WILSON and ANOR v WRIGHT [1995] NSWCA 520

WILSON and ANOR v WRIGHT

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and SHELLER JJA 3 November 1994, 21 March 1995

FAMILY PROVISION — PARTIES — QUANTUM The appellants appealed against the inadequacy of orders under the Family Provision Act for legacies of $10,000 each out of their mother's actual and notional estate, and against the dismissal of their claims against their father's estate — The respondents were their sister and her husband — Their father died on 6 June 1989 leaving his estate to their mother who died on 4 August 1989 leaving her estate to the daughter — father and mother gifted their principal asset a house to the daughter on 5 September 1987 — sons had been wholly of partially dependent on parents for accommodation — Held: (1) Orders made to ensure that both estates properly represented before Court. (2) Orders under appeal were manifestly inadequate and must be set aside. (3) Further evidence should be received, Warr v Santos (1973) 1 NSWLR 432 applied. (4) There was no evidence of the respondents' financial positions. (5) Appeals allowed and orders made for increased provision for each appellant.

Kirby P I agree with Handley JA.

Handley JA These are appeals by Leslie and Colin Wilson against the inadequacy of orders under the Family Provision Act made by Master Windeyer out of their mother's actual and notional estate, and against the dismissal of their claims against their father's estate. The appellants were 62 and 59 at the date of trial. The respondents are their sister and her husband.

The father died on 6 June 1989 leaving a will dated 10 September 1987, probate of which was granted to the appellant Colin on 13 June 1990. The father left the whole of his estate to his wife. The Master found that his actual estate was worth about $10,000. The mother died on 4 August 1989 leaving a will dated 31 January 1972 giving her whole estate to the first respondent. Probate of her will was granted in Queensland to her son-in-law, the second respondent and the husband of the first respondent. There has been no reseal in New South Wales. Colin obtained a grant of administration in this State "for the purposes only of an application being made under the Family Provision Act 1982 by him". A grant in this form is inappropriate and ineffective since the same person cannot be both plaintiff and defendant in the one proceeding. The value of the mother's actual estate was not established with any precision.

The father and mother formerly owned 43 The Esplanade, Ettalong (The Esplanade). At the date of trial this was worth $290,000. By transfer dated 5 September 1987 they transfered it by way of gift to the first respondent. This property was their major asset.

The Master dismissed the plaintiffs' claims against the father's estate but ordered that their costs of those applications be paid out of the estate or notional estate of the mother. He ordered that Leslie receive $10,000 from his mother's estate and that Colin receive the same together with the amount of any debt due by him to that estate. He designated a one half share in The Esplanade as notional estate of the mother.

2 UNREPORTED JUDGMENTS

It will be apparent from the foregoing that the record in the Equity Division and in the appeal was not in order. Colin as plaintiff was seeking additional provision from the estate of his father of which he was sole executor. In accordance with long established practice it was necessary for some other party to be appointed to represent the estate. No such appointment had been made. Probate of the mother's will had not been granted in New South Wales and the Queensland grant was without effect in this State. See Nagel v Hough (1927) 27 SR (NSW) 418 and Boyd v Leslie (1964) VR 728. In an attempt to overcome this difficulty Colin had obtained a grant of letters of administration in her estate but this was ineffective. Fortunately, the plaintiffs had joined their sister and her husband as defendants, no doubt because she was the owner of The Esplanade which was claimed to be notional estate of the father and mother, and he was the Queensland executor of the mother's estate. At the start of the hearing the Court drew the deficiencies in the record to the attention of counsel and Mr Gruzman, who appeared for the respondents, sensibly agreed to orders being made appointing his clients to represent the two estates. The Court made those orders pursuant to SCR Pt8 R8, R15 and R16 and the appeal proceeded.

Neither the father nor the mother made any testamentary provision for the appellants. The mother said in her 1972 will that she had made no such provision because the appellants "have and understand that their interest in my will has been finalised before and to their satisfaction by gifts and presents". The Master found implicitly that such pre 1972 provision was inadequate for the proper maintenance of the two sons and made the orders referred to. The respondents did not challenge the Master's findings that the sons had established an entitlement to orders or the orders designating a half share in The Esplanade as notional estate of the mother.

The Master's reasons set out the relevant family history, the events leading up to the transfer of The Esplanade to the daughter, the value of the actual estates of the parents, and the needs of the two sons. These findings were not challenged. Colin and his wife are invalid pensioners and at the date of trial their pensions totalled $673 a fortnight. Leslie lived with them and contributed $70 per week board and the Master considered he was paying his way. The evidence did not disclose the full living costs of Colin and his wife but the Master said "Obviously they would not have a great deal to spare". Colin had no assets other than furniture and his car. The Master said in relation to his case:

[1] "Apart from the financial details there is no evidence of any need... He has not been used to an extravagant life and has little in the way of needs."

Leslie was also a pensioner receiving $352 a fortnight which covered his outgoings. He had no assets of any substance and no liabilities. The Master said in relation to Leslie:

[2] "He gives no evidence of any need apart from the fact that he says he has no savings at all. It is not really suggested that his accommodation is at risk. I do not think that either the mother or father if able to do so was under an obligation to provide accommodation for Leslie but on the evidence he can do so himself. The daughter of course owned The Esplanade but apart from this nothing was known about the financial position of herself or her husband although both had sworn affidavits."

As the Master said: "It follows that if it is proper to make an order then there is no difficulty in doing so".

URJ WILSON and ANOR v WRIGHT (Handley JA) 3

The evidence of Colin disclosed that he was living with his wife and Leslie in tenanted property for which he was paying $170 per week rent. The clear inference is that he only held a short term lease but the length of his tenure was not disclosed. Between 1982 and 1988 he lived with his wife at 9 Kendall Road, Empire Bay owned by himself and the mother as joint tenants subject to a bank mortgage. The mother provided the whole of the initial equity. The father lived with them there for a time in 1987 and 1988. Colin sold the house in March 1988. It was built on low lying land, which was subject to frequent flooding. He said that after the Council built up the road in front the house was constantly damp. In 1987 he contracted asthma and emphysema, conditions which must certainly have been aggravated, it not actually caused, by the damp conditions in the house.

After the sale was completed Colin, his wife and the father went to live in tenanted property. The net proceeds were spent by Colin on buying now furniture and household effects to replace those ruined by the damp conditions at Empire Bay, in helping his daughter who had a drug problem, and later in paying legal expenses in connection with these proceedings. He did this although the mother was entitled to at least half the money. In June 1988 he noticed that the top flat at The Esplanade then owned to his knowledge by the sister was empty. Leslie was living in the bottom flat. Colin, his wife and the father moved into the top flat and he and his wife remained until August 1989 when they left as a result of eviction proceedings brought by the sister. Leslie also moved out at that time, having lived there since 1973.

Leslie therefore had been dependent on his parents for accommodation at The Esplanade from 1973 until they transfered the property to the daughter in 1987 and he continued to live there until after their deaths. Colin had also been partially dependent on the mother for accommodation at the Empire Bay property from 1982 until 1988 and after a short time had then lived in The Esplanade until after his parents' deaths.

Both sons had therefore been wholly or partially dependent on their parents for accommodation until shortly before their deaths and their continuing need for secure accommodation was obvious. It is true that neither expressed this need but it was a necessary implication from the evidence as a whole and although unstated, was perfectly clear. Leslie was then dependent on Colin and his wife for accommodation and if anything happened to them he would be homeless and committed to spending a large proportion of his pension on rent, assuming one bedroom accommodation for letting is available around Woy Woy where they now live. Colin was likewise in a precarious position having no security of tenure and committed to spending a large proportion of the combined pensions of his wife and himself on rent.

In the light of the needs of both appellants for more secure accommodation the Court ruled during the hearing that it would set aside the orders made by the Master and undertake the necessary reassessment. In these circumstances, following Warr v Santos (1973) 1 NSWLR 432, the Court ruled that it would receive further evidence sought to be relied upon by the appellants.

This comprised affidavits by the appellants and by an estate agent. Leslie stated that his pension was then $191 per week, he paid his brother $60 per week for board and used the balance for living expenses.

Apart from the legacy ordered by the Master he had $120 in cash and in the bank. Colin stated that he and his wife received a combined pension of $343 per week, that they paid $160 per week rent and that their combined expenditure was

4 UNREPORTED JUDGMENTS

about equal to their income. His assets comprised his furniture and household effects, a motor vehicle, $300 in cash and the legacy ordered by the Master. Both appellants had outstanding liabilities for legal costs incurred in the proceedings and the benefit of orders for costs.

Colin's affidavit showed that the appellants had learned in February 1994 that their sister was proposing to sell The Esplanade. They commenced proceedings in the Equity Division to restrain her from selling.

On 11 April Brownie J made orders authorising its sale but required the proceeds to be retained in the respondents' solicitor's trust account. The net proceeds are now held pursuant to the Judge's order.

The estate agent's affidavit established that the average price of a two bedroom home in the Woy Woy area in October 1994 was between $120,000 and $140,000. The parties agreed in informing the Court that after payment of various amounts to the appellants and their sister pursuant to the orders of Brownie J the respondents' solicitors retain approximately $197,000 invested and bearing interest. The respondents have received claims for costs of the proceedings at first instance on behalf of Leslie in the sum of $18,006.83 and on behalf of Colin in the sum of $14,875.71 but such costs had not yet been either taxed or agreed.

The further evidence confirms the needs of the appellants for secure accommodation and the ability of the Court to satisfy those needs by appropriate orders. There is still no evidence from the respondents of their financial position and therefore there is no reason why the Court should not make such orders. The Master dismissed the sons' claims against their father's estate and designated a half share in The Esplanade as notional estate of the mother. Prior to the transfer of that property by way of gift to the daughter it had been owned by the parents as joint tenants. There may be some difficulty in designating the whole of this property as notional estate of the mother since she only ever owned a half interest. The Court should therefore order that the other half interest previously owned by the father be designated as his notional estate. Since The Esplanade has been sold orders should also be made designating the proceeds of sale and interest thereon retained by or under the control of the respondents' solicitors as notional estate of the father and mother. In my opinion the following orders should be made: -

3] 1. Appoint Nerida Valerie Wright and Ronald John Wright to represent the Estates of Harry Amos Wilson and Marjorie Evelyn Wilson.

2. Appeals allowed.

IN MATTER E.D 5714/1990

4] 3. Set aside O.1, O.4(b) and O.5 made by the Master. 4. In lieu thereof order:

5] (i) that a one half share in the proceeds of sale of the property 43 The Esplanade, Ettalong (Certificate of Title Volume 4445 Folio 64) and interest thereon retained by or under the control of the respondents' solicitors be designated notional estate of Harry Amos Wilson,

6] (ii) that the appellant receive from the estate or notional estate of Harry Amos Wilson a legacy of $40,000 to bear interest at Supreme Court rates after 28 days from the date of these orders.

(iii) that a one half share of the proceeds of the sale of 43 The Esplanade, Ettalong and interest thereon retained by or under the control of the respondents' solicitors be designated notional estate of Marjorie Evelyn Wilson,

URJ WILSON and ANOR v WRIGHT (Sheller JA) 5

[7] (iv) that the appellant receive a legacy of $52,535.40 from the estate or notional estate of Marjorie Evelyn Wilson, credit to be given for the sum of $12,535.40 already paid and the balance to bear interest at Supreme Court rates after 28 days from the date of these orders.

5. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act.

IN MATTER E.D 2163/1991

[8] 6. Set aside 0.2, 0.4, O.5 and O.7 made by the Master. 7. In lieu thereof order:

[9] (i) that a one half share in the proceeds of sale of the property 43 The Esplanade, Ettalong (Certificate of Title Volume 4445 Folio 64) and interest thereon retained by or under the control of the respondents' solicitors be designated notional estate of Harry Amos Wilson.

(ii) that the appellant receive a legacy of $40,000 from the estate and notional estate of Harry Amos Wilson, to bear interest at Supreme Court rates after 28 days from the date of these orders.

(iii) that a one half share of the proceeds of the sale of 43 The Esplanade, Ettalong and interest thereon retained by or under the control of the respondents' solicitors be designated notional estate of Marjorie Evelyn Wilson,

(iv) that the appellant receive a legacy of $52,535.40 from the estate and notional estate of MarJorie Evelyn Wilson, credit to be given for the sum of $12,535.40 already paid and the balance to bear interest at Supreme Court rates after 28 days from the date of these orders.

8. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act.

Sheller JA I agree with Handley JA.

Appeals allowed. Orders made.

COUNSEL:

Appellant: C HARRIS

Respondent: A GRUZMAN

SOLICITORS:

Appellant: TONKIN DRYSDALE PARTNERS Respondent: WILLIAMS PALMER NOSS