Terrence Seymour (the deceased) was born on 16 October 1948 and passed away on 15 July 2022 at 74. He created a Will on 26 June 2022, three weeks before he died, leaving his entire estate to Helen Mary Seymour (the defendant) and naming her his executrix. Mark Robert James Seymour (the plaintiff) was born in 1971. When the plaintiff was born, the deceased was married to the plaintiff’s mother, Jennifer, but their marriage was troubled. The plaintiff alleges that both he and Jennifer were victims of domestic violence at the hands of the deceased.
Jennifer and the deceased divorced in 1974, and there is no evidence that Jennifer or the plaintiff received any marital property settlement. The plaintiff submitted that the deceased did not support him financially or emotionally during his childhood. The acrimonious nature of their separation meant that the plaintiff grew up in an environment hostile to the deceased.
The Court had some challenges with the plaintiff’s narrative. He was born in 1971, and his parents likely separated when he was young. The Court acknowledges these difficulties but also considers the fear associated with violence and the instinct to protect his mother as likely to be remembered even at a young age. The deceased married the defendant in 1991. The plaintiff had limited contact with the defendant and the deceased to foster a relationship. When the defendant married the deceased, she knew little about his relationship with the plaintiff, who made little effort to promote their relationship.
The defendant submitted that she did not experience similar domestic violence after meeting and marrying the deceased in the late 1980s. The Court also considers the defendant a reliable source of information and can partially reconcile the plaintiff and her account. The deceased was born in 1948, and in the early 1970s, he would have been in his mid-twenties, potentially still impulsive and resistant to family responsibilities. By the late 1980s, when he met the defendant, he would have been closer to 40 and possibly less rebellious about family life.
However, the Court ultimately accepted the plaintiff’s version of events, citing his credibility, the impact of domestic violence on his relationship with his father, and the fact that the defendant’s testimony did not contradict the deceased’s excessive drinking, just the violence the plaintiff described.
Real property
The deceased was the official owner of the residential property, where he lived with the defendant in Baulkham Hills until the day before his death when he transferred half of the property to the defendant as a joint tenant. As a result, she inherited the deceased’s share of the property through survivorship following his death.
Bank Accounts
The other valuable assets in the deceased estate were term deposits and bank credit balances, most of which were held jointly with the defendant and were passed to the defendant by survivorship. The deceased’s estate consisted of chattels and money of less than $10,000, so the defendant did not obtain probate of the deceased’s will.
The parties openly discussed the potential award the Court might grant in this case. The defendants submitted that the Court be careful in awarding anything to the plaintiff and consider the requirements of s87 of the Succession Act before designating any part of the estate’s cash as the notional estate. However, she suggested that if making an award, it should be around $100,000. On the other hand, the plaintiff proposed a range of $250,000 to $400,000.
The plaintiff acknowledging that previous legal cases such as Luciano v Rosenblum (1985) 2 NSWLR 65
It seems to me that, as a broad general rule and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
indicating that a court would likely not interfere with the defendant’s right to live in the family home at Baulkham Hills and the financial security she gained from the income of the Queensland property. While both these assets could be considered notional estate, the plaintiff’s case focused on the cash assets within the estate, specifically those designated as notional estate, totalling $623,893.
Upon considering the arguments, the Court accepted an amount close to the higher end of the range presented by the plaintiff was suitable in this case. The initial question is whether the Court should designate any part of the cash in the estate as the notional estate.
reasonable expectations concerning property
The defendant submitted that in making an award, the Court should “not interfere with reasonable expectations concerning property…the substantial justice and merits” of making or refusing to make an order and other relevant circumstances.
The Court did not find the defendant’s argument convincing. The defendant suggested that even if she and the deceased did not jointly own their assets, the deceased’s intentions and legitimate expectations were for the defendant to benefit from his estate.
However, the Court can infer that neither the defendant nor the deceased could reasonably expect to be free from the plaintiff’s legitimate claims over the deceased estate. Similarly, the Court could conclude that the deceased transfer of the Baulkham Hills property into a joint tenancy with the defendant the day before his death indicates an awareness of the possibility of a claim by the plaintiff against his estate.
When Succession Act s 87(a) refers to “(a) the importance of not interfering with reasonable expectations concerning property,,” it specifically points to a particular property. The defendant had reasonable expectations that her ownership of the Baulkham Hills and Queensland property would not be interfered with because she lived in the former and derived income from the latter.
Additionally, both properties were acquired by the defendant and the deceased during their marriage:
- Paying off the mortgage on the Baulkham Hills property after the deceased inherited it from his father.
- Renovating.
- Extending that property.
- Paying down the mortgage on the Queensland property out of joint income.
The plaintiff argued that the deceased did not obtain his estate solely through his and his second wife’s financial success but also by a property inherited from his father in 1996, the deceased mortgage paid off by the deceased.
Great Aunt’s Estate
The other substantial component of the deceased’s estate came from the great aunt Betty’s estate, which, when she died in 2011, was worth approximately $1.5 million, while the plaintiff received $500,000; the rest passed to the deceased and his second wife. The plaintiff contacted the deceased to obtain more from the great-aunt’s estate, but the deceased refused. In 2011, the plaintiff signed a deed of release of any claims he might have had against the great aunt’s estate.
The deceased invested that money in a term deposit that remained largely intact until he died in 2022 and remained identifiable within the estate. Around $300,000 of those funds were transferred into another account and have since accumulated interest, but $1.1 million was still readily recognisable by the Court. Upon his death, the deceased and his wife held $1,247,787 in joint bank accounts.
Notional Estate
The court determined that half of this amount belonged to the deceased and passed to his wife by survivorship, was available in cash, and qualified as the deceased’s notional estate. If the notional estate provisions (which only exist in NSW) were not applicable, there would have been no assets in the deceased’s estate.
The plaintiff had a superannuation of $230,469.10 and a motor vehicle worth $15,500. He also held a joint bank account with his wife, with a balance of $171,818.32. His wife owned a motor vehicle worth $7,000, another with a market value of $44,000 and superannuation of $222,461.84. The combined family assets totalled $691,249.26.
Until late last year, the plaintiff earned $4,021 monthly after tax from a salaried real estate position but was engaged in a somewhat risky unsalaried commission-only real estate position at the hearing. His wife’s net monthly income was $7,224.33. The court ruled in the plaintiff’s favour and awarded him $385,000 from the notional estate.
However, the share of the cash inheritance from Betty that went to the deceased is mainly intact. It is the only sum sought by the plaintiff to designate as a notional estate – specifically, one-half of the funds on interest-bearing cash on deposit.
Regarding Succession Act s 87(b) and (c), in terms of “the substantial justice and merits” and other relevant matters, the defendant’s arguments also highlight the significant financial contribution she made to the couple’s joint assets by working actively in partnership with the deceased for approximately 12 years to generate income, and that the inheritance from Aunt Betty was partly the defendants as well as the deceased. But again, the plaintiff anticipated this argument by focusing on the deceased’s part of the deposit cash.
The decision
In the Court’s opinion, the caution in s 87 Succession Act does not hinder the Court from ordering provision from the deceased’s notional estate. All parties agree that the Court must make any family provision order from the designated notional estate due to the minimal assets left in the deceased’s estate.
The parties debated the amount of any such award. The plaintiff submitted that despite being an adult, he has urgent financial and personal needs, and an order for family provision would significantly contribute to his advancement in life at this stage.
The plaintiff submitted that his most pressing need was to attempt to purchase a home to provide his family with accommodation security and to enable him to use his income to cover expenses while paying off the house and building an asset for his retirement.
The plaintiff acknowledges that any order for provision out of the deceased’s estate may not be sufficient to allow him and his family to purchase a property with a mortgage immediately. The properties he has been considering range from $1.6 to $1.8 million, which appear unaffordable.