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Supreme Court of New South Wales |
Last Updated: 14 April 2011
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Decision:
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1. The plaintiff receives a legacy of $200,000 out
of the estate of the deceased.
2. The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis be paid or retained out of the estate of the deceased. 3. Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders. |
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Legislation Cited:
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Cases Cited:
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Benney v Jones (1991) 23 NSWLR 559
Ford v Simes [2009] NSWCA 351 Gorton v Parks (1989) 17 NSWLR 1 Hughes v Hughes (Court of Appeal, 6 June 1989, unreported) Nicholls v Hall [2007] NSWSC 356 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales (Scales' case) [1962] HCA 19; (1962) 107 CLR 9 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40 Vigolo v Bostin [2005] HCA 11 Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported) |
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Deceased's will
" I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time".
Estate
History
Eligibility
"59 When family provision order may be made
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
...."
"The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". ....
....
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 Ltd [1938] AC, at p 476. 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'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 [1951] HCA 44; (1951) 82 CLR 645, 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."
Marion's situation
Gwendolene Keep
"I have been morbidly obese since 2006. I currently weigh approximately 180 kilograms. My weight causes severe back pain. I take Panamax for this pain.
I have been suffering from Diabetes since approximately 1990. My diabetes is controlled by medication. I take Diaformin and Diamicron.
I developed stage 1 cancer of the uterus in 2003. Doctors performed a hysterectomy in 2003 which fully removed the cancer. I was given a clean bill of health in relation to the cancer following the operation.
I have had high blood pressure since the 1990s. My blood pressure is controlled by medication. I take Monoplus, Isoptin and Jezil.
I have Gout, which developed during the 1990s. The gout is controlled by medication. I take Zyloprim.
I am incontinent and have been since 2008. I need regular supplies of pads.
I have high levels of potassium in my body. Doctor's are unsure what causes this but fear that it may affect my heart. I take Lasix to reduce these potassium levels."
Graham Keep
"44. ...
a) Obesity
b) I have been suffering from Diabetes since approximately 1982. Initially my diabetes was controlled by tablets and diet. In 1994 I began to require 4 insulin injections per day; this has now increased to 6 injections per day. I require 3 injections of Lantus Insulin per day and 3 injections of Nova Rapid Insulin per day.
c) My 3 rd and 4 th vertebrae are 3mm out of line. This condition was diagnosed in approximately 2004. Doctors say this condition is due to the degeneration of my spine. An Assessor from Cenrelink told me that I cannot lift more than 15 kilograms. This condition limits the variety of jobs that I can do. It also prevents me from doing any heavy duty housework.
d) I suffer from the narrowing of my spinal canal in my lower back. This ailment was diagnosed five months ago, in early 2010. This condition is controlled by medication.
e) I have had high blood pressure for many years. My blood pressure is controlled by medication. I take Physioten.
f) I suffer from Depression. My depression was diagnosed in August 2009, shortly following the death of the deceased and a number of other close friends.
g) I have Gout, which developed during the mid 1970s. The gout is controlled by medication. I take Allosig. I have not had an attack of gout for over 30 years.
45. I spend approximately $60.00 per month on medication. This is a discounted rate as I receive Centrelink benefits.
46. I also take a number of other medications daily such as Mono Plus, Lipitor, Atacand, Visken and Amlo 10."
Estrangement between Marion and the deceased
"Q. You did not take Tammy, who was born in 1976, to see your parents?
A. No.
Q. You did not tell them you were pregnant and you had Tammy?
A. No.
Q. You did not tell them that Tony was born in 1978?
A. No.
Q. You did not take him to see your parents?
A. No.
Q. Christopher was born after your dad passed away?
A. Yes.
Q. You did not take him to see your mother?
A. No.
Q. These were deliberate decisions on your part not to take your children to see your parents and, in the case of Christopher, to see your mother, correct?
A. Yes.
Q. Are you comfortable that your parents knew through the Grapevine you had had these children?
A. Yes.
Q. At that time did you believe your parents might have wanted to see their grandchildren?
A. Yes.
Q. And you deliberately chose not to take your children to see your parents in order to inflict grief on them, correct?
A. No.
Q. You knew it would hurt them if you did not take your children to see your parents, correct?
A. It would.
.......................
Q. You agree you did not desire to have a closer relationship with your mother from 1970 onwards?
A. I would have liked to.
Q. You say that now, but up until her death you did not want that, did you?
A. Yes.
Q. You did not tell her that, did you?
A. I told her.
Q. When did you tell her?
A. In hospital.
Q. On the day she died?
A. Yes.
Q. When she was slipping in and out of consciousness?
A. Yes.
Q. You did not attempt from 1973 to 2009 to foster a closer relationship with your mother, did you?
A. No.
Q. You knew where she lived?
A. Yes.
Q. You did not attempt to ring her up?
A. No.
Q. You did not send her birthday cards, did you?
A. The same thing happened to her, she didn't do it to me.
Q. You did not send her Christmas cards?
A. No.
Q. For a long time after your parents did not agree to your marriage to Robert you hated them, didn't you?
A. No.
Q. You turned your back on them, didn't you?
A. Yes.
Q. And I think it is fair to say you agree up to your mother's death you never ever did not turn your back on them, did you?
A. No.
Q. You are not concerned about whether your mother was upset with the lack of contact she had with you, were you?
A. I was.
Q. That was minor compared to what you believed was unfair treatment by your mother?
A. Yes."
"This conclusion directly raises the question of whether the word 'ought' in s 7 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 s 3 of the 1916 Act and s 7 and s 9 of the present Act, that 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 par (a) and par (b) on the one hand and par (c) and par (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 spoken of in s 3 of the 1916 Act and s 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 as 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 Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 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 (at 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 that was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s 7 of the present Act of the word 'ought' in replacement of the words from s 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 par (c) and par (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 applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case."
"Her 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 earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added)
"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's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."
"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 facie or at any stage. It is a discarded categorisation."
"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."
"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 acknowledgment of the obligations or of the child appears to me to be an idea from a distant 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 seem to have been legal 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 or 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."
"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. ..."
"In Singer's case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and 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 to have been made. At p 209 the Judges point 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, references 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'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."
"In Fraser's case, Kirby P at p 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 judgment under appeal really amounted to little more than a shorthand expression for the lengthier 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 Court's reference, in the footnote to what Murphy J said earlier (p 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's suggested 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 p 42, 'the point made in the judgments 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 sufficiently 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 courts, 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."
"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 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 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 further provision for the applicant..."
"112. 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 s6(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."
"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 lack of competing claims), a court could find that 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 "of very great importance in morality". We agree with Bryson J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; (1962) 107 CLR 9 at 18-20, as conforming to changing 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 361 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:
Her 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 ten 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, that 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 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."
"Q. You married your husband Robert when you were 19?
A. 20. Actually 20 3/4, 13 November 1971 and the March after I would've turned 21.
Q. You were 19 when you asked your parents for their consent to your marrying Robert?
A. Yes.
Q. They said "we can't afford it"?
A. Yes.
Q. They also said they did not like the idea because Robert is going into the Army and he is going to be posted elsewhere. They said that, didn't they?
A. Yes.
Q. Did you regard that as reasonable on their behalf, that they did not agree to you being married at 19?
A. I was not 19, I was 19 was when I got engaged, I was 20.
Q. You understood your parents position, that they did not agree because they could not afford the reception and they had concerns about Robert going into the army overseas?
A. I agree with that and I showed them my bank account, and I said to mum "if you haven't got the money there is the money, I have saved up." I showed them my bank book and I said you can pay that towards it.
Q. You had $400 in the bank?
A. Yes, and that was big money back then.
Q. What did they say, we don't agree to you getting married at this stage?
A. They actually didn't say anything about getting married. Robert and I asked.
Q. Did they try and change the topic?
A. Yes.
Q. You ended up starting court proceedings against your parents for consent?
A. Yes.
Q. Whose idea was that?
A. my husband and myself. My boyfriend at the time was in the Army. He was going to be posted to Singapore and if we were married I could have gone with him and I thought it would be a good idea. It would have been nice to actually go over, a trip of a lifetime.
...
Q. This is a strong position at 19, to take your parents to court?
A. I was not 19, I was 20, and at 20 I had a full time job.
Q. This was a very strong decision at 20, to take your parents to court?
A. Are you going to say if you had a child you are going to stop them from being married?
Q. It was a difficult decision, wasn't it?
A. No, because I loved him at that stage.
Q. You were put to a choice, Robert or my parents, that is what it was all about, wasn't it?
A. My mother said one day to me "Gwen is the eldest, she needs to be married before you."
Q. You were put to that choice, weren't you?
A. Yes.
Q. Robert or my parents and you chose Robert over your parents?
A. Yes.
Q. That was a big decision?
A. Yes.
Q. And a decision which you have abided by from the age of 20 to the death of your mother in 2008, correct?
A. Yes.
Q. How old were you when you left home?
A. 20.
Q. You have never forgiven your parents for them not agreeing to you marrying Robert?
A. I have forgiven them.
Q. You have for given them?
A. Yes.
Q. When did you forgive them?
OBJECTION; ALLOWED.
Q. When did you forgive them?
A. -I forgive dad when I went to see dad in the nursing home before he passed.
Q. In 1986?
A. Yes.
Q. When did you forgive your mother?
A. I forgive her the day I went down to see her in the palliative care in Kogarah."
[71] It is one thing to make provision for a child, even an adult, where the court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales [1962] HCA 19; (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.
[72] It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.
Marion's needs
Conclusion
Orders
1. The plaintiff receives a legacy of $200,000 out of the estate of the deceased.
2. The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis be paid or retained out of the estate of the deceased.
3. Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
**********
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