TAYLOR -v- TAYLOR [2016] WASC 71 (8 March 2016)

Last Updated: 8 March 2016

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TAYLOR -v- TAYLOR [2016] WASC 71

CORAM : MASTER SANDERSON

HEARD : 15 DECEMBER 2015

DELIVERED : 8 MARCH 2016

FILE NO/S : CIV 1414 of 2014

MATTER : Section 6(1) of the Family Provision Act 1972 (WA)

The Estate of James Murray Taylor late of 53 Hurlston Way, Koondoola in the State of Western Australia

BETWEEN : LINDSAY DAVID TAYLOR

Plaintiff

AND

DARRYL MURRAY TAYLOR as Executor of the Estate of JAMES MURRAY TAYLOR

First-named First Defendant

JULIE BERYL WILLMOTT as Executor of the Estate of JAMES MURRAY TAYLOR

Second-named First Defendant

BEVERLEY ANNE TAYLOR

Second Defendant

ALLAN REDMOND TAYLOR

Third Defendant

JULIE BERYL WILLMOTT

Fourth Defendant

ELIZABETH RHONDA DAWN DREW

Fifth Defendant

DARRYL MURRAY TAYLOR

Sixth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Son main beneficiary of estate caring for the deceased - Whether further provision ought be made for adult son - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Dr P R MacMillan & Mr M J Bassett­Scarfe

First-named First Defendant : Mr M Curwood & Mr P S Bates

Second-named First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : Mr M Curwood & Mr P S Bates

Fourth Defendant : Mr M Curwood & Mr P S Bates

Fifth Defendant : Mr M Curwood & Mr P S Bates

Sixth Defendant : Mr M Curwood & Mr P S Bates

Solicitors:

Plaintiff : Peel Legal

First-named First Defendant : McVay Bates & Associates

Second-named First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : McVay Bates & Associates

Fourth Defendant : McVay Bates & Associates

Fifth Defendant : McVay Bates & Associates

Sixth Defendant : McVay Bates & Associates

Case(s) referred to in judgment(s):

Nil

1 MASTER SANDERSON: This is the plaintiff's application for further provision from the estate of his late father James Murray Taylor (the deceased). It raises again the question of what is adequate provision from the estate of the deceased for an adult son.

2 The parties filed a multiplicity of affidavits. The plaintiff relied on nine affidavits four of which he swore. The defendants relied on seven affidavits three of which were sworn by the third defendant. The second defendant maintained a claim for a greater provision from the estate. Her claim has been settled and she took no part in these proceedings. The facts appearing below are taken from the various affidavits filed by the parties.

3 The deceased died on 4 August 2013. He had five children being the plaintiff, and the second through to the sixth defendants. The deceased left a will executed 26 July 2012. The will leaves a property at 53 Hurlston Way, Koondoola to the third defendant. The reminder of the estate is divided equally between the plaintiff and the second to sixth defendants. The estate is valued at approximately $560,272 of which $430,000 is comprised in the value of the property. There was not dispute between the parties as to the value of the property.

4 The plaintiff is 58 years of age. He is married to Karen Dawn Taylor and she is 50 years of age. The plaintiff and his wife have four children the youngest of whom is 10 years of age. The three older children are independent. The youngest child is a student attending Mandurah Baptist College.

5 The plaintiff has assets of $245,216 and his wife has assets of $174,058. Their joint assets as at the date of trial were $419,274. As at the date of death of the deceased those assets amounted to $393,698. Their main asset appears to be a home in Meadow Springs. That property is mortgaged in an amount of $32,000.

6 The plaintiff is in full time employment. His taxable income for the financial year ended 30 June 2014 was $118,432 gross or $81,692 net of tax. The plaintiff's wife does not work and was not working at the date of death of the deceased. It is unclear whether she will be able to take up employment at any time in the future.

7 There is no doubt the plaintiff has significant health issues. These were summarised in an affidavit of Dr Birender Singh sworn 22 April 2015 and filed in support of the application. Attached to Dr Singh's affidavit are three medical reports prepared on 26 March 2015, 31 March 2015 and 2 April 2015. The most comprehensive summary of the plaintiff's medical condition is found in Dr Singh's report of 31 March 2015 which is attachment BS5 to his affidavit. Dr Singh says the plaintiff has been diagnosed with ischemic heart disease with a coronary stent and COPD. Dr Singh summarises the plaintiff's conditions as follows:

Ischaemic Heart Disease - [the plaintiff] had a MI in 2010 for which he was treated with by a stent in RPH. Since then he has to have regular visits with the cardiologist and regular investigations for his cardiac function. His heart disease might progressively get worse as he gets older. This might result in deterioration in cardiac functions and require more support and help as compared to a person who is otherwise well. He will definitely need six monthly to yearly checks for his heart as well as regular investigations.

Ch Bronchitis and Emphysema-

Ongoing COPD for which he is on treatment with inhalers. This is likely to slowly but progressively get worse over time as lung functions deteriorate with age. Unchecked it can result in increasing shortness of breath, need for walking aids, mobility issues and repeated infections - resulting in a deleterious effect on the cardiovascular status as well.

8 In his third affidavit sworn 27 May 2015 the plaintiff raises a number of other issues about his health into the future. He anticipates a need for mobility assistance. He says he has dental costs which must be met in the near future. He has complications from sleep apnoea and will require treatment for this condition. He also requires treatment for abnormal lymph nodes. The projected costs for the mobility expenses are $13,512. The estimated costs of dental work is put at $5,147.

9 The plaintiff claims that he and his wife will require a combined amount of $510,000 in order to live a comfortable lifestyle postretirement. This figure is based upon the Australian Association of Superannuation Funds Retirement Standard. As to his future living costs and needs the plaintiff refers in his third affidavit to various repairs and maintenance he says are required to the Meadow Springs property. These include $11,810 for kitchen renovations, $8,437 for repainting and various other amounts. Really what the plaintiff is claiming is a topup from the deceased's estate which will allow he and his wife to live with a degree of comfort and certainty into the future.

10 The third defendant is aged 45. He has never been married and he has no children. He has lived in the Koondoola property for the past 25 years. He is in reasonably good health although he suffers from a condition known as ischemic bradycardia for which he takes medication. Between 21 May 2009 and the date of the death of the deceased the third defendant was the deceased's carer. The circumstances in which the third defendant became the deceased's carer and what was involved in his taking on that role are set out in pars 8 16 of the third defendant's affidavit sworn 4 July 2014. These paragraphs, the essence of which is confirmed by affidavits of the other defendants, really explain the basis upon which this application was resisted. They read as follows:

BACKGROUND TO BECOMING CARER

8. Things happened very suddenly when my Mother passed away on 21 May 2009. At this point I was extremely upset, but we then had the very hard decision of telling Dad that his wife had died. He had only just come out of intensive care after major heart surgery and was already in a very fragile state of health. Dad's doctor told us to wait until the next day to tell Dad the news.
9. My siblings and I had some major decisions to make regarding Dad's future care. On return to the hospital the following day we all had meetings with the social worker, doctors, cardiac care nurses, and occupational therapists, who explained Dad's situation and his needs. The possible outcome suggested was that Dad could be placed in a Nursing Home, or if one of the family stepped up, they could take care of him in his own home. There was no expression of interest from anyone except my sister Julie Willmott to care for Dad at this time, but it would have been difficult for Julie as she had her own family to care for and she lived in Dumbleyung about 300 kilometres south of Perth.
10. It was my opinion that Dad's life would be much happier and he would be more comfortable in his own home within familiar surroundings, especially after Mum's passing.
11. I made the decision to offer to take responsibility for Dad's care and well-being as I thought it would be the best outcome for him.
12. Following discussions between Dad and my brothers and sisters, he agreed that he would be most happy in his own home under my care. I was not sure as to the full extent of the care that would require, but I had a fair idea and so I commenced caring for him.
13. The hospital staff that I dealt with doubted at first that I would be capable of caring solely for such a high need patient, having no previous experience. It was a steep learning curve to start, with many things I had to pick up quickly but the thing I found hardest was the personal care required, which at times was very demanding.
14. The most frustrating thing for Dad was not being able to carry out the simplest of tasks, and on a daily basis I attended to his personal hygiene which involved showering, dressing, toileting, emptying the commode, fitting incontinence aids, cleaning his false teeth, washing clothes and cleaning soiled pants, cleaning the house, mopping and vacuuming, bed making, cooking and preparing meals, gardening, general repair and maintenance, wound care and changing dressings.
15. I would arrange doctor's appointments and I kept a large folder of appointments and reports. I administered medication, which required careful control and I collected it on Friday each week. I also managed the finances and had the task of picking up any mobility aids and incontinence aids.
16. I drove Dad to all his appointments as he did not have a licence due to his medical condition. Shopping was a big event for him as he loved getting out and looking around in the different shops in various localities. We also visited friends, went on outings, and attended medical appointments which involved care management plans performed by a nurse, blood tests, hospital appointments involving operations and wound care, ophthalmology with visits to Lion's Eye Institute, x-rays, pacemaker clinic, gastroenterology appointments, specialist appointments, hearing tests and aids, podiatrist, vascular ultrasound examinations and dental clinics. These outings and visits were an involved process because it was not just the wheelchair Dad needed, I also had to have on hand a change of clothes and a urinal bottle.

11 There was no real dispute between the parties as to the principles to be applied in a case such as this. Counsel for the plaintiff summarised these principles in his written submissions. Rather than paraphrase those submissions I will quote and adopt what was said in pars 31 34 of the submissions. They read as follows:

Adequate provision for proper maintenance

31. Section 6(1) of the Act speaks of 'adequate' provision for the 'proper maintenance etc' of the claimant. In considering whether 'adequate' provision has been made the Court is required to consider:

'... 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.'

See: Mason CJ, Deane and McHugh JJ in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210; [1994] HCA 40; 123 ALR 481 at 437; Kitson v Franks BC200102084; [2001] WASCA 134 at [35].

Adult children

32. No distinct test is to be applied involving special need or special claim, simply because an applicant is an adult. Such factor is merely to be weighed in making the determination whether adequate provision has been made. Roche v Varnavides [2004] WASC 164 [6]-[8]. As Bryson J remarked in Gorton v Paries (1989) 17 NSWLR 1 at 7:

'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.'

33. There is no doubt that the existence of a moral (or special) claim is relevant in determining the jurisdictional question whether adequate provision has been made. Goodchild v James (1994) 13 WAR 229 at 235; Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 at [53]; Butcher v Craig [2010] WASCA 92 at [12].
34. For a convenient summary of the principles applicable to claims by adult children, see Braun v Australian Executor Trustees Ltd [2014] WASC 210 at [11]. In short:

(a) the relationship between parent and child changes when the child leaves home; the child does not cease, however, to be natural recipient of affection or support;

(b) the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education where that is feasible; where funds allow, to provide them with a start in life such as a deposit on a home or assistance in some other form;

(c) generally the community expects a parent where a child falls on hard times, and there are assets available, to provide a buffer against contingencies or to assist with retirement;

(d) if the applicant has an obligation to support others, that will be a relevant factor in determining appropriate provision;

(e) there is no need for an applicant child to show special need or some special claim;

(f) an adult child's lack of reserves to meet demands, particularly of ill health, is a relevant consideration as is the applicants inability to earn a living or to earn anything more than a limited living;

(g) the applicant has the onus of satisfying the Court of the justification of the claim;

(h) equality between children does not necessarily provide an appropriate guide as to appropriate provision in respect to a particular claim;

(i) there is no obligation on a parent to equalise distributions made to his or her children.

12 The first step is to determine whether at the date of the death of the deceased the will provided adequately for the advancement in life of the plaintiff.

13 As with all of these cases it is necessary to undertake a balancing exercise. I accept the plaintiff does suffer from various ailments which could in the future restrict his work options and with limited financial means any award would be of assistance. This is not a case where the plaintiff is a wealthy man who is simply looking for a topup to his assets because as of right he believes he should have a further share of the deceased's estate. The estate is modest but there is a property which if sold could provide further funds to the plaintiff. Against that the third defendant acting as he did as the deceased's carer has a legitimate claim on the estate.

14 It is this last point which seems to me to be decisive. The third defendant and his siblings discussed with their father his needs and who would care for him. The third defendant took on that role. He did so with the agreement of his siblings. It is not to be thought there is some sort of binding agreement in that arrangement. No such thing was alleged on behalf of the third defendant. But the deceased and his children reached an understanding. More than that because the third defendant was prepared to take on the onerous role of caring for an elderly parent the deceased did not have to go to a nursing home. He was able to live out his final years in his own home cared for by a son who was clearly devoted to him. It is hard to imagine the deceased could have been better served by any alternative arrangements for his care.

15 Over the years courts have developed the test of the wise and just testator. In this case if the thoughts of such a mythical figure were analysed it would not be difficult to see how the deceased would favour the third defendant with the bulk of his estate. It represents gratitude for the selfless way in which the third defendant conducted himself. Put another way there is every moral justification for the deceased disposing of his estate in the way that he did.

16 Balancing all the relevant factors I am not satisfied the plaintiff has shown the deceased did not provide adequately for him in his will. Accordingly in my view the application ought be dismissed. Lest that conclusion be wrong and the will did not provide adequately for the advancement in life of the plaintiff I will consider what if any distribution should be made to him.

17 In my view no distribution should be made. I am satisfied the plaintiff, as an adult son, has sufficient, both by way of assets and income, not to warrant further distribution from the estate.

18 I will hear the parties as to costs.