Axiak v Axiak [2009] NSWSC 1319 (2 December 2009)

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Axiak v Axiak [2009] NSWSC 1319 (2 December 2009)

Last Updated: 10 December 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Axiak v Axiak [2009] NSWSC 1319
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:
Equity Division

FILE NUMBER(S):
1044/09

HEARING DATE(S):
30/11/09

JUDGMENT DATE:
2 December 2009

EX TEMPORE DATE:
2 December 2009

PARTIES:
1044/09 Tony Axiak v Sam Axiak & Anor

JUDGMENT OF:
Macready AsJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr MK Meek SC for plaintiff

Mr B Skinner for defendant

SOLICITORS:
Martin Collins Cumberland Frank Commercial & Litigation Lawyers
Saunders and Standen Solicitors


CATCHWORDS:
Family Provision. Application by son who was left nothing in his mother's will.
Breach in relationship with mother. Legacy awarded. No matter of principle.

LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
Paragraph 58



JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 2 DECEMBER 2009


1044 of 2009 Louis Carmel Axiak and Tony Axiak v Sam Axiak and Connie Ellen Xuereb

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Antonio Axiak who died on 13 July 2007. Her husband had pre-deceased her and she was survived by her four children, two of whom are plaintiffs and two of whom are defendants.

Last will of the deceased

2 This was made on 2 March 1998 and the defendants were appointed executors. The whole estate was left to them in equal shares.

3 The action by Louis Axiak has been settled on the basis that he receive a payment of $75,000. Orders have been made by consent and thus they operate as a codicil to the will of the deceased. No provision was made by the will for the plaintiffs.

Assets of the estate

4 The deceased property at Schofields was estimated at $2.5 million for probate. There was cash in the estate of $33,222 and other assets in the sum of $10,487 making a total of $2,544,309.

5 Costs have been incurred; those of the plaintiff in the sum of $46,500 and the defendants, admittedly on a two day hearing basis, at $62,053; this is a total of $108,553.

Family History

6 The deceased was born in April 1931 and she married her husband in September 1954. She was born in Malta. They had four children, Sam born in August 1955, Louis born in May 1956, Tony the remaining plaintiff in 1963, and Connie, one of the defendants, in June 1965.

7 In due course, after growing up, Tony married his wife Teresa 1994. In 1997 were there was an argument between Tony and Louis on the one hand and Sam and Connie on the other in the presence of their parents. This related to a demand about the children looking after the parents and I will return to that a little later.

8 As a result of that argument the deceased made her last will, to which I have referred, on 2 March 1998. In June 2000 deceased husband Frank died aged 75 years. He had been suffering from dementia for some time.

9 According to the plaintiff he reconciled with his mother in 2002 and would drop in and see her every two to three weeks. The deceased, as I mentioned, died on 13 July 2007 and probate was granted in January of the following year.

10 Tony had divorced his wife in 2005, and in 2007 he commenced a de facto relationship with Tracy Shaw. He had a property settlement with his former wife and 2008 and received $860,000. He purchased his present residence at Tennyson for a little under $1 million. He borrowed $188,180 from the Westpac Bank for this purchase and paid the balance from the proceedings of the settlement.

11 The summons in this matter was filed on 7 January 2009 in time.

Eligibility

12 The plaintiff is an eligible person, being a child of the deceased.

13 In applications under the Family Provision Act the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation in life

14 Tony is 46 years of age and he was married to Teresa in 1994. They had three children, Christopher now aged 13 years, Natasha now aged 12 years and Rachel now aged eight years. They separated in 2002 and divorced in 2005. As I mentioned he started another relationship in 2007. His partner Tracy has three children of her own, Adam aged 12 years, Caroline aged 9 years, and Emilie aged 6 years.

15 Tony in his household has Christopher full time and he has access arrangements with his ex-wife regarding Natasha and Rachel. Tracy’s two daughters live with her in Tony’s house while Adam, her son, lives with his father. The relationship between them is steady at the moment but in the past there have been tensions with a blended family. She has left on four occasions. He is hopeful it will continue but he has his doubts.

16 Tony has the following assets: A property at Tennyson Road, Tennyson worth $965,000; his interest in the business as at 30 June 209 $55,927.55, a mobile home or office on the property purchased for $10,000; a 1992 Toyota Landcruiser, a Harley Davidson motor bike purchased for $35,000 and now worth about $25,000; a Caterpillar tractor which is in the books worth $50,000 and which is the subject of hire purchase. He also has a low loader which apparently is quite useless as it will not fit the Caterpillar tractor.

17 The business he operates is Quakers Hill Excavations and Plant Hire Pty Ltd. That company operates an earth moving business and is also a trustee for a trust known as the Axiak Plant Hire Trust. It appears that the sole purpose of the trust is to purchase and hire assets which it owns to the company. Tony is sole director and shareholder of the company and he is one of the beneficiaries of the trust.

18 The trust for the financial year ended 30 June 2008 had an operating profit of $11,035.41. A distribution of $11,000 was made to Tony. The trust for the financial year ended 30 June 2009 had an operating profit of $55,987. A distribution was made to the company rather than to Tony.

19 Tony’s income for the year ended 30 June 2008 was a salary of $30,000 gross and the distribution of $11,000. Tony's taxable income for the year ended 30 June 2009 was $47,057. Tony has superannuation which is currently in the order of $26,071.90.

20 The plaintiff has the following liabilities: he has a fixed mortgage with a total liability of $118,598.91. His partner, Tracy, does some casual work. She herself owns a property at Riverstone and this is rented for $340 a week. It was mortgaged for about $140,000.

21 The plaintiff has had a number of health issues, including a motor vehicle accident in April 2004 which left him with a left shoulder injury. He has only about 80% of the use of the shoulder since that accident. On 31 October 2008 he was involved in a motor vehicle accident in which he lost control of the Mack truck which he was driving and it hit a telegraph pole. He sustained injuries, including a laceration to his skull, a fractured left collarbone, fractured ribs, a punctured lung and severe burns to his right hand. He seems to be well now, although he has been told he should have an operation on his collarbone but he has not as yet had it. Certainly at the moment he can work.

22 Tony did not contribute to the estate in a financial sense although he, like his siblings, worked on the farm when they were young. He has not received any substantial funds from the estates of his parents.

The situation in life of Sam Axiak

23 Sam is 53 years of age, married with a child aged 22 years. He owns the following properties: half share with his brother Louis in a property at Freemans Reach, $800,000; Alex Avenue Schofields $900,000 and Pye Road, Quakers Hill $290,000, a total of $1,990,000. He also owns the following: a 2007 Hino Truck, a 1995 Toyota Hilux utility, a 2005 Beaver trailer, ANZ Bank accounts in the order of $40,000; Esanda Deposit $48,867.29, St George bank account $672.14, an ANZ cheque account $4,609.09, an ANZ Business classic account $5,523.43 and his turfing Business proprietor funds which, as at 30 June 2008, amounted $57,659.03. He also had some other substantial savings but he transferred those moneys to his wife a while ago. She retains them in a term deposit of $196,220.10. He does not appear to have any liabilities. His son lives at home, he being a qualified auto electrician and he works with his father.

24 He also did not contribute to the estate finances and did not receive any substantial benefit.

The situation in life of Connie Xuered

25 Connie is married to Charles and they have three children; Michael aged 33 years, Michelle aged 21 and Natalie aged 19. She and her husband both work and own their home at Grange Avenue, Schofields unencumbered. They also own the following; a 2001 Holden utility; 1994 Ford Falcon, 2003 Mitsubishi Mirage, 290 Woolworths shares, a Commonwealth Bank term deposit of $50,000, a Streamline Account of $93,40, a Commonwealth Bank term deposit of $130,000 and REST superannuation of $36,924,42. Connie’s taxable income for the 2009 financial year was $40,997 and her husband’s taxable income for that year was $81,702.

26 All three of their children live at home. Michael is a Probationary Police constable; Michelle is studying full time at the University of Western Sydney and does casual work at Woolworths; and Natalie at the moment is doing casual work at Woolworths and is a bar-hand and is soon to take up study as a student at the Police Academy. Connie and her husband have disclosed no liabilities. The also did not contribute to the finances of the estate.

Discussion

27 The principle problem in this case is the breakdown in relations between the deceased and Tony which occurred in 1997. It arose because the father ceased driving in 1997 and could no long drive his wife around. She then demanded that the children look after them equally. Tony who, like his siblings had a family, considered that he did not have time to meet his mother’s demands. He says he offered to pay, with his siblings, for someone to look after them at home.

28 The defendant suggests this offer did not occur and Tony merely suggested that his parents should go into a nursing home. Whatever occurred, it is plain that because of his refusal to meet his mother’s demands there was a break in the relationship. After a few months the deceased then changed her will.

29 There were other incidents at the time of the death of the deceased’s husband in 2000. According to the first defendant, the plaintiff had accused the deceased of killing her husband. The second defendant was said to be present on this occasion which the plaintiff denied. She also gave evidence that that event occurred.

30 The credit of the parties has to be considered in order to resolve this issue. So far as the financial situation of each of the parties is concerned, each of the parties in these proceedings had a real problem in disclosing to this Court what were their financial circumstances and they seemed to think that if they gave the Court a rough idea that would be good enough. This problem applied to all the witnesses in the case. The plaintiff I found on one occasion was prepared to tailor his evidence and that was evidenced by his contrary evidence about the sale of his truck. The second defendant impressed me as a person who was trying to do her best, as did the first defendant, although he was very upset and distressed by the proceedings and what occurred in his life as a result of the disputes. Having regard to the evidence of the witnesses, I do accept that these incidents did occur, notwithstanding the plaintiff's denials. It is plain that that until the death of the deceased the rest of the family had the burden of looking after their parents. They did their shopping. They took them to medical appointments and anywhere else, including church each weekend, where they wished to go.

31 The first defendant was extremely resentful against the plaintiff Tony, as a result of an unfortunate event when he was staying over at his mother's home during the night. He was looking after his mother and in his absence his wife miscarried and they lost their second child. This obviously created enormous tension between Tony and his brother Sam.

32 The defendants say they never saw the plaintiff Tony visit the deceased again. They say that the deceased had never mentioned his visits. However, Tony says that in 2002 he reconciled and that occurred because he was going on a trip to Malta. He visited his mother and asked if she wanted him to get anything. She asked him to get six chains and lockets from Malta where she thought the gold was better. She gave him the money. He complied with her request and gave them to his mother who had said that she intended to give them to her grandchildren.

33 He says that he was there every two or three weeks. Because of the bad blood between him and the first defendant, and the fact that he had not spoken to his sister for 15 years, he said he would call by his mother's house but not stop if they were there. He himself admitted the relationship was not as good as before.

34 One interesting aspect is that those chains were chains for the grandchildren. This came up in the course of the evidence and was not dealt with in any affidavit. There was no evidence in reply that the grandchildren did not get the chains.

35 Bearing this in mind, I am prepared to accept that he did make contact again but the contact was very limited. One thing is clear, he never did anything for her. This still continued to be done by the defendants. Tony left it all to them. It was only a partial reconciliation. If it had been a full reconciliation one would have expected the deceased to talk to the other siblings about it.

36 Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person;

“It may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

37 In Benney v Jones (1991) 23 NSWLR 559 at 568-9 Priestley JA noted:

“This conclusion directly raises the question of whether the word ‘ought’ in sections of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...

It seems plain from the comparison of the two Acts, and particularly from section 3 of the 1916 Act and section 7 and section 9 of the present Act, the language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.

The Act draws a distinction between the eligible persons referred to in paragraph (a) and paragraph (b) on the one hand and paragraph (c) and paragraph (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoke of in section 3 of the 1916 Act and section 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life has being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the Court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v P Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (158) that ‘many cases suggest that an applicant must show a moral claim...’, he went on to say that this was a gloss on the Act and that was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into section 7 of the present Act of the word ‘ought’ in replacement of the words from section 3 of the 1916 Act as the Court thinks fit shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch. To my mind, this is a very clear indication that an eligible person within paragraph (c) in paragraph (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to the application by eligible persons within paragraph (a) and paragraph (b) although it is unnecessary to decide that in this case."

38 Meagher JA (NSWLR at 57) agreed with Priestley JA.

39 Meagher JA had previously expressed a view in Hughes v Hughes, Court of Appeal, unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case:

“Her right arose not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added)

40 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

41 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron [1980] HCA 14; (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490; see also Kearns v Ellis (Court of Appeal 5 December 1984 unreported, and Gorton v Parks (1989) 17 NSWLR 1.

Where the applicant is a member of the deceased family, as referred to in the earlier paragraphs of section 6 (1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."

42 In Gorton v Parks Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. In the course of doing so, his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima face or at any stage. It is a discarded categorisation.”

43 Bryson J also rationalised the decision of Pontifical Society for the Propogation of the Faith v Scales (Scale’ case) [1962] HCA 19; (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18);

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth, there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

44 In Gorton v Parks (1989) 17 NSWLR 1 at 9-10, Bryson J sought to distinguish scales’ case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distance age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seems to have been systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment of legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

45 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs:

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relation. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ...”

46 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High court and House of Lords decisions, noting the effect of Singer v Berghouse (`1994) 184 CLR 201:

“In Singer’s case, a widow who had been married less than one year to a sixty-eight-year-old man failed in the application under this Act in this Court, in the Court of Appeal and in the High Court. Majority of the Court said at page 200 and made at following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought do have been made. At page 209 the Judges pointed out that Re Allen, has guided past courts and has three times been approved by the Privy Council or High Court, but that ‘ we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, reference to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language.’ They then say ‘the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased 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."

47 Young J also observed:

“In Fraser’s case , Kirby P at page 29 said that ‘I do not consider that it would be safe for this Court, or other Courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning moral duty’. However, his Honour's decision made it quite clear that he thought that references to ‘moral duty’ in the judgement under appeal really amounted to little more than a shorthand expression for the lengthy statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘ either by the observations of the majority in Singer or by the High Courts reference, in the footnote to what Murphy J. said earlier (page 27).’

Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, the High Court was itself using the words ’moral claim’ in decisions under this Act.

Sheller JA again did not consider that the High Court suggested an abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy J. at page 42, ‘the point made in the judgement to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The Court, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the Court to make an order."

48 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

49 In Walker v Walker (page 27) Young J noted:

“I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In a family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by a factors too strong for either to control or somewhere in between.

The important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or a further provision for the applicant ..."

50 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

“I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of ‘eligible person’ in section 6 (1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.”

51 This view was reinforced recently in Nicholls v Hall & Ors [2007] NSWSC 356 where the Court said:

“43. There are some statements in the cases that could be understood as meaning that, if there is nothing more than ‘bare paternity’ in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and a lack of competing claims), a Court could find that child was left without adequate provision for proper maintenance.

44. Such a view is supported by what Holland J said in Kleinig v Neal (No 2) (1981) 2 NSWLR 532 at 540:

‘If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare.’

We should make it clear that, in this discussion of ‘bare paternity’, we are not intending to include a mere sperm donor; in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world.

45. Our view is also supported by what Bryson J said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that ‘the bare fact of paternity’ is ‘ very great importance in morality.’ We agree with Bright J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR9 at 18-20, as conforming to change in the beliefs in the community about moral duties to children.

46. It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in ;Palmer v Dolman [2005] NSWCA at [112], to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order.

47. We accept there is a suggestion to the contrary in Hughes v Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this:

“The right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case: namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her early trips and in her professed; and continued willingness to be of whatever assistance to her father she could be.’

48. We do not understand an applicant to have a ‘right’ in any clear sense, in any event. It is only if an applicant satisfies the Court that he or she has been left without adequate provision for proper maintenance, and satisfies the Court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, the right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we have referred to, namely, the applicant's needs, the nature and extent of the deceased's estate, and other legitimate claims. We do not think the passage from Hughes v Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood."

52 As mentioned, an important matter is whether the plaintiff has been left without adequate and proper provision for his maintenance, education and advancement in life. His claim for provision has been expressed being for certain particular needs and general advancement in life. One matter which is proved on the evidence is the need for certain building work for which he has received quotes of $73,500. He also requires re-carpeting of the home and the installation of an air conditioner, quotes for these not being obtained. There was also another matter where Tony said he wanted a truck to take the Caterpillar around so he could get work for it. I can understand this as he says without a low loader he is un-competitive in the tender process. Obviously he would like, if he could, to reduce his mortgage.

53 An important matter, of course, is he has very little behind him in the way of superannuation. He is a manual worker and has been that all his life. He is 46 years of age and would probably have another 20 years of working life. It is unlikely, given the family commitments which he has, that he is likely to acquire substantial saving to provide for himself into his old age.

54 These matters all have to be seen in the context of the estate being a large one. The question is what is an appropriate provision in respect of a large estate is dealt with by Young J in Anasson v Phillips, 4 March 1988, where he said:

“...with a very large estate... there is a great temptation on a court to be over-generous with other people’s money. This is especially so when the Court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. however, the case should not be approached in this way as the application has to be determined in accordance with legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a ;moral duty to those who in the community’s eyes she would have made proper provision for, that anyone can legally complain about another person’s will. Even then the Court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412.”

55 In this case it is fair to say that while the defendants do not have a large income, they do have unencumbered homes. The second defendant has substantial savings, as does the first defendant, although he has given them to his wife.

56 The plaintiff was probably applying his own family responsibilities correctly when he refused the deceased’s demands. No doubt the deceased was accustomed in her culture and background to believe she had the right to demand priority. At least to the plaintiff’s credit he did after five years’ time make an approach.

57 In these and all the other circumstances it seems that it is appropriate to make provision for the plaintiff. He asks for $350,000 but I think an appropriate figure is $250,000.

58 The orders I make are:

1. I order a legacy out of the estate in the sum of $250,000 be paid to the plaintiff.

2. Interest will be payable on the legacy if it is not paid within three months from today at the rate provided for under the Probate and Administration Act on and from the expiration of that three month period.

3. The costs of the plaintiff on the ordinary basis and the defendants on an indemnity basis be paid or retained out of the estate of the deceased.

4. I order the exhibits be returned.

5. In respect of the legacy payable to Louis Carmel Axiak in addition to the orders which I made on Monday, I order interest will be payable on that legacy if it is not paid within three months from today at the rate provided for under the Probate and Administration Act on and from the expiration of that three month period.

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AMENDMENTS:


09/12/2009 - to correct order for costs for plaintiff - Paragraph(s) 58


LAST UPDATED:
9 December 2009