DISTRICT COURT OF QUEENSLAND
CITATION:
Gore v Rouse [2017] QDC 98
PARTIES:
TREVOR JOSEPH GORE
(plaintiff)v
KATHLEEN JEAN ROUSE
(defendant)KATHLEEN JEAN ROUSE
(applicant)v
TREVOR JOSEPH GORE
(respondent)FILE NOS:
BD 1232/2015
BD 1940/2015DIVISION:
PROCEEDING:
Civil Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
27 April 2017
DELIVERED AT:
Brisbane
HEARING DATE:
19 and 20 April 2017
JUDGE:
Andrews SC DCJ
ORDER:
These matters are adjourned to a date to be fixed to enable the parties to produce a draft order giving effect to these reasons.
Liberty to provide written submissions as to costs within 7 days.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant was a de facto partner of the deceased – whether de facto partnership for four years - where moderate estate – where testator left estate to three adult children from previous marriages and no provision for applicant – where bulk of estate left to two adult children employed with no dependents – where one employed adult child had known but dormant mental health issues – where applicant contracted a minor treatable disease from deceased – where applicant aged 69 owned unencumbered home and cash but where her expenses exceeded her pension income – whether no provision for applicant was not adequate provision
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – what is a fit provision from the estate – where upon the deceased’s death circumstances changed in that one employed adult child beneficiary suffered nervous shock and became and has remained unemployed but has recovered damages for nervous shock – where another adult child beneficiary suffered nervous shock and became unemployed but has recovered damages for nervous shock – where the applicant suffered loss of dependency and recovered damages for wrongful death – where applicant’s pension will now meet her modest expenses – where applicant contracted a minor treatable disease from the deceased
Re Evans [1946] St R Qd 20
Bashall v Bashall [1894] 11 TLR 152
In re Cole, A Bankrupt [1984] 1 Ch 175
Nolan v. Nolan [2003] VSC 121
COUNSEL:
Whiteford for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015
Given for the defendant in BD 1232/2015 and the applicant in BD 1940/2015
SOLICITORS:
The Estate Lawyers for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015
Forbes Dowling Lawyers for the defendant in BD 1232/2015 and the applicant in BD 1940/2015
Issues
Bruce Edward Gore (“the deceased”) died on 30 August 2014. He was then living at least most nights each week at the home of Kathleen Jean Rouse (“Mrs Rouse”). When he died, the deceased left a will appointing his son Trevor Rouse as the executor of the deceased’s estate. At the date of his father’s death, Trevor believed that a number of chattels at the home of Mrs Rouse were chattels belonging to the deceased. He claimed them. Two of the chattels retained by Mrs Rouse remain in dispute.
Proceeding BD1232 of 2015 is a claim by the estate against Mrs Rouse for delivery up of ten chattels, or alternatively for $53,735.00 as the value of the chattels or as damages for their conversion. Eight of the chattels are no longer relevant in this proceeding. Four became the subject of a consent order for their return; claims for another four are abandoned by the executor on the basis that they are of minimal value. Two chattels remain in issue: a Mazda 3 motor vehicle and a Uneeda box trailer. The issue is whether the deceased gave them to Mrs Rouse prior to his death.
Proceeding BD 1940 is Mrs Rouse’s claim pursuant to s 41 of the Succession Act 1981 for further provision from the estate of the deceased. The issues are as follows:
a) whether Mrs Rouse was the deceased’s “de facto partner” as defined in s 32DA of the Acts Interpretation Act 1954;
b) whether she and the deceased lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’s death, so as to be a “spouse” within the meaning of that word in the Succession Act 1981;
c) whether, if Mrs Rouse was a “spouse”, the deceased did not make adequate provision from his estate for her proper maintenance and support;
d) if adequate provision was not made, whether any provision should be made out of the estate and, if so, what is a fit provision.
Relevant facts
Mrs Rouse was born on 1 January 1945. She has three adult children. She was 69 when the deceased died in a tree-lopping accident at her property at 25 Kensington Drive, Munruben.
The deceased was born on 12 December 1950. He was a self-employed bricklayer aged 63 at his death. There is one child of his first marriage: Tracey Howe. There are two children of his second marriage: Trevor Gore born 29 August 1981 (the “Executor”) and Natalie Gore born 11 October 1983. The deceased and his second wife separated in 1998 and divorced in about 2002.
The deceased’s last will (the “Will”) was dated 27 November 2006. By it he:
(a) left his daughter, Tracey $20,000.00;
(b) left his residuary estate to his son, Trevor and daughter, Natalie in equal shares.
Probate of the Will was granted on 6 January 2015.
It appears not to be controversial that, when the deceased died, his assets included:
ANZ Access Save account number 998
$ 15,988.30
ANZ Progress Saver account number 25467
$645,866.82
2007 Toyota Hilux motor vehicle registration number 177-KNS (estimate)
$20,000.00
Tools (estimate)
$1,500.00
Ride on mower (estimate)
$1,250.00
BUPA refund
$1,441.95
AXA/AMP premium refund
$692.41
Cash on hand
$4,700.00
TOTAL
$691,439.48[1]
[1]Affidavit TJ Gore, court doc 10, para 9.
In addition:
(a)the Executor claims that a number of chattels in Mrs Rouse’s possession belonged to the deceased. These are the subject of proceedings BD 1232/15. The only chattels of sufficient value to affect the outcome of the family provision claim are:
(i)Mazda 3 motor vehicle registration number 717-SBJ (estimated value at date of death): $20,000.00;
(ii)Avon Alina campervan registration number 027-QUW (estimated value at date of death): $28,000.00. It has now been agreed that this is to be returned to the estate; current value estimated at $15,000.
(b)the Executor asserted that Mrs Rouse’s son Michael Rouse owed money to the deceased. Proceedings M5490/15 were commenced against Michael Rouse to recover this money, but those proceedings have been discontinued for commercial reasons;
(c)the deceased had ANZ OnePath superannuation.[2] A Binding Death Benefit Nomination (BDBN) in favour of the Executor and Natalie expired on 20 June 2014.[3] On 31 March 2014, ANZ wrote to the deceased reminding him that the BDBN was about to expire, but the deceased did not receive that letter because it was sent to the wrong address[4]. As the BDBN was not renewed, superannuation in the sum of $368,423.00 has been paid to the estate and is now held in the estate bank account.[5] If the superannuation is distributed to the Executor and Natalie, tax is estimated to reduce the superannuation to about $310,000.00.[6]
[2]Affidavit TJ Gore, court doc 10, para 10.
[3]Affidavit TJ Gore, court doc 10, Exhibit TJG-10.
[4]Affidavit TJ Gore, court doc 15, paras 7-9, Exhibits TJG-2, TJG-3.
[5]Affidavit TJ Gore, court doc 28, para 1(a).
[6]Assuming a 22.5% tax rate on the taxable component of the superannuation: Affidavit TJ Gore, court doc 28, paras 2, 3.
On 21 December 2015, interim distributions of $150,000.00 were made to each of the Executor and Natalie.[7]
[7]Affidavit TJ Gore, court doc 15, para 4(g).
The Executor has set aside the estate’s cost of this litigation by depositing it into his solicitor’s trust account. All other debts have been paid.[8] Accordingly:
[8]Affidavit TJ Gore, court doc 28, para 9.
(a)the estate presently consists of at least:
CBA account - 3497 $578,452.77
Toyota Hi Lux $13,500.00
Ride on mower $1,000.00
Tools $1,000.00
$593,952.77
Less tax on superannuation (approx.)- $58,000.00
$535,952.77
(b)the following chattels may form part of the estate:
(i)Mazda motor vehicle: $9,400.00; and
(ii)Uneeda box trailer of low value.
The value of the other disputed chattels is estimated to be $5,735.00 and should not affect the outcome of the family provision proceedings;
(c)as the Applicant refused to exonerate the legacy of $20,000.00 to Tracey Gore, with legacy interest at 8%, the amount payable to Tracey Gore as at 19 April 2017 is $22,621.37.
Mrs Rouse is 72 years old now. Her life expectancy on the prospective tables is 17 years.
General principles relating to de facto relationships
To qualify as the deceased’s “spouse” and to have standing to make a family provision claim against his estate, Mrs Rouse must prove that she was the deceased’s “de facto partner” as defined in s 32DA of the Acts Interpretation Act 1954 and that she and the deceased were living as a couple on a genuine domestic basis within the meaning of s 32DA of the Acts Interpretation Act 1954 for at least two years ending on his death.[9]
[9]Succession Act 1981, s 5AA.
Section 32DA of the Acts Interpretation Act 1954 provides, so far as is relevant:
Meaning of de facto partner
(1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—
(a) the nature and extent of their common residence;
(b) the length of their relationship;
(c) whether or not a sexual relationship exists or existed;(d) the degree of financial dependence or interdependence, and any arrangement for financial support;
(e) their ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life, including the care and support of each other;
(g) the care and support of children;
(h) the performance of household tasks;
(i) the reputation and public aspects of their relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis. …
I accept the submissions for the Executor that in determining de facto status, none of the criteria set out in s 32DA is of decisive significance; that those criteria are to be weighed up with other relevant factors or circumstances; that the Court must be satisfied that the parties have so merged their lives that were for all practical purposes living together as a married couple; that talk of marriage is not decisive.
The relationship between Mrs Rouse and the deceased
Mrs Rouse met the deceased bushwalking in March 2010. At that date, the deceased was living in his house at 29-31 Panorama Drive, Beaudesert and Mrs Rouse was living in her house at 25 Kensington Drive, Munruben. At that date, she was 65 years old and her income was from Australian and New Zealand pensions. The deceased was 59 and earning a living as a bricklayer.
Mrs Rouse alleges that the deceased commenced living with her in the Kensington Drive property in September 2010 and that from that time they lived in a de facto relationship. The Executor admits that Mrs Rouse and the deceased were companions.
Sexual relationship
The Executor was suspicious of the extent of the sexual intimacy between the deceased and Mrs Rouse. His opinion was based upon statements made to him by his father in about 2006 that he was not sexually active.
The Executor does not accept that if a de facto relationship began, that it lasted for the necessary two years prior to the deceased’s death.
I accept the evidence of Mrs Rouse that she and the deceased discussed herpes from which he suffered, that they discussed and rejected his use of condoms and that she contracted herpes as a result of their relationship and that she became symptomatic and requires occasional treatment as a result. Counsel for the estate does not deny that the deceased and Mrs Rouse had a sexual relationship after 2010. Notwithstanding that, it is submitted for the estate that the relationship did not develop to the extent that Mrs Rouse became a de facto and that, if it did develop to that extent, it was not before October 2012.
There is evidence to support the estate’s argument.
Living arrangements
The deceased did not sell his house at Beaudesert until 14 August 2012. After September 2010 the deceased continued to receive correspondence at his Beaudesert address without notifying that he had changed his address. He also continued to give the Beaudesert address as his postal address, at least to several corporate entities. He updated his financial planning with the ANZ Bank in June 2011. The updated financial plan was sent to him at Beaudesert on 20 June 2011. An insurer sent a renewal notice for the deceased’s work truck to him at his Beaudesert address, confirming to him that his truck was garaged at Beaudesert. Whether he gave that information to the insurer after September 2010 is unclear. At the very least, he failed to correct the insurer. The deceased purchased a Mazda 3 motor vehicle in January 2012 and gave his Beaudesert house’s address as his address. He stated that the vehicle would be garaged at Beaudesert. In fact it was garaged at Mrs Rouse’s house. The last Origin account for the Beaudesert house was sent to that house on 24 August 2012. The deceased’s 2011 income tax return described the Beaudesert address as his residential address. It was only on 9 August 2012 that the deceased signed an application to re-direct mail from his Beaudesert address. The re-direction was to the Executor’s home at 78 Goman Street.
On 7 August 2012 the deceased changed his address on the electoral roll to Goman Street. In 2012 it seems likely that he advised the insurer of his work truck that his “residential/business” address was Goman Street. In March 2013 the deceased renewed registration for his box trailer, providing the address as Goman Street. In May 2013 the deceased bought a campervan and gave the address for his purchase contract as Goman Street. He provided his residential address for his 2012 and 2013 income tax returns as Goman Street. He advised his private health insurer, BUPA, that his address was Goman Street. He advised Queensland Transport and the Logan Hospital in October 2013 that Goman Street was his address. In March 2014 he consulted a neurologist and three months later attended at Sunnybank Hospital. Each was given the Goman Street address. He gave the Goman Street address as the appropriate address for his driver’s license.
Lorraine Wilson, who resided next door to the deceased’s Beaudesert property stated:
In August 2010, the Deceased occupied his residence for only a few nights at a time. By September 2010 and onwards, he was rarely at the premises. He attended infrequently apparently to do maintenance inside and outside the home. He requested, and I did, clear his mail box for him periodically and when he did visit, he would collect his mail from me. That occurred during the period September 2010 until the property was sold in 2013. He would collect the mail weekly to fortnightly.
The Executor provided a room at his home at Goman Street for the deceased to sleep. I accept that the deceased slept there from time to time after September 2010. However, it seems likely that he was mostly sleeping somewhere other than at the Executor’s home and other than at the deceased’s property at Beaudesert. I am satisfied that from September 2010, the deceased, when in Australia, mostly slept at Mrs Rouse’s home. He took three trips overseas in the relevant four year period. Each was with Mrs Rouse.
In proceedings in the Magistrates Court, Mrs Rouse referred to the sale by the deceased of his property at Beaudesert in August 2012. She said in that court:
I had returned all the furniture that Bruce had stored at my house after he sold his property and moved in with me permanently.
Counsel for the Executor argued that this earlier evidence by Mrs Rouse was a basis for finding that permanent co-habitation did not commence until after the deceased sold his Beaudesert property. It was argued that the deceased could be regarded as a visitor to Mrs Rouse’s home without any de facto relationship commencing until he moved in permanently in September 2012. It is a plausible argument but it is inconsistent with other evidence.
Doreen Davenport, who knew the deceased since he joined the Logan and Beaudesert Bushwalking Club in early 2011 recalls him moving into Mrs Rouse’s home in 2010, Mrs Rouse hosting his’s 60th Birthday Party at the Munruben property (which would have been in December 2010). On many occasions she visited them socially at “their home”.
The deceased and his dog moved into Mrs Rouse’s home in 2010. The fact that he slept occasionally at the Executor’s house and on an occasion for a week or so to help his son with building work is not inconsistent with maintaining Mrs Rouse’s home as his home.
Financial arrangements
Initially, Mrs Rouse deposed that the deceased paid her $250.00 per week “for rent”. The Executor’s affidavit in reply emphasised this because payment of rent is more consistent with the deceased living with Mrs Rouse as a boarder than as a partner. Confronted with this, Mrs Rouse deposed that she used the word rent “in a generic fashion. The payment I received was, more specifically, a contribution towards our dual living expenses”.
Mrs Rouse and the deceased had no joint bank accounts. When the deceased transferred $20,000.00 into her account in November 2013, she refused to accept the money. For the Executor, it is submitted that Mrs Rouse’s refusal of the funds was inconsistent with a de facto relationship. It is, but the submission ignores the fact that the payment is consistent with the deceased regarding them as a couple.
The deceased bought a Mazda vehicle after September 2010. He left it at Mrs Rouse’s house. She drove it. He had and used his truck for work. When the deceased and Mrs Rouse went out together they would travel in the clean Mazda in preference to the truck. The deceased would drive. Notwithstanding that, I accept that the car was primarily for Mrs Rouse’s use and the deceased’s provision of it for her primary use was consistent with a couple’s relationship. It would have been an unequivocal gift but for Mrs Rouse’s refusal to accept it. She refused out of concern that his generosity to her would upset the deceased’s daughter, Natalie.
The deceased told Mrs Rouse’s daughter, Michelle, that it was his place as Mrs Rouse’s partner to buy her a car, that he wanted to buy it for her as a present, but Mrs Rouse insisted he put it in his own name so that his children would not get upset. I prefer the evidence of Mrs Rouse on the point that her concern was with upsetting Natalie and not with upsetting the Executor.
Beverley Schofield, who also knew the deceased from the bushwalking club, was told by him that he had been looking at cars to buy Mrs Rouse as a gift. The fact that Mrs Rouse ultimately insisted that it be registered in the deceased’s name does not diminish the fact that the deceased displayed an attitude consistent with their being a couple.
The deceased purchased Mrs Rouse’s clothes and medications, paid for her expenses of three overseas vacations and paid $6,000 for her roof’s solar panels. He paid for half the cost of utilities and maintenance and all the costs of the Mazda motor vehicle. The deceased also made contributions of labour. His contributed labour and money for improvement of Mrs Rouse’s home, as if it was also his home.
Michelle Sleight and Michael Rouse, Mrs Rouse’s children, have not been challenged on their affidavits (those parts to which no objections were made to the admissibility of evidence). Their observations over a considerable period were consistent with observing the deceased and Mrs Rouse in a loving, domestic relationship under Mrs Rouse’s roof from no later than December 2010.
The deceased and Mrs Rouse travelled together to the Philippines in early 2011 and the deceased there and then told Michelle Sleight of his preference to marry Mrs Rouse and of his love for Mrs Rouse. The deceased and Mrs Rouse holidayed for two weeks with two of Mrs Rouse’s daughters and their families. Michelle Sleight and her own daughters spent June and July of 2011 with Mrs Rouse and the deceased. They stayed with Mrs Rouse and the deceased again in early 2012. Michelle hiked the Milford track in New Zealand with Mrs Rouse and the deceased in March 2013. They travelled together through the north island of New Zealand in January 2014. The deceased’s father passed away in August 2014. A couple of days after the funeral, the deceased told Michelle of his concern to ensure that Mrs Rouse was looked after financially and his desire to make a will to do that. Mrs Rouse did not attend the funeral of the deceased’s father because he asked her to go instead to the hospital where the deceased’s mother was an in-patient. He asked Mrs Rouse to be with his mother during that time. The deceased enjoyed many social occasions with Mrs Rouse’s daughters including Michelle’s fiftieth birthday party and her sister’s wedding.
The deceased provided a statement. I infer that it was for use in litigation in the Magistrates Court involving Mrs Rouse’s son Michael and his domestic partner. Whatever the purpose, the deceased stated:
I, Bruce Gore, 25 Kensington Drive, Munruben QLD 4125. I met Michael Rouse and Sharon Edwards in September 2010 when I began a relationship with Michael’s mother, Kathleen Rouse.
The deceased provided financial support and physical help to Michael Rouse and was a grandfather figure for Michael’s child.
Credibility of Mrs Rouse
There were a number of respects in which the counsel for the executor challenged the credibility or reliability of Mrs Rouse. His points were justifiable. Mrs Rouse chose not to alert the pension authorities about her alleged de facto status for fear it would affect her pensions. To her credit, she conceded that in court. She retained some estate chattels to which she knew she had no entitlement. She gave evidence that she acted upon advice from her solicitor at the time. I do not find otherwise. Notwithstanding that on some issues Mrs Rouse did not appear to have been reliable, on the central issue of the extent of the indicia of the relationship and its duration, I accept her. She claimed that she and the deceased did not spend a night apart after he moved into her home in 2010. That is contradicted by the Executor’s evidence of nights spent by the deceased at the Executor’s home. I find that the deceased spent some nights at his son’s home but that he passed the vast majority of his nights with Mrs Rouse.
A house does not lose its character as a person’s residence because the person often sleeps overnight, or for a week, at an adult son’s home.
The Executor’s counsel stressed that the deceased maintained private health insurance for a single person. I accept Mrs Rouse’s evidence that they discussed whether she should be insured on his policy and that she regarded the expense as unjustified. The discussion was consistent with a willingness to be financially interdependent.
I am satisfied that Mrs Rouse was in a de facto relationship with the deceased from September 2010, thereby satisfying the requirements of Section 5AA (1)(b) of the Succession Act 1981 (Qld).
I am satisfied that Mrs Rouse and the deceased lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death thereby satisfying the requirements of s 5AA (2) of the Succession Act 1981 (Qld).
I am satisfied that Mrs Rouse was the spouse of the deceased at the date of his death, within the meaning of “spouse” as that word is used in sections 5AA and 41 of the Succession Act 1981 (Qld).
Further provision
Section 41 of the Succession Act creates two issues. Logically, the two are determined successively. The first stage is to determine whether an order for provision should be made. This calls for a determination of whether an applicant has been left without “adequate provision” for his or her “proper maintenance and support”. The second stage, which only arises if the aforementioned determination is made in favour of the applicant, requires the court to decide what provision is fit to be made out of the deceased’s estate for the applicant. This approach is consistent with the approach approved in the High Court of Australia for applications made under slightly different legislation in New South Wales.[10]
First stage
[10]Singer v Berghouse (1994) 181 CLR 201 at 208-210.
I accept the submission for the Executor that authorities establish that:
(i)the phrase “adequate provision for the proper maintenance” means more than maintenance at a basic level. It means “maintenance and support … at a level or degree appropriate to the Applicant in all of the circumstances of the case.”[11]
(ii)in determining this, the Court has regard, amongst other things, to the Applicant’s financial position, the size and nature of the deceased’s estate, the relationship between the Applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate;[12]
[11]Family Provision After Death, Dickey, p.102.
[12]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.
The court does not have jurisdiction to re-write the testator’s will to accord with notions of fairness which one or another of the parties bring to the application. It has been called a human right that a person should be free to dispose of his or her property as he or she thinks fit.[13]
[13]Grey v Harrison [1997] 2 VR 359 at 366; see also Golosky v Golosky [1993] NSWCA 111.
The relationship between Mrs Rouse and the deceased was for four years. I accept that there was full-time cohabitation for four happy years.
The deceased had amassed his estate by the time the relationship commenced. Although the evidence is to the effect that Mrs Rouse made the deceased happy, there is no evidence that Mrs Rouse contributed in any way to the deceased’s wealth or superannuation. Because he was healthy, she was not called upon to nurse him. Mrs Rouse did not have and raise the deceased’s children. I accept the Executor’s counsel’s submission that those features distinguish Mrs Rouse from the concept of a traditional widow.
When the deceased died, Natalie held a temporary position as a Corporate Services Officer with the Department of Education. She was single and had no dependents. She rented and had no assets other than an old car. I infer that she had some debts. Natalie was generally in good health but reacted adversely to the deceased’s separation from her mother when she was a young girl which made her psychologically vulnerable, [14] and the deceased had some concerns about her mental health. They have proved to be well held concerns. The Executor, Trevor, was in good health, was employed as a diesel mechanic, single and had no dependents. Trevor owned his home at 78 Goman Street which was estimated to have then been worth about $400,000, securing a debt of $200,000.
[14]Affidavit NM Gore, court doc 29, Exhibit NMG-8.
At the time of the deceased’s death, Mrs Rouse was a 69 year old unemployed pensioner who owned her own home at Munruben, then valued at about $460,000. She and the deceased had begun repairs on the property and they were left unfinished. It meant that the master bedroom, ensuite and wardrobe were unusable. The fence on the left hand side of the property was falling down and needed repair. The sullage pump was worn and needed replacement. Plumbing repairs of $4,000 were required. While Mrs Rouse had no liabilities and $11,000 in the bank, she could not afford to proceed with repairs. Her son, Michael and Michael’s pre-school child were partially dependent upon Mrs Rouse. Michael was in part time employment earning $30,000 per annum. Mrs Rouse’s pension income of about $13,000 per annum was insufficient to meet her annual expenses of about $27,000.
At the date of the deceased’s death, Mrs Rouse was a bush walker and in reasonable health for her age. However, she needed cataract surgery, had a heart valve problem and a fatty liver. She also suffered from recurrent herpes for which the deceased was partially responsible. She contracted it from him, knowing of his condition. At her age, deteriorating health was foreseeable. She has since developed arthritis in one hand.
Mrs Rouse brought a damages claim against the tree lopping business which caused the deceased’s death. It was a claim for loss of dependency on the deceased. She recovered $285,000 after legal costs. Mrs Rouse is 72 now. Her life expectancy on the prospective tables is 17 years now and was about 20 years at the time of death. Her entitlement to bring the damages claim is something which was reasonably foreseeable at the time of the deceased’s death. The Executor submits that Mrs Rouse’s ability to institute a claim for damages for loss of dependency was a matter which can be taken into account in determining whether Mrs Rouse was left without adequate provision for her proper maintenance, education and advancement in life. I accept that.
I do not regard a foreseeable right to claim damages for loss of dependency caused by negligence as the equivalent of $285,000 cash at bank or the equivalent of a testamentary gift of that amount. The $285,000 Mrs Rouse received after litigation is relevant to the second stage issue of what is a fit provision. But to the first stage, it is only her liberty to pursue a claim for damages for loss of dependency which is the relevant. I regard value of Mrs Rouse’s arguable claim at the date of death, even as against an adequately insured defendant, as less valuable than the net amount she recovered.
So, when approaching the first stage, I summarise some relevant matters:
a) it was a four year relationship of happy cohabitation;
b) Mrs Rouse’s modest income left her out of pocket by $14,000 per year;
c) the main bedroom and ensuite bathroom and wardrobe were unusable due to renovation work; I infer it was a room for Mrs Rouse and the deceased to enjoy; the works needed to be finished;
d) repairs were needed for a fence and $4,000 for plumbing;
e) Mrs Rouse’s son and grandson were partially dependent upon her and she was able to assist by providing accommodation to them at her home;
f) Mrs Rouse had the benefit of a right to sue for her losses caused by the deceased’s wrongful death;
g) Mrs Rouse had a modest pension;
h) Mrs Rouse had enough in the bank to cover about 9 months of the shortfall caused by her excess of expenses over income;
i) Mrs Rouse had her home as her only other relevant asset and it was then worth about $460,000;
j) Mrs Rouse had some health problems one of which, a heart valve issue, might foreseeably require surgery and a herpes problem which was partly the fault of the deceased and contracted by her with his knowledge and acquiescence;
k) Mrs Rouse had no private health insurance;
l) the estate was worth more than $800,000 dollars;
m) the deceased had no dependents though he had three adult children;
n) two of the deceased’s children, Natalie and Trevor, were in their thirties, employed and with no dependents;
o) the deceased was aware that Natalie had some risk to her mental health;
p) Trevor had his own $400,000 home securing a $200,000 mortgage;
q) Trevor’s super was valued at about $30,000 and Natalie’s at about $66,000;
r) Natalie rented and drove an old car.
For the Executor, it was submitted that if Mrs Rouse were to sell her home and add its proceeds to her common law damages she would have adequate upon which to live for the next 17 years and thus, was not in “need”.
The issue is whether Mrs Rouse was, at the date of death, left with adequate provision for her proper maintenance and support. I find that she was not.
Second stage
It follows that I must now consider the second stage to determine whether to exercise the discretion to order the making of provision and to determine how much is a fit provision to make from the estate. It is logical to first consider whether the two chattels in dispute, the Mazda and the box trailer, form part of the estate or whether they were given to Mrs Rouse.
Are the Mazda and the trailer the estate’s chattels?
Mansfield J stated (for the Full Court) in Re Evans [1946] St R Qd 20 at 29-30:
It is therefore clear that the person seeking to establish a gift of chattels must show (a) an intention on the part of the alleged donor to make a gift and (b) that that intention has been effectuated by deed or by delivery. If delivery is relied upon, an intention to make a gift must be established positively and in contra-distinction to a mere permission to have the use and enjoyment of the chattel.
Mansfield J (at 29) said the true position was as stated by Lord Esher MR in Bashall v Bashall [1894] 11 TLR 152. The Master of the Rolls in that case specifically considered the difficulty of proving delivery of a carriage by a husband to a wife where they live together at the same residence. The comments are particularly appropriate when considering chattels such as the car and the trailer delivered to the joint home. It was observed by the Master of the Rolls that:
If the facts proved are equally consistent with the idea that he intended to deliver the thing to the wife so as to be her property and with the idea that he intended to keep it as his own property, then the wife fails to make out her case.
A similar approach has been taken since.[15]
[15]In re Cole, A Bankrupt [1984] 1 Ch 175, per Pearson LJ at 192 and Nolan v. Nolan [2003] VSC 121 at [158] per Dodds-Streeton J.
Mazda
The findings for Mrs Rouse, at their highest, are that deceased told some people that he was going to buy a car for Mrs Rouse and that he wished to do so. When the deceased discussed his desire to give Mrs Rouse the car she insisted on the deceased’s registering it in his name as she was concerned that the Deceased’s daughter Natalie might not approve of the deceased getting her a new car. The deceased bought the car and left it for Mrs Rouse’s use at their shared home. The deceased used it too, if he needed a clean vehicle and when he and Mrs Rouse went out together. The Mazda was bought, registered and insured in the deceased’s name. Mrs Rouse is noted in the Mazda’s insurance documents as a nominated driver, not as an owner or co-owner. The deceased paid the vehicle’s expenses.
The deceased’s acts are at least equivocal. They are more consistent with retaining ownership and responsibility for its expenses and registration while giving Mrs Rouse the use of it than they are with giving the car to her. Mrs Rouse fails to satisfy her onus of proof that the vehicle was a gift to her.
The Mazda car is the estate’s asset.
Box trailer
Mrs Rouse claims that the deceased gave her his box trailer in February 2014, because he no longer wanted to use it for work and said to her:
You might as well have this trailer for use in the garden.
Mrs Rouse said that following this she believed the trailer was hers and not jointly owned. However, her earlier version in the schedule attached to her solicitors’ letter dated 6 September 2014 was that she was entitled to retain the box trailer because it was “jointly held property.” She blamed the inconsistency on her solicitor although she accepted that she provided the information on which the schedule was prepared. The deceased continued to use the trailer (albeit to take rubbish to the dump) and he kept it registered in his name. I am not satisfied that Mrs Rouse has proved a completed gift of the box trailer. The deceased’s acts are equivocal, more consistent with retaining ownership and responsibility for its expenses and registration while giving Mrs Rouse the use of it than with giving it to her.
The trailer is the estate’s asset.
Fit provision, if any
Much changed after the deceased’s death. Natalie and Trevor suffered psychiatric illness, became unemployed and each of them recovered from the tree lopping entity damages for their nervous shock. Natalie has not been fit to return to work. Mrs Rouse recovered damages for loss of dependency. Natalie was involved in a motor vehicle collision. On 21 December 2015, interim distributions from the estate of $150,000.00 were made to each of the Executor and Natalie.
The deceased’s daughter Natalie is 33 years old. She is single and has no dependents.[16] She had a good relationship with the deceased.[17] She suffers from major depression and complex and prolonged bereavement because of the deceased’s death.
[16]Affidavit NM Gore, court doc 16, paras 30, 31.
[17]Affidavit NM Gore, supra, paras 32-48.
Because of her major depression, Natalie has been unemployed since October 2014.[18] She was hospitalised following a suicide attempt in November 2014.[19] She received income protection benefits from QSuper until her employment was terminated on 29 April 2016.[20] She has had no income since May 2016.[21] In addition to her psychiatric problems, she suffered a neck injury in a motor vehicle accident in December 2015.[22] Her ability to return to work depends on her response to psychiatric and psychological treatment.[23] She lives in rented accommodation and does not own a motor vehicle. Natalie received about $210,300.00 in damages for nervous shock as a result of the deceased’s death.[24] Her assets now are:[25]
[18]Affidavit NM Gore, supra, para 14; affidavit NM Gore, court doc 29, Exhibit NMG-8.
[19]Affidavit NM Gore, supra, para 26; Exhibit NMG-17.
[20]Affidavit NM Gore, supra, paras 14, 16.
[21]Affidavit NM Gore, supra, para 17; affidavit NM Gore, court doc 29, para 6.
[22]Affidavit NM Gore, supra, para 28.
[23]Affidavit NM Gore, court doc 29, Exhibit NMG-8.
[24]Affidavit NM Gore, supra, court doc 29, para 2.
[25]Affidavit NM Gore, court doc 29, para 4.
ING savings account number 4489 $31,289.46 ING everyday account number 4342 $595.52 CBA complete access account number 9096 $721.73 ME savings account number 0019 $246,204.32 ME everyday account number 3085 $106.00 Personal items $750.00 Total $279,667.03
In addition, she has superannuation of about $80,900.00.[26] She is ineligible for a Centrelink pension and is living on her capital.[27] Her monthly expenses total $4,236.70.[28]
[26]Affidavit NM Gore, supra, para 8.
[27]Affidavit NM Gore, supra, para 6.
[28]Affidavit NM Gore, supra, para 7.
Trevor, the Executor, is 35 years old. He is single and without dependents. He had a good relationship with the deceased. The deceased had his own room at Trevor’s house before and after the deceased sold his house at Beaudesert. Trevor has suffered major depression and prolonged unresolved bereavement because of the deceased’s death.[29] As a result, on 10 October 2014, he ceased work and received income protection from his superannuation.[30] He has been able to return to work on a casual basis, but his earning capacity is still restricted by his psychiatric condition.[31] Adherence by him to the treatment regime recommended for that condition has produced no noticeable improvement since 2016.[32] Medical opinion is that he should recover. He earned $11,687.16 from employment between 1 July 2016 and 5 March 2017.[33] In addition, he receives $2,730.14 per month as a partial incapacity benefit from his superannuation fund. His monthly expenses are $4,493.80. Trevor now has no mortgage over his property at Goman Street, submitted to be worth about $430,000.
[29]Affidavit TJ Gore, court doc 28, Exhibit TJG-18.
[30]Affidavit TJ Gore, court doc 15, para 18.
[31]Affidavit TJ Gore, court doc 28, paras 20(a), 21.
[32]Tx 1-64, lines 43 – 46.
[33]Affidavit TJ Gore, court doc 28, para 20(a)
Counsel for Mrs Rouse submitted that the Estate has a current value of $819,087.77 (after deducting administration costs, the legal fees that have been paid and ought to be payable, including the Applicant’s costs), from which the sum of $300,000 has been paid by way of interim distributions to Trevor and Natalie. The figures submitted by both counsel as to the precise value of the estate do not compare like with like. I need not resolve the differences having regard to my decision to accept the submission of the counsel for the estate as to the proper quantum.
In Trevor’s case, his future in terms of employability is positive.
It is submitted for Mrs Rouse that an apportionment of the net estate (inclusive of the superannuation and interim distributions) would be appropriate at a 40% share for Natalie, 30% share for Trevor and 30% share for Kathleen, equating to a value of $273,000.
The brevity of the relationship, the lack of financial contribution by Mrs Rouse, her reasonable financial security and her financial position’s superiority to Natalie’s and Trevor’s lead me to regard that as too high.
Mrs Rouse recovered $285,000 after the deceased’s death, as a result of her judgment against the tree lopping entity. That has reduced her needs and diminishes what is a fit provision for the court to make. Mrs Rouse used more than $50,000 of her judgment for house “maintenance”. I assume all the overdue repairs and incomplete renovations were among the maintenance items attended to. She retains about $208,000.
On the 3% discount table, $208,000.00 is the present value of a payment of $298.00 per week for the 17 years which is Mrs Rouse’s remaining life expectancy. Her annual expenses at the date of death exceeded her income by about $300 per week and I infer that they continue to exceed her income by a similar amount.
What is a fit provision may be more than the bare minimum necessary to ensure that an applicant is housed and fed.[34] What is a fit provision may go beyond the provision of “the bread and butter of life”, and extend to “a little of the cheese or jam that a wise and just [testator] would appreciate should be provided if circumstances permit”.[35] That approach must be balanced against the needs of the adult beneficiaries in this case and the modesty of the estate.
[34]Vigolo v Bostin (2005) 221 CLR 191 at 228-229 [115].
[35]Blore v Lang (1960) 104 CLR 124 at 135.
The appropriate provision from the estate is:
(a)a bequest of the Mazda motor vehicle;
(b)a legacy of $70,000.00 (i.e. the present value of a payment of $100.00 per week for Mrs Rouse’s life expectancy, discounted on the 3% tables).
It is appropriate to exonerate the legacy to Tracey Gore from the burden of this provision so that it is paid out of Trevor’s and Natalie’s shares of residue.
If the parties cannot agree upon an order for costs I give them liberty to make written submissions as to costs within seven days. I give the parties seven days to produce a draft order relating to the appropriate provision from the estate and which give effect to these reasons.