Supreme Court New South Wales

• Medium Neutral Citation: MATHER v MATHER [2012] NSWSC 1142
• Hearing dates: 17, 18 September 2012
• Decision date: 20 September 2012
• Jurisdiction: Equity Division
• Before: Associate Justice Macready

Decision

Parties to bring in Short Minutes

• Catchwords: FAMILY PROVISION - application by adopted son of deceased for further provision - no provision made for plaintiff in will of deceased - no dispute that plaintiff is an eligible person and should receive further provision - large estate- order for further provision made
• Legislation Cited: Succession Act 2006 NSW; Family Provision Act 1982 NSW
• Cases Cited: Singer v Berghouse (1994) 181 CLR 201; Wentworth v Wentworth, Estate of G M Wentworth (unreported 14 June 1991); Kay v Archbold [2008] NSWSC 254; McGarth v Eves [2005] NSWSC 1006; Shearer v The Public Trustee NSWSC (unreported 23 March 1998); Gorton v Parks (1989) 17 NSWLR 1; Bosch v Perpetual Trustee Co Limited [1938] AC 463; Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645; Foley v Ellis [2008] NSWCA 288; Palmer v Dolman [2005] NSWCA 361; Wheatley v Wheatley [2006] NSWCA 262; Mayfield v Lloyd-Williams [2004] NSWSC 352; Lloyd-Williams v Mayfield [2005] NSWSC 189; Re Buckland [1966] VR 404
• Category: Principal judgment
• Parties: Andrew Sinphet MATHER by his tutor Kerrie Patricia MATHER (Plaintiff); Christopher Andrew MATHER (1st Defendant); Howard Louis MATHER (2nd Defendant)
• Representation: L Ellison SC (Plaintiff); J B Whittle SC with B Townsend (Defendants); TressCox Lawyers (Plaintiff); Dettmann Longworth Lawyers (Defendants)
• File Number(s): 2010/00361681

Judgment

1 HIS HONOUR: This is an application under the Succession Act 2006 in respect of the estate of the late Donald Martyn Mather who died on 4 November 2009, aged 57. The deceased was survived by his adopted son, the plaintiff in these proceedings, and his former wife, who is the tutor of the plaintiff. The defendants are the deceased's brothers, who are his executors.

Last will of the deceased

2 This was made on 4 September 2009 and appointed his two brothers as executors. It gave the deceased's superannuation to his mother and gave the residue to his brothers Christopher and Howard equally. No provision was made for the plaintiff. In a letter which was signed the same day as his will, the deceased recorded his reasons for not including his son as a beneficiary in the terms of his will. The letter was in this form:

"4 September 2009 XXXX

WATSONS BAY

NSW 2030

TO WHOM IT MAY CONCERN

I wish to record my reasons for not including Andrew Sinphet Mather as a beneficiary under the terms of my will of 4 September 2009 as follows:

1. In July 2006 my marriage to Andrew's mother ended since which time I have tried to maintain a relationship with Andrew with intermittent success. Ultimately Family Court Consent Orders were entered into under which I conceded long term care and the majority of time to be spent by Andrew with his mother which I believed was the best outcome to avoid further conflict involving Andrew, his mother and myself.

2. In July 2008 relationship with Andrew broke down completely when he reported to the police that I had assaulted him and that he wanted me charged. In fact, it was Andrew who had assaulted me resulting in a stab wound to my arm. Andrew persisted with this story for very many months but ultimately failed to turn up at court to give evidence at the hearing resulting in dismissal of the charges and a costs orders in my favour.

3. Since that time I have made occasional attempts to restore relations by text messages on his birthday and regarding his grandmother's serious medical condition. He has rejected my approaches clearly expressing the wish to have nothing more to do wish me.

4. Andrew is an only child and his mother is CEO of Macquarie Airports and extremely wealthy. Andrew has been entirely maintained by his mother since his relationship with me has broken down. I anticipate that his mother will meet all Andrew's needs in life until he is independent and that he will ultimately inherit a very significant interest from her estate.

5. I do not believe that anything I might have left to Andrew would make any different to his life.

Yours faithfully

[deceased's signature]

Donald Martyn Mather"

The estate of the deceased

3 This has been reduced to cash after the sale of the deceased's Watsons Bay home. The amount held is $2,338,870. There are costs incurred by the parties. The defendants' unpaid costs are $82,000 and the plaintiff's costs, $113,814. This leaves a net estate of $2,143,056. There is also some superannuation, which can be taken in two different ways. Either the plaintiff can take a fortnightly payment of $251.51 from the date of death until he either gets to 25 or ceases an approved course. The alternative is that if he does not take that opportunity, the sum of $103,728.57 would be paid to the estate.

Family history

4 The deceased and his wife Kerrie married in December 1985. The plaintiff was born in Thailand in July 1993. He was adopted by the deceased and his wife in May 1998 and then came to Sydney. At the time of his arrival, he spoke no English. From shortly after his arrival until December 1999 he was schooled at Kincoppal, Rose Bay from kindergarten to Year 1.

5 On 10 September 2000 the deceased made a will in which he gave all of his estate to his wife Kerrie, with a substitution to his son Andrew if she should predecease.

6 Andrew continued his education at Paddington Public School from 2000 to 2002. He then in 2003 moved to Scots College where he completed Years 4 to 7, and left in 2006. The deceased by this time had retired from his employment as a teacher and that occurred in 2004.

7 Unfortunately, in July 2006 the deceased and his wife Kerrie separated. At this stage the plaintiff was asked to leave Scots. He then went to Cranbrook, where he remained until 2011 and he completed Years 7 to 12. He was a weekly boarder in Years 7 and 8.

8 There are other wills made by the deceased, one on 27 September 2006. The deceased left a quarter share of his estate to each of his brother Christopher, his brother Howard, his mother Patricia and his son Andrew. On 5 December 2006 he changed it to provide that his mother received his superannuation with the residue passing to his two brothers, his mother and the son in equal shares. The actual divorce between the deceased and his wife Kerrie occurred on 14 October 2007.

9 In July 2008 there was the incident between the deceased and the plaintiff, which is referred to in the note of the deceased, which I have set out above. The charge, which followed that incident, was dismissed on 23 April 2009. On 19 November 2008, because of the state of the deceased, the Family Court appointed a guardian to conduct the Family Court litigation on behalf of the deceased. That guardian was his brother Christopher. A final settlement was achieved in March 2009. It was after that that the deceased made his will, which is the final will to which I referred above. He died, as I have said, on 4 November 2009, aged 57.

10 These proceedings were commenced within time. At that stage the plaintiff was under 18. On 15 August 2011 Brereton J ordered that Kerrie Mather continue as a tutor of the plaintiff notwithstanding that he is no longer a minor. Probate was granted on 13 September 2011. On 22 July 2012 Patricia Mather (the mother of the deceased and the defendants) died, leaving the whole of her estate to the defendants equally. Each will receive $360,000 from the estate.

Eligibility

11 The plaintiff is clearly an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take. These comments are equally applicable to claims under the Succession Act 2006. At page 207 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 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, 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

12 The plaintiff is 19 years of age, single and lives with his mother. His assets at the moment consist of a car worth $14,000, cash in the bank of $3 and golf clubs worth $2,000. He also has 500 shares in Sydney Airport Corporation, which are held by his mother in trust for him. However, they are of little value at the moment because they cannot be dealt with until such time as his mother ceases her employment as the chief executive officer of that corporation. He owes his mother $14,295 as a result of her advancing him the purchase price for the purchase of his car.

13 From time to time he gets sporadic income of no great substance, from doing jobs such as delivering pizzas, working as a bartender or a glass boy. Some of these do not seem to continue.

14 The plaintiff has been supported since the separation of his parents by his mother. As I have said, she is the chief executive officer of Sydney Airports Ltd, earns a very large salary and is in a very comfortable position financially.

15 I mentioned that the plaintiff had no schooling before coming to Australia aged 5 years. When he arrived, as I have said, he had no English. His time at school has been difficult. He moved from Kincoppal to Paddington Public School so he could have some special assistance with his difficulties. He had to leave Scots College because of disruptive behaviour. He then went to Cranbrook School, who were able to assist him in a somewhat better way.

16 Evidence has been given by Dr Gary Banks, a clinical psychologist. In a detailed report he dealt with many aspects of the plaintiff's present abilities and future prospects and needs. There was nothing to suggest that he would have any significant difficulty with the tasks of daily living.

17 Presently he lives at home with his mother and is attending a two-year course to obtain a Diploma of Sport Development at Bonnie Doon Golf Club. Although he sat for the HSC, he had results for only three courses, being Design and Technology; English; Personal Development, Health and Physical Education. He did not apply for a ranking for university and his results would not have made him eligible.

18 He has, however, proved to be good at sport and his present course is aimed at his chosen career, which is to become a professional golfer.

19 Dr Banks' diagnosis is as follows:

"1. Any diagnosis made after examination

22. Information obtained during assessment supports the historical diagnosis of ADHD. Taking into account however, Mr Mather's history of being raised in an orphanage until the age of five, another differential diagnosis remains possible - that of Reactive Attachment Disorder (Disinhibited type), the symptoms of which can include the entire criteria of ADHD together with difficulties achieving and maintain affectionate relationships, together with effectively regulating his own emotional state and capacity to inhibit impulsive behaviours. Mr Mather likely lacked a primary attachment figure during the most formative years of his early childhood. His behaviour upon relocation to Australia was characterised by acting out behaviours, which is consistent with the above diagnosis. "

20 The doctor also addressed his employment prospects in these terms:

"The prospects of him securing and continuing with gainful employment

31. Mr Mather is likely to be able to successfully engage in employment. He is a friendly and pleasant young man lacking any physical limitations that would impede his ability to participate in certain types of employment - at this point essentially low-skilled hospitality roles. Given Mr Mather's age and his lack of significant work history, this remains largely untested. Mr Mather's impulsive behaviour and history of aggressive behaviour when provoked, however suggests the possibility of poor decision making during employment which may result in some erratic behaviour if confronted with non-ideal events during the course of employment which will likely lead to job losses and financial compromise. This could be addressed proactively by discussion with his clinical therapist. It should be noted however that, outside of professional sporting careers, the possibility of Mr Mather earning a salary consistent with his current lifestyle must be considered minimal."

21 The last sentence is a reference to the fact that his mother has since the parents' separation supported her son and paid all his school and course fees. The level of that expenditure is consistent with a somewhat high lifestyle, with overseas trips and all expenses being met.

22 In cross-examination the doctor suggested that if his planned career did not eventuate, his employment prospects would at best be in the hospitality industry or some other manual work. He has of course had some sporadic employment in those areas.

23 There were a number of recommendations made by the doctor for ongoing counselling and support. On this aspect he noted:

"26. Mr Mather also reported that he may need some short-term counselling to address his ongoing impulsive behaviours. This view is certainly endorsed, as Mr Mather reported that the previous day he had used his mother's partner's car without permission, despite such actions being expressly forbidden due to his recent car accident in his mother's vehicle. Mr Mather indicated he wanted the counselling to 'help him understand why he did such dumb things'. While a laudable moment of reflection for an adolescent, it also highlights that his emotional maturation has far to go, and he is yet to gain insight into many of the issues currently under review. Some of these will be considered below."

24 On the ability of the plaintiff to handle money, I note the following two comments of the doctor:

"21. With adequate support, Mr Mather has the capacity to make decisions related to his financial welfare. However, given his history of impulsive behaviour and his young age he would certainly benefit from ongoing structured and supportive assistance in this regard. While Mr Mather's impulsive behaviour may present an impediment to sound management of his finances, he has the capacity to make reasoned financial decisions when required and has the potential to adequately consider the consequences of financial decisions with appropriate support and guidance. Mr Mather may wish to seek and engage independent financial advice in the future when making significant financial decisions. Such a service should endeavour to minimise potential distractions during this process to ensure that Mr Mather is able to attend to, and understand, all presented information. While Mr Mather may wish to bring a support person to such meetings, provision of information should be directly to Mr Mather, as it appears he may have a tendency to willingly defer responsibility and allow others to manage difficult affairs for him. Again however, this is also not particularly unusual given his age.

32. Mr Mather would likely require some support to handle a large fund of money in the long term. While processing the capacity to make decisions related to the handling of his finances, Mr Mather may need support to ensure that he does not make impulsive decisions in the longer term management of his finances, were he to receive a large fund of money. This support could remain relatively non intrusive however, after the establishment of some initial provision of education, advice, and planning. To prevent irresponsible discharge of such a pool of funds, there would be merit in the establishment of an independent trust for him to which he has access, but subsequent to review by approved fund manager(s)."

The relationship between the plaintiff and the deceased

25 The statement made by the deceased exposes many of the problems in this area. There is no doubt that the deceased had a close attachment to Andrew as a child and took an active part in his growing up. He supported all Andrew's sporting activities. The separation of his parents had a profound effect on Andrew, particularly as the deceased was exhibiting symptoms of his mental illnesses, which included depression, bipolar disorder and alcoholism.

26 After separation the deceased still had access to Andrew, at first under the supervision of the deceased's brother Christopher, and then unsupervised.

27 In the note the deceased left, in para 2 he said that in July 2008 the plaintiff assaulted him and stabbed him in the arm with some implement. The evidence of both defendants, and the deceased's then solicitor Ms Scott, is that the deceased made immediate complaint about this incident. The defendants both saw the wound (which required medical treatment) and blood on the deceased's carpet and elsewhere in the home. The plaintiff denied this but I am satisfied that it did occur.

28 Criminal proceedings for assault were then brought against the deceased based on a complaint by the plaintiff that he had been assaulted by his father. At this stage the plaintiff was only 15 years old and the impetus for the laying of the charge came from friends of the plaintiff's mother who were the only available adults in Australia who could respond to the problems: the mother was out of the country. There was also issued against the deceased an interim apprehended violence order pending the hearing of the charges.

29 The deceased strongly denied that he was guilty of any assault. The evidence is that the bringing of these criminal proceedings had a deeply adverse effect on the deceased psychologically.

30 In the letter the deceased then refers to the fact that although the charge was persisted with for many months, when it came on for hearing at Waverly Local Court on 23 April 2009, the plaintiff failed to appear to give evidence. As a result, the charge was dismissed with costs. It turned out that the reason the plaintiff did not appear at the hearing was that his mother, on her return to Australia, quite sensibly decided it was not in anyone's long-term interest to have the proceedings go ahead. To achieve this end, she did not tell the plaintiff of the hearing date so he never attended.

31 In para 3 of the letter by the deceased, he refers to occasional attempts to restore relations with the plaintiff through text messages on the plaintiff's birthday and to inform him that his grandmother was ill. He says that these advances were rejected.

32 Ms Scott gives evidence of a conversation with the deceased in which he recounted an incident regarding the plaintiff's grandmother. The file notes are exhibited to her affidavit. It appears that after sending a text message to the plaintiff, the deceased received a reply from the plaintiff about a week later, saying, "Never text me again. I am trying to get on with my life."

33 It was a difficult time but shortly before the deceased's death, and probably only a week or two before, Andrew took the initiative and, with a friend, called in to see his father for about half an hour. There seems to have then been somewhat of a rapprochement between them.

34 The question of estrangement has been dealt with in many cases. In Foley v Ellis [2008] NSWCA 288 the Court of Appeal referred to this kind of problem in these terms:

"101. The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of that testator or testatrix to provide for the claimant. In Palmer v Dolman Ipp JA, after a review of the cases, observed (at [110]) that:

'...The mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.'

See also Wheatley v Wheatley [2006] NSWCA 262 at [22]-[23] per Bryson JA (with whom Santow and McColl JJA agreed), addressing the second stage of the process required by Singer v Berghouse.

102. The authorities indicate that where the claimant has been estranged from the testator or testatrix, the application of s 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, Estate of GM Wentworth (Bryson) quoted in Wheatley v Wheatley at [22]. In addition, s 9(3)(b) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time. The 'wise and just' testator or testatrix (Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this."

35 In Wheatley v Wheatley [2006] NSWCA 262 Bryson JA had the following to say:

"37. The poor state of the relationship between Mr Wheatley and the testatrix, illustrated by the absence of visits during the last 13 years of her life, operates to restrain amplitude in the provision to be ordered. However, Mr Wheatley is an eligible person, the testatrix's only son and one of her only two children, and his needs are severe and go far beyond the needs for renovation of his flat and dental treatment which the Trial Judge's order provided for. Amplitude would not be appropriate in ordering provision for him, but it must be observed that provision for him, even the full amount nominated by his counsel, would not produce any hardship for Ms Wheatley, who would still be provided for on a scale according full and appropriate recognition to her claims."

36 The matter was further discussed recently by White J in Kay v Archbold [2008] NSWSC 254 in these terms:

"94. Senior counsel for the defendant submitted by reference to observations of Bryson JA (with whom Santow and McColl JJA agreed) in Wheatley v Wheatley at [37] that the poor state of the relationship between the deceased and the plaintiff, illustrated by their lack of communication between 1999 and 2006, even when the plaintiff was aware that her mother was ill and seriously so, operated to 'restrain amplitude in the provision to be ordered'.

95. Their estrangement is certainly a factor to be taken into account in determining what provision should be ordered. However, cases are infinitely various. There is no rule that irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, a claimant is not entitled to 'ample' provision if he or she has been estranged from the testator. Bryson JA was making observations appropriate to the facts in Wheatley v Wheatley. He was not espousing any general principle as to the relevance of amplitude. The very general directions in ss 7 and 9 of the Family Provision Act require close attention to the facts of individual cases. It is an error to seek to extract statements of general principle from observations directed to the facts of a specific case.

96. The present is not a case of 'bare paternity' or 'bare maternity'. But even in such cases, the fact of parenthood is highly material to the existence of a duty to make provision. In this case, some provision was made. The question is as to its adequacy."

37 There is no doubt that the plaintiff's ADHD or reactive attachment disorder made him a difficult child to handle. The break in the relationship was only for a short period of about a year and was mended on the initiative of the plaintiff. In these circumstances I do not regard the incident and the separation as either fatal to a claim or such that the amplitude of any provision should be restricted.

38 I turn to consider the situation in life of others having a claim on the bounty of the deceased.

Situation in life of Christopher Andrew Mather

39 Christopher is 54 years of age, married. He and his wife still have two children living with them. One is only seven years old and will need ongoing support and education. Christopher is a veterinary surgeon in private practice. His wife also works in the business. Their net income is $131,700 per annum and their expenses for last year amounted to $148,421.

Their assets are the following:

Family home at Seaforth valued at $1.5 million

1998 Mitsubishi Pajero $5,000

2009 Mazda 3 hatch $17,000

Accumulated superannuation $457,000

A half share of the business $350,000

An interest in the mother's estate $360,000

40 The only liability is a credit card debt of $40,000, which was accumulated, in the 2009-2010 financial year when their expenditure exceeded their income. The valuation of the business is based on an historical figure and not present-day figures.

41 Christopher did not contribute to the estate but he was an enormous help to his brother during his divorce and subsequent years. He was appointed his guardian for the Family Court litigation and ultimately supervised the deceased's access to his son when that was required.

42 He is in good health.

The situation in life of Howard Louis Mather

43 Howard is the deceased's twin brother and is 60 years of age. He is married with three children, one of whom lives with him on the weekends.

44 He retired for medical reasons in August 2009. On retirement he received a lump sum, which was invested into an allocated pension. That pension is the source of about $20,000 of their joint net income of $76,000 per annum. The balance of the income is derived from his wife's employment. They have to control their expenditure so that it does not exceed their income.

Their combined assets are as follows:

Family home at Murwillumbah $420,000

Bank account $6,000

Capital balance of allocated pension $400,000

His wife's superannuation $116,000

2010 Subaru Forester $30,000

His share in his mother's estate $360,000

45 He has a home loan from the Commonwealth Bank of $90,000 and a potential liability on the guarantee given to the bank for their son to purchase and build a home of $100,000.

46 Howard's health is poor. In 2005 and 2007 he underwent operations on his shoulders to take out joints, which had disintegrated from arthritis. He suffers from severe arthritis in many parts of his body, particularly his back and knees. He has had one knee replaced and will likely have to have the other one done as well. He has problems with crushed vertebrae in his spine. His blood pressure spikes to very high levels due to stress and that was a reason why he had to retire.

47 His wife is 55 years of age and has had a long career as a preschool teacher. Her back is bad and he says she is burnt out. She is the director of a local preschool and has to work long days to complete the paperwork involved with her job. Her mother is elderly and suffers from dementia, and this is also a drain upon her. Obviously, if she retires, which might happen soon, her superannuation would be just enough to pay off the home loan.

48 Howard did not contribute to the estate but he was also, despite distance, close to his brother. After the separation he would come and see his brother every two to three months and would talk to him frequently on the phone.

Discussion

49 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. He seeks an order that he be provided with the whole of the deceased's estate. He puts forward the following needs:

(a) the purchase of a home unit in the Darling Point area in the range of prices between $775,000 to $1,975,000;

(b) costs of purchase and fit-out of $100,000;

(c) a bigger car of $21,000-22,000;

(d) golf expenditure and clothing expenditure of $13,500 per annum;

(e) running costs of the car of $10,000-11,000 per annum;

(f) food and groceries of $15,000-16,000 per annum;

(g) golfing fees to bring him up to professional status of $50,000;

(h) counselling costs

50 The defendants make it clear that Andrew should have some provision and suggest that he should receive one-third of the estate, with the balance being shared equally between the two defendants.

51 The plaintiff is an eligible person. The deceased's brothers are not, but in the circumstances of this case, they do have a claim on his bounty, which goes beyond their relationship. This is because both brothers played an important part in the deceased's life by giving him support in a very troubled time for the deceased at separation and afterwards up until his death. This is not a case where the plaintiff is the only claimant on the estate.

52 The defendants sought to resist the plaintiff's claim and minimise the amount of any order by suggesting that his mother, a wealthy woman with a large income, will continue substantial material provision for him in the future. They also point to the will of his mother, which makes the plaintiff the principal beneficiary.

53 On the latter aspect, given the mother's life expectancy, the terms of her will have no impact on the plaintiff's present needs. On the former, the plaintiff has now reached his majority and his mother is not obliged in law to support him or provide him with a house. Their relationship is presently a good one and, absent any order, it might be expected that his mother will continue to assist him. This does not mean that his claim on his father's estate is thus diminished. His father had a responsibility to provide for his son out of his estate for such matters as is within the purposes of the Act. The comments by the deceased in para 4 of his note are an attempt by the deceased to abdicate from the responsibilities he has to make adequate and proper provision in accordance with the Act.

54 I turn to consider the matters, which are put forward by the plaintiff.

55 In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

"67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.

68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.

69. White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.

70. It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.

71. There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order."

56 At present the plaintiff has not decided to move out of his mother's home but realises that this may occur in the future and he will need a place to live. The range of units of which there is evidence of their asking price are all two- or three-bedroom units in expensive parts of the Eastern Suburbs, such as Darling Point, Elizabeth Bay or the Finger Wharf at Woolloomooloo. This is plainly the top end of the market.

57 There would be plenty of places in the Eastern Suburbs - and I accept that the plaintiff wishes to live there - which would be not so expensive. There is no need for a two- or three-bedroom unit for the plaintiff at this stage in his life. In my view a provision of $850,000 plus $50,000 for costs and fit-out would be more than adequate.

58 It may well be that the plaintiff may need a bigger car but he can trade in the present car. An allowance of $12,000 for this would be appropriate.

59 The question of his future career is one, which is problematical. He is progressing reasonably well in the first year of his present two-year course. If he does not succeed in the course, it is unlikely that he will be able to progress with his chosen career. If he cannot, he will have to adjust his life expectations and start working at the other jobs for which he is fitted. As has been pointed out by the defendants, there is no evidence that the plaintiff is likely to succeed in his chosen career.

60 Having regard to the circumstances in which the plaintiff was brought up, it is not inappropriate to endeavour to assist him with what is his equivalent of tertiary education. The costs of the present course and other necessary expenditure are $63,500.

61 As he is not presently intending to move out of home during the course, his other expenditure is minimal. However, some buffer is necessary in order to give him a period of some years during which he can attempt to establish himself in his chosen career or alternatively adopt another career path.

62 The situation of the brothers after they receive the $360,000 each from their mother's estate can be summarised as follows.

63 Christopher is a professional earning only a very modest income from the business and has modest superannuation. He will, on receipt of the money from his mother's estate, have some cash reserves, which will help with any deficiencies in income. He still has a seven-year-old son to support and educate.

64 Howard is in more modest circumstances. The capital balance of his super will disappear as his pension is paid out over the coming years. He will be able to pay off his loan with his mother's estate funds. The superannuation, which his wife has, is minimal and as she may well stop work, their income will be substantially reduced. The cash available will last for some years but they could well end up on a pension.

65 It is reasonable in my view that they should receive something from the estate.

66 I note that there is superannuation which may be payable either by a pension to the plaintiff for a period from the date of death up to 25 or completion of approved courses at $251 per fortnight. If not, a lump sum of $103,728 is payable to the legal personal representatives and would be part of residue. The trustee is waiting for the result of this case before requiring a decision by the plaintiff as to which option he will follow.

67 Given that I propose to give a legacy to the plaintiff, I would assume that the plaintiff will opt to take any pension available.

68 In my view, the appropriate order is that the plaintiff receive a legacy of $1.1 million from the estate of the deceased.

69 Given that the plaintiff presently has little ability to manage such funds, I think this should be held in trust for him until he reaches 25 years and then vest absolutely. Given his mother's expertise, I have no objection to her being the trustee of the fund.

70 I direct the parties to bring in short minutes. I order that the exhibits be returned on the solicitors' usual undertaking that they be retained for any appeal period.

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Associates Stamp

I certify that this and the 20 preceding pages are a true copy of the reasons for judgment herein of the Honourable Associate Justice Macready given on 20 September 2012 ex tempore and revised.

Dated: 21 September 2012.

Associate: Alexis N. Gage

Decision last updated: 21 September 2012