her entire pay-packet each week when she was in employment. She understood that that money went towards paying the mortgage and towards household and living expenses. 9 It was the evidence of the Plaintiff that she received no financial benefit from the sale of the property at Weston, although, according to the Plaintiff, the Deceased said to her on one occasion, "We will divide the money when the land is sold". 10 After her separation from the Deceased the Plaintiff was in employment until she was aged about 55 (that is, until about 1983). She presently resides in Housing Commission accommodation at 20/23 Telford Street, Newcastle East, which has been her residence for the past 22 years. The Plaintiff gave evidence concerning the nature of the furniture and furnishings of her residence. The Plaintiff's only income is an age pension, which she said was currently in the amount of $374 a fortnight. She said that her only asset was an amount of $5,000 in a bank account, which she intended should be used to pay for her funeral expenses. The Plaintiff gave evidence of her weekly expenditure, which she said totalled $187. 11 The Plaintiff said that she suffers from various health problems, including diabetes, and a bladder condition. She said that she requires new false teeth. She also said that she suffers from rheumatoid arthritis and curvature of the spine, and that she would like to have a special bed to assist in those problems. The Plaintiff gave evidence of the cost of various replacement items of furniture which she said that she required, and of her enquiries concerning the cost of the surgical procedure regarding her bladder condition, as well as the cost of new false teeth. 12 I have already recorded that, although the Plaintiff and the Deceased separated in 1962, they did not divorce until 1981. However, it was the evidence of the Plaintiff that from the time when she moved into the Telford Street residence, in about 1983, she maintained contact with the Deceased, and that, in his later years the Plaintiff had become, in effect, the principal carer of the Deceased while he was suffering health problems in his declining years. The nature and extent of the contact between the Plaintiff and the Deceased in the latter years of the Deceased's life and of any services performed by the Plaintiff for the Deceased in that period were disputed by the Defendant. 13 The Plaintiff sought an order which would give to her from the estate of the Deceased an amount sufficient to purchase her own residence (she estimated that the cost of a home unit in the centre of Newcastle would be about $500,000), as well as to acquire replacement furniture and furnishings and to attend to her health problems. 14 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file. 15 The Plaintiff, as a former wife of the Deceased, is an eligible person within paragraph (c) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. There are no other eligible persons in relation to the Deceased. 16 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 all information relating to the financial and material circumstances of the applicant. 17 In the instant case the Plaintiff has signally failed to do so. 18 It emerged only in the oral evidence of the Plaintiff that on 18 June 1997 she had married one Robert Arthur Gollan, (also known as Wilfred Arthur Gollan), who died on 7 March 2003. In that regard the Plaintiff said that Mr Gollan did not leave a will and that she received no financial benefit from his estate. It transpired, however, that Mr Gollan did leave a will, dated 25 August 1983, under which the Plaintiff was named as sole beneficiary and sole executor. That will was revoked upon the Plaintiff's marriage to Mr Gollan on 18 June 1997. The Plaintiff made application for administration of the intestate estate of Mr Gollan, and letters of administration were granted to the Plaintiff on 4 December 2003, that is, only a little over two years ago. According to the affidavit of the Plaintiff sworn by her on 2 October 2003 in support of her application for administration, the estate of Mr Gollan had a gross value of $52,048.39 and a net value in the same amount. 19 Although she was entitled to receive the entirety of his estate upon the intestacy of Mr Gollan, the Plaintiff did not choose to disclose to the Court what she had done with that amount of $52,000. The Plaintiff attempted to explain the absence from her affidavit evidence of any reference to her marriage of more than six years to Mr Gollan by casting the blame in that regard upon her solicitor. She declined to waive legal professional privilege in respect to any instructions which the solicitor had obtained from her, to enable that assertion of blame on the part of the solicitor to be tested. When asked why she declined to waive that privilege, the Plaintiff responded, "Because I don't want to. I don't have to". 20 The solicitors who act for the Plaintiff in the present proceedings are not the solicitors who, only ten months previously, had acted for her in the administration of the estate of Mr Gollan. I am in agreement with the submission on behalf of the Defendant that I should be sceptical about this change of solicitors. The inference is open that the Plaintiff deliberately did not wish her present solicitors to become aware of the fact of her marriage to Mr Gollan, or of the benefit which she received from his estate. It emerged during the hearing before me that the Plaintiff's present solicitors and her Counsel had become aware of the fact of her marriage to Mr Gollan only a few days before the hearing, and that it was only during the course of the hearing that they became aware of the grant of administration to the Plaintiff of that estate and the benefit received by the Plaintiff upon Mr Gollan's intestacy. 21 I was most unfavourably impressed by the Plaintiff as a witness. Whether deliberately, or unintentionally, the Plaintiff chose not to reveal to the Court a number of very significant matters relating to her financial and material circumstances. It is difficult to accept that the failure of the Plaintiff to disclose that no earlier than 4 December 2003 she received $52,048 from the intestate estate of Mr Gollan, or to state what she did with that sum, could have been due to inadvertence. A wife would not forget or overlook the fact that she had obtained administration of the intestate estate of her recently deceased husband (and had retained solicitors to act for her in the application for that administration), and that she had received a not inconsiderable sum upon her husband's intestacy. The constant responses of the Plaintiff, "I can't remember", to questions concerning the receipt by her of this amount from the estate of Mr Gollan did not encourage reliance upon the Plaintiff's evidence. The Court cannot have any confidence that the evidence given by the Plaintiff concerning her present circumstances is either complete or accurate. I regarded the entirety of the Plaintiff's evidence as being characterised by a total lack of frankness. 22 As an instance of that lack of completeness and accuracy in her evidence I would refer to the statement of the Plaintiff in paragraph 38 of her primary affidavit, that of 2 December 2004, that her only asset is $5,000 in a bank account, with which to pay for her funeral expenses. On 2 December 2004 the credit balance in the Plaintiff's account with Newcastle Permanent Building Society Limited was $11,323.86. The credit balance in that account remained in excess of that figure until July 2005 when it fell to $9,923.49. From August 2005 until October 2005 the credit balance remained in excess of $20,000, and from then until early December 2005 it fluctuated between $19,820 and $17,555. The most recent credit balance available at the date of the hearing was in an amount of $9,129.30. Neither at the time when she filed her affidavit in reply on 30 March 2005 (at which date the credit balance in her account stood at $13,273.22) or at the hearing did the Plaintiff choose to present to the Court an accurate statement of the moneys standing to her credit in her bank account. 23 I have already recorded that it was the evidence of the Plaintiff that from about 1983 she maintained contact with the Deceased, and that, in his later years, she had become, in effect, the principal carer of the Deceased, who was suffering serious health problems. It will be appreciated that for a significant part of that period, from 18 June 1997 until 7 March 2003, the Plaintiff was married to and was living with Mr Gollan. Further, it is not without significance that in her affidavit of 28 November 2003, in support of her application for administration of the intestate estate of Mr Gollan, the Plaintiff stated that she had lived with Mr Gollan up to the time of his death "and for a continuous period of thirty years beforehand", that is, from March 1973 until March 2003. 24 Thus the only period during which it would, as a practical matter, have been possible for the Plaintiff to be available, without responsibilities towards her own husband (who was aged 78 when he died), to care for the Deceased, would have been in the period between the death of Mr Gollan on 7 March 2003 and the death of the Deceased thirteen months later, on 7 April 2004. I am not satisfied that any contact which the Plaintiff might have had with the Deceased, either from about 1983 or, more importantly, in the declining years of the Plaintiff's life, was of the nature or extent asserted by the Plaintiff. Where the evidence of the Plaintiff on this topic is disputed by the evidence of any of the other witnesses, being a number of the pecuniary legatees named in the will (none of whom were cross-examined on behalf of the Plaintiff), I prefer the evidence of those other witnesses to that of the Plaintiff. 25 In any event, it will be appreciated that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct by the applicant. Even if, in the circumstances of this case, the Plaintiff had performed for the Deceased services of the nature asserted by her that fact would not of itself be determinative of the claim of the Plaintiff. 26 It is not for the Court to tell people how they should conduct their lives or how they should spend their money. But where, as here, the Plaintiff asserts needs based upon her statement that her expenses are equal to or exceed her income, and that she cannot afford surgery for her bladder problem or new false teeth, and that she cannot afford to purchase new furniture and furnishings for her residence, the Plaintiff's overseas cruise in December 2005, (upon which she was accompanied by a friend, for whom she paid, costing a total of $6,000) and her interstate holiday on The Ghan in 2003 acquire some significance. In addition, the Plaintiff's financial situation was such that in 2001 she was able to advance to her brother an amount of $21,500 in order to buy a motor car. In September 2004 her brother repaid to her $10,000 of that sum. In the meantime, in 2003, the Plaintiff had made further loans, in unspecified amounts, to her brother. In November 2003 she withdrew $3,000 from her bank account, but was not able to explain the purpose of that withdrawal. 27 It also emerged from the Plaintiff's evidence under cross-examination that, as a result of being involved in a bus accident (at a time which she cannot now remember), she received in 2004 a net amount of $8,300 from a settlement figure of $25,000 (presumably after payment of medical expenses and costs). The Plaintiff also said that her brother had given her "a lot of money" when she cared for him in the period before she married Mr Gollan. When asked to clarify the phrase "a lot of money", she used the phrase "a few thousand". 28 The assertions volunteered by the Plaintiff concerning the Deceased during her cross-examination that "He was a thief", and "He stole all the money", and that "He left me penniless" do not sit well, first, with her description of the nature of her relationship with the Deceased during the latter years of his lifetime and of her services to him; and, second, with the failure of the Plaintiff to explain significant withdrawals from her bank account or to explain how she disbursed significant amounts which she had received in recent years, being especially the amount of $52,000 from the estate of Mr Gollan in late 2003 or early 2004, the amount of $8,300 which she received in 2004 in respect to her claim arising out of the bus accident, and the repayment of $10,000 from her brother in September 2004. 29 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for her proper maintenance. (See, also, Vigolo v Bostin (2005) 79 ALJR 731, in which the High Court affirmed the foregoing test in Singer v Berghouse). In the light of the totally unsatisfactory evidence given by the Plaintiff concerning her present financial and material circumstances and the not insignificant amounts which the Plaintiff has received and which she may have disbursed (although she cannot offer any details thereof) in the last two years, I am not satisfied that the Plaintiff has established that she has been left without adequate provision for her proper maintenance. It is unnecessary, therefore, for me to proceed to the second stage in the two-stage process identified by the High Court of Australia. 30 But, in any event, even if (contrary to the conclusion which I have just expressed) the Plaintiff were to have established that she has been left without adequate provision for her proper maintenance, the evidence upon which she relies in support of her claim for provision is far from satisfactory. 31 I have already observed that the Plaintiff is totally secure in her accommodation. She agreed that her present residence is very conveniently located. There is no possible basis upon which the Plaintiff could be entitled to receive from the estate of the Deceased an amount sufficient to enable her to purchase a home unit anywhere, let alone in central Newcastle. 32 Further, although the Plaintiff expressed the opinion that the cost of such a home unit would be about $500,000, that opinion being based upon information given to her by real estate agents, she did not choose to inspect any of the home units in respect to which that estimation was based. Similarly, although the Plaintiff in her evidence offered prices in respect to various household appliances which she said she needed to acquire or replace, she did not choose to inspect any of the appliances. There was no evidence that those particular appliances were necessary, or indeed appropriate, for her needs. 33 It was the evidence of the Plaintiff that at the time of her divorce she did not receive any property settlement or any financial benefit from the Deceased. The Plaintiff did not choose to place before the Court any documentary material relating to the Family Court proceedings between herself and the Deceased. Such material could have confirmed the Plaintiff's unsupported assertion in this regard. The Plaintiff did not offer any explanation as to why at the time of the divorce - or, indeed, at any time before the divorce or up to the death of the Deceased - she did not choose to seek from the Deceased any property settlement regarding the residence at Weston, or any form of maintenance from the Deceased. 34 Since the Plaintiff is an eligible person only within paragraph (c) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, it is necessary for her to establish that there are factors warranting the bringing of the application, pursuant to section 9 (1) of the Act. Those are factors which, when added to facts which render the applicant an eligible person, give her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased (see Re Fulop Deceased (1987) 8 NSWLR 679 at 681). 35 It was submitted on behalf of the Plaintiff that in the instant case those factors consisted of the following matters. The Plaintiff and the Deceased were married and lived together for ten years. The Plaintiff worked during that period and handed the entirety of her earnings to the Deceased, who handled their financial affairs. The house property at Weston was purchased in the name of the Deceased. Upon the sale of that property the Plaintiff received nothing. I should here observe that the evidence did not disclose whether upon the sale the Deceased himself received anything. There was little, if any, information before the Court concerning the purchase price, the amount of the deposit, the amount advanced under a mortgage, and the sale price in respect to that house property. 36 The Plaintiff also as a factor warranting the bringing of her application relied upon the fact that at the time of the divorce there was no property settlement. I have already commented concerning the absence of any documentation from the Family Court and the absence of any explanation as to why the Plaintiff, who had allowed almost twenty years to elapse from the time of her separation from the Deceased until the divorce, did not choose to seek such a property settlement. In the instant case, where the Plaintiff separated from the Deceased in 1962 and was divorced from him in 1981, and where the Plaintiff subsequently was married to another person from 1997 to 2003, and had lived with that other person from 1973 to 2003, I am not satisfied that there are any factors which warrant the making of the present application for an order for provision out of the estate of the Deceased. (As to factors warranting the making of an application by a former spouse, see the decision of Young J (as he then was) in O'Shaughnessy v Mantle (1986) 7 NSWLR 142 at 147-149 and the decision of the Court of Appeal in Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 651-654 per Kirby P.) 37 But even if, contrary to the conclusion which I have just expressed, I were to be satisfied that there were factors warranting the making of the application, I have already recorded that I am not satisfied that the Plaintiff has established that in consequence of the testamentary dispositions of the Deceased she has been left without adequate provision for her proper maintenance. The Plaintiff was not dependent upon the Deceased for more than thirty years before his death. The Plaintiff apparently chose not to pursue any rights which she might have had either during the period of their marriage, or after the sale of the residence at Weston, or at the time of their divorce, or thereafter until the death of the Deceased. 38 For completeness, I should observe that the claim of the Plaintiff must be approached in the light of the competing claims of the beneficiaries named in the will of the Deceased. They are the chosen objects of the testamentary beneficence of the Deceased. Of the beneficiaries who have put on evidence concerning their financial and material circumstances, it is fair to say that none could be described as being in affluent circumstances, although some are more comfortably situated than others. Even if (contrary to the conclusions which I have already expressed) I were to be satisfied that the Plaintiff was entitled to some very modest provision out of the estate of the Deceased, I would not for that purpose be disposed to disturb the distributions already made to the pecuniary legatees. Indeed, the Plaintiff by her summons does not seek to designate as notional estate of the Deceased the legacies already distributed to those beneficiaries. 39 I propose therefore to dismiss the claim of the Plaintiff. 40 I make the following orders:

Wilson v Public Trustee

At a glance

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Before

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Judgment (13 paragraphs)

Parties

Cases Cited (5)

Cited By (1)