Mitchell v Tucker [2010] NSWSC 141 (4 March 2010)

Last Updated: 5 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Mitchell v Tucker [2010] NSWSC 141


JURISDICTION:


FILE NUMBER(S):
5187 of 2008

HEARING DATE(S):
19 and 20 October 2009

JUDGMENT DATE:
4 March 2010

PARTIES:
Ian William Mitchell (Plaintiff)
Sheridan Ann Tucker (First Defendant)
James Cressy Tucker (Second Defendant)

JUDGMENT OF:
McLaughlin AsJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Ms J. Pentelow (Plaintiff)
Mr A. Hill (Defendants)

SOLICITORS:
Nicholas W. J. Rolfe & Associates (Plaintiff)
Bartier Perry (Defendants)



CATCHWORDS:
SUCCESSION - family provision - claim by adult son against mother's estate - financial and material circumstances of Plaintiff - Deceased had earlier obtained additional provision from her husband's estate, thus reducing benefit received by Plaintiff under his father's will - obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information regarding his financial and material circumstances - whether Plaintiff has been left without adequate provision for his proper maintenance - if plaintiff does not understand his financial position, it is not possible for him to prove a present need - competing claim of First Defendant.

LEGISLATION CITED:
Family Provision Act 1982

CATEGORY:
Principal judgment

CASES CITED:
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

TEXTS CITED:


DECISION:
1. I order that the summons be dismissed.
2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.
3. The exhibits may be returned.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION



ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 4 March 2010

5187 of 2008 IAN WILLIAM MITCHELL –v- SHERIDAN ANN TUCKER and ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 15 October 2008 Ian William Mitchell claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of his late mother Valma Maie Mitchell (to whom I shall refer as “the Deceased”). The Deceased died on 21 November 2007, aged 83 years. She left a will dated 4 March 2003, probate whereof was on 11 February 2008 granted to Sheridan Ann Tucker and James Cressy Tucker, the executors named in such will (who are the Defendants to the present proceedings).

3 The Deceased, who was a widow (her husband, William George Mitchell, having died on 13 August 2001), was survived by her two children, being the Plaintiff and the First Defendant.

4 By her will the Deceased left the entirety of her estate (apart from a legacy of $2000 to each of the two infant children of the Plaintiff) to the First Defendant. Clause 7 of the will is in the following terms.

I HAVE MADE NO PROVISION for my son he IAN WILLIAM MITCHELL because of the very substantial provision made for him in my late husbands will.

5 The inventory of property discloses the following assets, and the respective values (or estimations of such values) thereof:

Furniture $3,000

House property situate at

Albert Street, North Deniliquin $245,000

Money in bank account $21,390

Moneys on deposit, totalling $433,729

Shares in public companies $35,419

Toyota Corolla Ascent motor vehicle $10,000

Total net estate $748,540

6 The Deceased had no liabilities.

7 In calculating the value of the estate available for distribution the costs of the present application must be taken into consideration, since the Plaintiff, if successful in his claim, will normally be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendants, irrespective of the outcome of the proceedings, will normally be entitled to an order that their costs be paid out of the estate. It was estimated on behalf of the Plaintiff that his costs will total $52,000, whilst it was estimated on behalf of the Defendants that their costs will total $45,000. Accordingly, it is appropriate to proceed upon the basis that the value of the distributable estate will be in the order of $651,000.

8 The Plaintiff, who was born in 1959, is presently aged 50. He was the younger of the two children of the Deceased. His sister, Sheridan, the First Defendant, was born in 1950, and is presently aged 59.

9 The Plaintiff’s family has for four generations, on his father’s side, farmed a rural estate at Deniliquin known as Oakleigh. That estate had been purchased by the Plaintiff’s great-grandfather in 1890. In 1959 the Plaintiff’s father, William George Mitchell (to whom I shall refer as “William”) purchased another rural estate, known as Randleigh. William thereafter continued to farm both Oakleigh and Randleigh. William and his wife (the Deceased) continued to reside in the house property at Hay Road, Deniliquin, which had been their matrimonial home since shortly after their marriage in 1949, and which remained such until William’s death in 2001.

10 In 1970 the Plaintiff’s paternal grandfather died, and left Oakleigh to his children. The Plaintiff’s father, William, and the Plaintiff’s paternal uncle continued to farm Oakleigh. After the death of his brother (the Plaintiff’s paternal uncle) William bought out the interests of his kinsfolk in Oakleigh, and became the sole owner of that property. Subsequently, William rented out the land on Oakleigh, the residence thereon being left vacant. (The Plaintiff’s parents continued to reside in their matrimonial home at Hay Road, Deniliquin.)

11 After completing his secondary education at a boarding school in Melbourne, the Plaintiff in 1976, aged 17, returned home to his parents. Thereafter, from 1977 he worked with this father on Randleigh, farming that property. The Plaintiff had a very close relationship with his father, and it is quite apparent that they enjoyed their work together, farming Randleigh. The Plaintiff’s relationship with his mother was not as close as that which he had with his father. According to the Plaintiff, the relationship between his parents was not particularly close.

12 By the time the Plaintiff finished school and returned to live with his parents, the First Defendant had long since departed the family home. She had qualified in nursing in Melbourne, and in 1974 married the Second Defendant.

13 Until his marriage in 1994 the Plaintiff continued to reside with his parents, and was supported by them. He did not receive any regular wage for his work on Randleigh, although his father provided him with small amounts of money from time to time. He also had the use of a motor vehicle. In 1983, the Plaintiff became a partner, equally with his father and his mother, in the farming partnership, W G Mitchell & Co. On many occasions, according to the Plaintiff, he was told by his parents, and especially by his father, that the farms would eventually be his, and that he was working for his future.

14 In 1994 the Plaintiff married his wife, Felicity. They have two children, Thomas (who was born in 1999 and is presently aged ten), and Sophia (who was born in 2001 and is presently aged nine). Since January 2008, the Plaintiff and his wife have lived separately and apart. Felicity and the children reside in a house property in Victoria Street, Deniliquin.

15 Both the Plaintiff and his wife gave evidence that their marriage had irretrievably broken down, and that there was little likelihood of their resuming cohabitation.

16 The Plaintiff’s father died, aged 82, on 13 August 2001. By his will, he gave his house property in Hay Road, Deniliquin (the matrimonial home of himself and his wife), together with the furniture and contents therein, to his wife Valerie Maie Mitchell (the Deceased in the present proceedings), and gave the residue of his estate to his son Ian William Mitchell (the present Plaintiff). Clause 5 in the will of William George Mitchell was as follows,

I DECLARE that I have made the bequests as set out in this will after taking into account the considerations that my said wife has assets in her own right; that my said daughter is otherwise appropriately provided for; and that my said son has made a substantial contribution to the operation and improvement of my farming properties; and in anticipation that my son will ensure that my wife is adequately provided for and assisted to meet her day-to-day living expenses if she is not otherwise able to meet such expenses from her own resources.

17 The estate of William George Mitchell comprised the following assets (to which the following respective values or estimations thereof were ascribed):

House property at Hay Road, Deniliquin $125,000.

Oakleigh $400,000

Randleigh $456,519

Motor vehicles $1,050

Deceased’s one third interest in partnership

W G Mitchell and Co $59,400

Department of Veteran’s Affairs benefits, totalling $1,781

Total assets $1,043,750

18 William’s liabilities totalled $5,152. Accordingly, his net estate had a value of $1,038,597.

19 From the estate of her husband the Deceased received the Hay Road property, together with furniture and contents. In addition, the Deceased received the benefit of a joint pensioner security account which was conducted conjointly by herself and her husband, in a total amount of $10,497.

20 The Plaintiff received the remainder of his father’s estate, valued at about $913,597.

21 The Deceased, being dissatisfied with the provision made for her by the will of her late husband, William George Mitchell, instituted proceedings under the Family Provision Act 1982, being proceedings 2911 of 2002 in the Equity Division of the Supreme Court. The present Plaintiff, as executor of his father’s estate, was the Defendant to those proceedings. Those proceedings were settled at mediation in January 2003, as a result of which the Plaintiff paid to his mother the sum of $235,000; and transferred to her the Deceased’s Volvo motor vehicle (valued at $1,050) and hand lawnmower. In return, the Deceased relinquished and transferred to the Plaintiff all her right, title and interest in the partnership, W G Mitchell & Co (that interest being valued at $29,521).

22 In order to raise the foregoing sum of $235,000 for payment to his mother, the Plaintiff borrowed $275,000 from the ANZ Bank, that loan being secured against both Oakleigh and Randleigh. The Plaintiff is still paying interest upon that loan.

23 I have already referred to the statement made by the Deceased in clause 7 of her will, explaining that she had made no provision for the Plaintiff “because of the very substantial provision made for him in my late husbands will”. That statement is admissible in evidence pursuant to section 32 of the Family Provision Act. Whilst that statement is accurate so far as it goes, “very substantial provision” having been made for the Plaintiff in his father’s will, the Deceased’s statement is quite misleading, in that it does not tell the entire story. At the time when she made her will in March 2003, the Deceased had very recently, in January 2003, obtained from the estate of her late husband (in consequence of the proceedings which she had instituted under the Family Provision Act) the sum of $235,000, a motor vehicle and a hand lawn mower. Thus, to that extent, the Deceased herself had reduced the benefit which the Plaintiff was entitled to receive under his father’s will.

24 Nevertheless, even after resolving his mother’s claim the Plaintiff received from the estate of his late father, the two rural properties, Oakleigh and Randleigh, and his father’s one third interest in the partnership (those assets in 2001 having an estimated total value in excess of $900,000). After incurring a significant liability to resolve his mother’s claim, the Plaintiff’s benefit from his father’s estate was worth of at least $640,000, and, in addition, his mother transferred to him her interest in the partnership, valued at almost $30,000. Thus, in consequence of the death of his father, and after the resolution of his mother’s claim against his father’s estate, the Plaintiff was better off to the extent of no less than $640,000.

25 After the settlement of his mother’s claim Oakleigh was transferred into the names of the Plaintiff and his wife as joint tenants and Randleigh was transferred into the sole name of the Plaintiff.

26 The Plaintiff after the separation from his wife, for a period resided with friends in Deniliquin, and subsequently, for a period, in the former family home at Hay Road, Deniliquin. From early 2008 to the present time the Plaintiff has been residing alone in the homestead upon Oakleigh.

27 According to his affidavit evidence, the Plaintiff’s present assets (and their respective values (or estimations thereof) are as follows,

Randleigh $255,000 - $260,000

Oakleigh (half share) $350,000 -$375,000

Murray Irrigation Water Share entitlements

340 shares $225,000 - $260,000

Toyota Hilux utility motor vehicle $15,000

Half share in house contents $40,000

Plant and equipment $8,000

Superannuation entitlement $20,000

28 The Plaintiff’s only disclosed liability is his indebtedness to the ANZ Bank, presently stated to be in an amount of $275,000.

29 According to the Plaintiff, he is a casualty of the current drought in the Deniliquin area.

30 The Plaintiff gave evidence of very small financial returns from Randleigh, which he continued to farm for a period following the death of his father in 2001. He gave evidence of his taxable income in the financial years 2000 and 2001, and of the taxable income of the partnership, W G Mitchell & Co from 1990 to 2001, as well as of the net profit of that partnership for six of those years.

31 The Plaintiff since the death of his father, has at various times worked as a casual labourer, and has also worked as a wool classer (he having obtained qualifications in that field in the early 1990s). Since May 2008, he has been employed in a casual position as a hospital wardsman by the Greater Southern Area Health Service. His income from that source for the year 2007-2009 was $18,076. For that year he also received income of $10,742 from Deniliquin Shearing Pty Limited. In that year the income of the partnership was $29,236. Randleigh is currently leased to a tenant for $12,000 a year. According to the Plaintiff’s affidavit evidence, because of the drought, there is no water available to that property, and no rent had been received from the lessee for nearly twelve months before the Plaintiff’s primary affidavit was sworn in 30 January 2009.

32 The Plaintiff continues to pay interest upon the mortgage debt which he incurred in order to settle the claim of his mother against his father’s estate. According to his affidavit evidence, that debt is a great strain on his limited income, and he is currently experiencing extreme financial problems. The Plaintiff in that affidavit stated his belief that he should be entitled to receive a sum of money from his mother’s estate that would enable him to discharge the mortgage debt.

33 According to the Plaintiff, his financial problems have resulted in him suffering from depression. He has seen a psychiatrist on account of that condition. A report from Dr Taras Mikulin, the Plaintiff’s general medical practitioner, at Deniliquin, was placed in evidence.

34 The Plaintiff’s wife, Mrs Felicity Mitchell, is a medical ultrasonographer and radiographer by profession. The Plaintiff’s affidavit evidence concerning his wife’s earnings was limited to the year 2002, when, according to the Plaintiff, on average she brought home between $300 and $350 net a week. Mrs Felicity Mitchell, however, provided up to date evidence of her earnings, which are presently about $100,000 a year gross. Her assets consist of a dwelling house in Victoria Street, Deniliquin, having an estimated value of $435,000; a home unit in Yarraville, Victoria, having an estimated value of $365,000; a house property in Wanderer Street, Deniliquin, having an estimated value of $50,000; a Holden Commodore station wagon, having an estimated value of $35,000; household contents of $20,000; a timeshare at the Peninsula Resort in Bali, $25,000; superannuation entitlement in an estimated amount of $75,000.

35 Mrs Felicity Mitchell has the following liabilities,

Home loan $180,000

Investment loan $285,000

Personal loan $37,000

Credit card $25,000

Total $527,000

36 In addition, Mrs Felicity Mitchell has an interest in Oakleigh, as joint tenant with the Plaintiff, that half interest having an estimated value of $350,000. She recognises that there is a liability in respect Oakleigh, in consequence of the loan obtained by the Plaintiff from the ANZ Bank. Mrs Mitchell stated in her affidavit that she had expended her own money in amounts totalling $250,000 on improvements to Oakleigh, and that she is currently meeting interest payments on the loan moneys raised from the ANZ Bank. She stated that those interest payments were proving to be very onerous for her, and were contributing factors in the breakdown of her marriage to the Plaintiff. She also stated that she was effectively paying all the costs and expenses to maintain the two children of the Plaintiff.

37 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of the First Defendant, who was (apart from the two legacies of the $2,000 each to the two infant children of the Plaintiff) the sole object of the testamentary beneficence of the Deceased.

38 The First Defendant works five days a fortnight as a registered nurse. She suffers from arthritis, which limits her capacity for work. She also stated that she suffers from depression. The First Defendant’s husband, James Cressy Tucker, the Second Defendant, who is aged 60, is a veterinarian by profession, and works as a veterinary locum. He stated that he finds that work demanding, and wishes to reduce his workload, but is not financially able to retire.

39 The First and Second Defendants have the following assets, to which the following respective values (or estimated values) were attributed,

Residence at Wheelers Hill, Victoria $750,000

Property at Daylesford, Victoria $345,000

A leased motor vehicle, household furniture and

furnishings $30,000

Moneys on deposit $50,000

Combined superannuation entitlements $160,000

Motor vehicle $18,000

Total $1,053,000

40 The First and Second Defendants have the following liabilities,

Mortgage over Wheelers Hill property $286,000

Mortgage over Daylesford property $264,000

Creditcard $5,000

Citibank line of credit $17,500

Total $583,500

Net assets $780,500

41 The First Defendant has an annual net income of $20,800. The Second Defendant, from an annual gross income of $97,500, has a taxable income of $68,000. They have what is described as “net income” of $45,000, as well as rental income from the Daylesford property of $10,800. Their total net income is stated to be $83,800. (I find it difficult to follow their calculations, resulting in that figure of $83,800 as being the total net income of the Defendants. From my calculations, the total net income should be either $76,600 (being the totality of the net income of the First Defendant, the net income of the Second Defendant, and the income from the rental of the Daylesford property), or $99,600 (being the net income of the First Defendant, the taxable income of the Second Defendant, and the income from the Daylesford property).)

42 The First and Second Defendants gave evidence of their outgoings, in a total amount of almost $158,000 a year. They also gave evidence of their expected future expenses, by way of house renovations to the Wheelers Hill property in an amount of $82,000, and holidays costing them $4,000 a year.

43 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.

44 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

45 The Plaintiff as a son 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 First Defendant.

46 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance.

47 The High Court in Singer v Berghouse (at 209 – 210) said that 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.

48 It cannot be emphasised too strongly that an applicant for provision under the Family Provision Act has an obligation to place before the Court as fully and as frankly as possible all information concerning the financial and material circumstances of that applicant. In the instant case the Plaintiff totally failed to do so.

49 The Plaintiff’s evidence concerning his financial circumstances was completely unsatisfactory. Both in his affidavit of 30 January 2009 and in his oral evidence, the Plaintiff asserted that he was not receiving any income from Oakleigh. That evidence was not true. It emerged under cross-examination that the Plaintiff was receiving income from Oakleigh from a lessee, at least to 30 June 2008, and subsequently was receiving income by way of agistment from cattle upon that property, in amounts totalling $9,360 a year.

50 The Plaintiff was cross-examined concerning the partnership W G Mitchell & Co. He and his wife are the only members in that partnership. According to the partnership accounts, in 2008 the Plaintiff’s drawings were in an amount of $224,276. He could offer no explanation as to what he did with that amount.

51 The Plaintiff’s most recent income tax returns, both his personal return and the partnership return for 2009, disclosed that he had a taxable income of $148,000. That taxable income included interest and dividends, such interest being in an amount of $2,615. The Plaintiff could offer no explanation as to what fund had produced that interest.

52 In paragraph 21 of the aforesaid affidavit the Plaintiff said, “There is no water on the property”. However, in the most recent financial year the Plaintiff received a temporary water transfer of $18,525, which he was entitled to sell.

53 The Plaintiff under cross-examination adopted the attitude of largely disclaiming all detailed knowledge of his financial affairs. He cast responsibility for the preparation of the various income tax returns (for himself, for his wife, and for the partnership) upon his accountant, or upon his wife.

54 The Plaintiff under cross-examination was taken through various bank statements in respect to his bank account. He was totally unable to explain a considerable number of deposits and withdrawals in significant amounts.

55 After the Plaintiff had obtained the loan to pay out his mother in respect to her family provision claim, he obtained an additional advance of $55,837 from the ANZ Bank in June 2005, for the construction of a swimming pool on Oakleigh.

56 It also emerged in cross-examination that in 2005 the Plaintiff performed further extensions on the house property at Oakleigh. There was no reference to those expenditures in his affidavit evidence. In 2005, the Plaintiff and his wife as joint tenants purchased an investment property in Yarraville in Victoria, for $320,000. Subsequently, in May 2007 the Plaintiff transferred to his wife his interest in that property, consideration for the transfer being stated as “natural love and affection”. The Plaintiff (somewhat curiously) did not agree that that property was currently valued at about $380,000, saying that he had no idea of its present value, that being despite the fact that that figure was the current value which he attributed to it in his affidavit of 14 October 2009.

57 After their separation, the Plaintiff in 2008 contributed $215,000 towards the cost of the construction of a new residence for his wife in Victoria Street, Deniliquin. That amount of $215,000 comprised the proceeds of sale of part of the Plaintiff’s shareholding in Murray Irrigation Limited. That shareholding represented an entitlement to 705 megalitres of water owned by the Plaintiff in respect to Randleigh. The Plaintiff sold 400 megalitres of water from the Randleigh entitlement, for $215,000, and gave that sum of money to his wife. There was no reference to either of those transactions in the Plaintiff’s primary affidavit, of 30 January 2009.

58 The valuation in respect to the water appraisal of the Plaintiff’s water entitlement, being part of Exhibit AM3 to the Plaintiff’s primary affidavit, discloses the Plaintiff’s water rights at 18 August 2008 as being in the range of $255,000 - $260,000. However, it emerged in cross-examination that that was the value of the water rights remaining to the Plaintiff after he had sold rights to a total value of $215,000 in early 2008, and after he had given that sum to his wife towards the construction of her new residence in Deniliquin.

59 I have already observed that the evidence presented by the Plaintiff to the Court concerning his financial and material circumstances was completely unsatisfactory. I considered his evidence in that regard to be totally unreliable. Had it not been for the careful and meticulous cross-examination of the Plaintiff conducted on behalf of the Defendant in respect to the various income tax returns himself, his wife, and the partnership W G Mitchell & Co, and in respect to his bank statements, the Court would have been left not only with unsatisfactory and incomplete evidence concerning the Plaintiff’s financial and material circumstances, but with totally false and misleading evidence in that regard.

60 The evidence which did emerge concerning the Plaintiff’s financial and material circumstances certainly did not disclose any need on the part of the Plaintiff. He owns at least three significant assets, being two farming properties, and water rights appurtenant to each of those properties.

61 The farm business pays for most of the Plaintiff’s outgoings, including the interest on the loan to the ANZ Bank. As far as can be gathered from his totally unsatisfactory evidence, even after payment of all his debts and outgoings, the Plaintiff is left with a disposable income of $15,000 a year.

62 I have already observed that the Plaintiff largely disclaimed responsibility for and personal knowledge of the records relating to his finances, both his personal finances and those of the partnership, W G Mitchell & Co. He expressed ignorance of the details of his financial transactions. If the Plaintiff himself does not understand his financial position, it is not possible for him with accuracy or correctness to assert that he has need.

63 The evidence in this matter, especially the evidence which emerged under cross-examination of the Plaintiff, does not satisfy me that the Plaintiff has been left without adequate provision for his proper maintenance.

64 That conclusion is, of itself, sufficient to dispose of the Plaintiff’s claim.

65 But even if (contrary to my foregoing conclusion) I were to be satisfied that the Plaintiff had been left without adequate provision for his proper maintenance, the evidence certainly does not disclose any present relevant need which would justify the making of an order for provision in his favour. I have already referred to the voluntary transfer by the Plaintiff to his now estranged wife of a one half interest in Oakleigh, having a present value of between $350,000 and $375,000; his expenditure in relatively recent times of $55,000 towards the construction of a swimming pool upon Oakleigh, and his provision of $215,000 to his estranged wife in early 2008, for the construction of her new residence in Deniliquin. None of those transactions reveals any relevant need on the part of the Plaintiff. The foregoing transactions are objective facts. The rest of the Plaintiff’s financial transactions were largely clouded in an obscurity which in the present proceedings he did little or nothing to dissipate. Indeed, he disclaimed any responsibility for the preparation of his financial records and accounts. Neither did he recognise any obligation to be frank with the Court in regard to these important matters.

66 For completeness, I would state that, if (contrary to my foregoing conclusions) the Plaintiff had otherwise established an entitlement to an order for provision out of the estate of the Deceased, the financial and material circumstances of the First Defendant and Second Defendant are such that the competing claim of First Defendant upon the bounty of the Deceased would have had the effect of reducing or extinguishing any such order for provision.

67 The Plaintiff has a strong sense of grievance, possibly a legitimate one, against his late mother for contesting his father’s will, with the consequence of depriving him of some of the assets which the Plaintiff himself had spent a large part of his working life in consolidating and improving and which his father promised he would one day inherit. That sense of grievance soured the relationship between the Plaintiff and the Deceased during the period of the Deceased’s widowhood. The Plaintiff’s sense of grievance was exacerbated by the fact that it had been necessary for him to incur a significant debt in order to settle his mother’s claim against the estate of his late father. To the extent that the Plaintiff complains of the financial burden of that debt, secured by mortgage upon Randleigh and Oakleigh, it will be appreciated that it is within the Plaintiff’s own control and decision that he chooses to retain both of those properties. By selling either Randleigh (which he owns absolutely) or his one half interest in Oakleigh, the Plaintiff would be enabled to discharge the debt and extinguish the continuing interest payments to the bank. The Plaintiff chooses not to do so, stating that he needs “both properties to be able to make adequate income to pay the normal expenses in operating the farm, support myself and family and meet my commitments.”

68 In his primary affidavit the Plaintiff expressly stated his belief that he should at least be entitled to receive a sum of money from his mother’s estate that would enable him to discharge the mortgage debt. It should be emphasised that neither that belief nor the Plaintiff’s sense of grievance, whether or not justified, can of itself establish that he is entitled to an order for provision out of his mother’s estate.

69 It should also be appreciated that subsequent to the settlement of his mother’s claim the Plaintiff has not merely transferred to his wife a one half interest in Oakleigh and his one half interest in the Yarraville investment property, but has also paid to his wife $215,000 towards the construction of her new residence, and has expended an additional $55,837 (borrowed from the bank) towards the construction of a swimming pool upon Oakleigh, as well as making his wife an equal partner in W. G. Mitchell & Co. None of those transactions reveals any pressing need on the part of the Plaintiff. If it be asserted that, since the breakdown of his marriage, the Plaintiff was under an obligation to provide accommodation for his wife and children, then presumably the $215,000 which he paid for the construction of the new residence would represent a discharge of that obligation. There appears to have been no reason why he chose, in addition, to give to his wife the benefit of the one half interest in Oakleigh, worth between $350,000 and $375,000, and the one half interest in the Yarraville property, as well as making her his equal partner in the partnership.

70 It is not for the Court to tell a person how he should dispose of his assets or conduct his financial affairs. But, in the instant case, the foregoing dispositions of the Plaintiff’s assets are not consistent with his assertion that he has been left without adequate provision for his proper maintenance, and that he is presently in a situation of need.

71 The Plaintiff not having established that he has been left without adequate provision for his proper maintenance, his claim will be dismissed.

72 Accordingly, I make the following orders,

1. I order that the summons be dismissed.

2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.

3. The exhibits may be returned.

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LAST UPDATED:
4 March 2010