Robert John Norman Turner v Perpetual Trustees Australia Ltd

• Jurisdiction: Australian Capital Territory
• Judge: Gray J
• Judgment Date: 15 June 2001
• Court: Supreme Court of ACT
• Docket Number: No. SC 165 of 1999
• Date: 15 June 2001

[2001] ACTSC 56

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Gray J

No. SC 165 of 1999

Between:

Robert John Norman Turner

Plaintiff

and

Perpetual Trustees Australia Limited

Defendant

Counsel for the Plaintiff: Mr B Meagher

Counsel for the Defendant: Mr J Wilson

Singer v Berghouse (1994) 181 CLR 201

Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134

Re G Hall (Deceased) (1930) 30 SR (NSW) 165

Chapman v Elders Trustee and Executor Co [1971] SASR 63

( Brown v Brown unreported, Eames J, Supreme Court of Victoria, 7 July 1995)

Re Fulop deceased (1987) 8 NSWLR 679

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Re Dennis (deceased) [1981] 2 All ER 140

Re Abram (deceased) [1996] 2 FLR 379

Hoadley v Hoadley, ( unreported, New South Wales Supreme Court, Young J, 17 February 1987)

Family Provision Act 1969 (ACT), s 8, s 11, s 22

Family Provision Act 1982 (NSW), s 11

Administration and Probate Act 1958 (Vic), s 91

Trustee Act 1925 (NSW), s 45

Trustee Act 1957 (ACT), s 8

PROBATE — Family Provision Act 1969 (ACT) — plaintiff seeking provision from estate of testator for his ‘maintenance, education or advancement in life’ — regard to be had to the totality of the relationship — whether absolute grant appropriate.

EVIDENCE — s 22(1) Family Provision Act 1969 (ACT) — admissibility of testator's oral and written statements — limitations on such evidence.

ORDER

THE COURT PROPOSES TO ORDER THAT:

1. Pursuant to s 11 of the Family Provision Act 1969 (ACT), an amount of $30,000 by way of a legacy to the plaintiff and an amount of $450,000 by way of capital be held on trust by the executor of the estate (if that trustee is willing to act or such other if not) for the period of the plaintiff's life.

2. The income be held on protective trusts for the plaintiff's life on condition that when the trust comes to an end any capital then remaining be divided as to one half to Jennifer Cole or her descendants and as to the remaining one half equally to John Douglas and Gerald Raymond Solomon or their descendants.

3. All costs be paid out of the estate.

1 This is an application pursuant to s 8 of the Family Provision Act 1969 (ACT) (the Act). The plaintiff, Robert John Norman Turner, seeks an order for provision out of the estate of his father, David Roy Jephson Turner, who died on 13 March 1998. The plaintiff was born on 28 July 1973. He is the only child of the deceased. His father divorced his mother in 1975 after some two years of marriage. Probate of his father's will dated 27 May 1994 was granted on 24 June 1998. The will appointed the defendant, Perpetual Trustees Australia Limited, as the trustee and left one half of the estate to a friend, Jennifer Cole, and the other half to be divided between his aunt, Lois Solomon, and his cousins, John Douglas Solomon and Gerald Raymond Solomon, or their children should they predecease him. His cousins remain as the beneficiaries of their half share.

2 At the date of the deceased's death, the deceased's estate was valued at $744,815.46. As at 13 September 2000, the assets of the estate were valued at $866,468.46.

3 No provision at all was made for the plaintiff in the deceased's will. The plaintiff, as a child of the deceased, is a person entitled to apply to this Court for provision out of the estate. A provision is only to be made if the Court is satisfied in consideration of the criteria set out in s 8(3) of the Act that ‘as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available …’ (s 8(2) of the Act).

4 The criteria are set in s 8(3) as:

• ‘(a) the character and conduct of the applicant;

• (b) the nature and duration of the relationship between the applicant and the deceased;

• (c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

• (d) any contributions (including any in the capacity of home-maker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

• (e) the income, property and financial resources of the applicant and the deceased;

• (f) the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

• (g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

• (h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

• (i) the terms of any order made under section 15 of the Domestic Relationships Act 1994 with respect to the property of the applicant or the deceased;

• (j) any payments made to either the applicant or the deceased by the other, pursuant to an order of the Court or otherwise, in respect of the maintenance of the other person or any child of the other person;

• (k) any other matter the Court considers relevant.’

5 In this case, the defendant sought that particular consideration be given to the criteria concerning the character and conduct of the applicant and the nature and duration of the relationship between the applicant and the deceased. For his part the plaintiff sought to stress the matters involving s 8 (e), (f), (g), (h) and (i).

6 At the outset Mr Meagher, for the plaintiff, referred to Singer v Berghouse (1994) 181 CLR 201 as to the approach that I should take. In that regard the majority of the High Court said at 209:

‘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.’

7 The New South Wales provision in that case was framed in terms of whether the provision was inadequate. The provision with which I am concerned addressed the question of whether adequate provision has been made. That distinction was averted to by Gaudron J in Singer (supra) at 225:

‘The question under s 9(2)(a) is whether ‘the provision (if any) made … by the deceased person … is … inadequate’. That is different from the question whether adequate provision has been made. If the latter were the question posed by s 9(2)(a), the fact that provision had not been made might well lead to the conclusion that it was not adequate. But that is not the case when the question is whether the provision (if any) is inadequate. That is a question that can and must be answered regardless of whether provision has been made. And as earlier indicated, the answer to that question determines whether or not an order can be made under s 7.’

8 In this case no provision was made and it seems to me that I may more readily find that no adequate provision had been made depending more particularly on the totality of the relationship between the plaintiff and deceased and the relationship between the deceased and other persons having legitimate claims. In any event, the plaintiff's present parlous financial situation and the size of the estate would indicate that absent some really compelling factor disentitling the plaintiff that some provision should be made for him. Indeed, I did not understand Mr Wilson, counsel for the defendant, executor to argue otherwise.

9 The plaintiff is now 27 years of age. When his parents separated, a year and a half after his birth, he lived with his father who was awarded custody. In his early teens he lived for some two years with his mother at Tuggeranong. He was sent to boarding school in Bowral and spent a short time at college in the ACT before leaving school at 16 with a year 10 certificate. He obtained roof tiling work. That was in 1989. When the plaintiff was 18, his father lent him money to buy a truck which he used in his roof tiling business. The plaintiff had formed a relationship with a woman of whom his father appears to have disapproved. This was a continuous aggravation to his father as it seems was the plaintiff's attitude to his father who seems to have expected much of his son by way of presence and physical assistance.

10 The plaintiff's uneasy relationship with his father was compounded by his father's poor health. His father had serious RSI of his wrists resulting from overuse of computers in his employment with the Department of Immigration. He had a hip condition affecting his mobility. He also suffered from throat cancer and was hospitalised for that condition in 1995 and thereafter from time to time. Between 1992 and 1994 his relationship with his son deteriorated and culminated in him repossessing the truck for which he had provided the finance and his son leaving his father's home.

11 The repossession of the truck appears to have been an act of retaliation for what the plaintiff's father saw as his son's ‘desertion’ of him. It is worth noting that at this stage the plaintiff's girlfriend was pregnant and clearly his business was not prospering. The plaintiff had not made any repayments of the monies his father had advanced for the truck but, having regard to all the circumstances, it can hardly be thought of as a commercial transaction. Rather it was withdrawal of the assistance that his father had been prepared to provide on the basis that it might be repaid when the plaintiff was in a position to do so.

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