Meissner v Lindsay

This is an application for a family provision order pursuant to the Succession Act 2006. There are many problems facing the plaintiff. I am afraid to say that the claim is virtually hopeless. It seems to have been presented solely on the basis of the plaintiff's needs and financial position, about which I am far from satisfied. No consideration has been given to other considerations including the entitlement of the deceased to the exercise of her freedom of testamentary disposition.

The plaintiff is a former spouse of the deceased, whose name is Sharron Dale Meissner. He is also a judgment debtor in the sum of $112,674.56 to the defendant, who is the executor of the estate of the deceased. The judgment debt remains outstanding. The defendant has lodged a petition seeking a sequestration order against the plaintiff. The fact that the plaintiff is a former spouse brings into play the principle that persons in that category are not generally regarded as natural objects of a deceased's testamentary recognition: see Lodin v Lodin [2017] NSWCA 327 at [114].

In order to satisfy s 59(1)(b) of the Succession Act, a plaintiff who is a former spouse must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a previous familial relationship. The factors relied on must demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant. For the reasons that follow, I am not satisfied that there was any moral obligation on the part of the deceased to make provision for the plaintiff.

The plaintiff and the deceased were divorced by an order of the Family Court of Australia in 2008. Orders for the settlement of property between them were made by the Family Court of Australia in 2004. As Kirby P said in Dijkhuijs v Barclay (1988) 13 NSWLR 639, after referring to the policy of the law to promote finality of property settlement disputes made in the Family Court:

That is not the end of the legal and factual difficulties facing the plaintiff's claim. I adverted to the deceased's freedom of testamentary disposition. The plaintiff's claim seems to assume that it is a light matter for the Court to effectively disturb the will of the deceased. The will was made on 17 December 2008. The deceased died in 2013. By her will, the deceased left capital sums to various charities and then directed that the residue of her estate be divided equally between eight family members, being her nieces and nephews, her brother and sister. There was a separate legacy to her parents. No provision was made for the plaintiff. Nor does it seem to me to have been necessary for the deceased to do so.

It is appropriate to repeat what I said in Steinmetz v Shannon [2018] NSWSC 1090 at [29] and [30] in relation to a testator's freedom of testamentary disposition:

I also explained in Steinmetz the reason why considerable respect should be given to the judgment of a capable testator at [10]:

White JA in Sgro v Thompson [2017] NSWCA 326 at [80] ‑ [88] elaborated on the importance of these same considerations. In summary, his Honour emphasised that the deceased will have been in a better provision to determine what provision for a claimant's maintenance and advancement in life is proper than will a Court be when called on to determine that question months or years after the deceased's death, when the person best able to give evidence on that question is no longer alive.

There is yet another problem confronting the plaintiff's claim. I am hearing the second half of proceedings that were commenced in 2013. The first half was a claim by the plaintiff for the revocation of a grant of probate of the will of the deceased. That claim was based upon what the plaintiff contended was a 2010 will of the deceased. Robb J heard that claim and gave a lengthy reserved judgment in June 2016. His findings were excoriating of the credibility and honesty of the plaintiff. His Honour held, in substance, that the 2010 will, which the plaintiff propounded, was a fabrication. The findings reflect very poorly on the plaintiff. Those findings were as follows:

In addition to those findings, Robb J made numerous other findings expressly rejecting the credibility and honesty of the evidence given by the plaintiff. Some of the evidence on which his Honour remarked included an assertion by the plaintiff that he was not divorced from the deceased or that he did not know he was divorced. His Honour found, at various points in his reasons, that the plaintiff's evidence was ‘incredible’ or that he did not find it to be credible.

The fact that the plaintiff propounded a fabricated will and sought to have this Court make an order revoking the grant of probate to the defendant is a very serious matter, reflecting on the merits of his claim. It probably also reflects another aspect of the evidence which presents a serious difficulty to the plaintiff. The plaintiff has had a significant history of criminal conduct prior to 1992. Robb J referred to some aspects of it in his reasons. His Honour referred to the conviction of the plaintiff in 1992 in the District Court in Sydney for attempting to pervert the course of justice and his sentence for a term of imprisonment of 12 months, of which he served nine months. It is probably no coincidence that also in 1992, the plaintiff was arrested with many others and charged with major drug supply. This was, apparently, a very lengthy trial which ended inconclusively. But consistently with much else of the plaintiff's evidence, he sought to evade responsibility. He blamed it all on ‘corrupt police’.

Robb J also referred to the following matter at [86]:

Those matters were only part of the picture. The criminal record of the plaintiff goes back to his childhood. It includes larceny, break, enter and steal, more larceny, assault occasioning actual bodily harm and the attempt to pervert the course of justice to which I have referred. I accept that engagement in illegal conduct is not necessarily ‘a bar to a claim under the Act’: Hampson v Hampson [2010] NSWCA 359 at [95]. It is nonetheless a troubling picture.

Against the background of those matters, it is relevant to consider the state of the relationship between the plaintiff and the deceased. It is perfectly clear from all of the evidence taken as a whole that the marriage was unstable and that the deceased was frequently unhappy. They had not lived together in any significant way since August 2000. The plaintiff had an affair with his secretary and established a relationship with her. They had a son together in 1992.

I am satisfied that the plaintiff and the deceased had very little contact after 2000 other than what was necessary because of their joint ownership of a property at Windsor. It is also clear that the deceased made a number of statements indicating her wish to remove the plaintiff from her life and to sever all ties with him. I accept that at the time of the orders for property settlement made in the Family Court of Australia in 2004, the deceased said to the defendant, who was acting on her behalf, ‘I wish to sever the last tie I have with Joe’.

In November or December 2008 when the deceased instructed the defendant to prepare her will, I accept that she said words to the effect, ‘I'm now divorced from Joe and I want to leave my estate to my family.’ She also said, ‘I want to leave a substantial amount of money to charities and I want my nephews, nieces, brother, sister and parents to inherit my estate’.

I accept the evidence of her brother Mr Smith that the deceased said to him in approximately 2002, words to the effect, ‘You know that Joe and I are separated. He lives at Fairfield House in Windsor and I'm renting this unit at Murray Street, Pyrmont’, to which Mr Smith responded, ‘You've been separated for years now’, to which the deceased replied, ‘Yes, I have. The marriage is over. I'm completely over Joe. He has lied it me for years. He never came home and was always out gambling. He also had a son, Joseph junior with his secretary, Michelle Shi. That was the final straw’.

I also accept that not only did the deceased live independently from the deceased from about 2000, but that from at least 2002 she maintained relationships with some other men and regarded herself as independent from the plaintiff. In approximately 2008 the deceased said to Mr Smith, ‘I have no feelings for Joe and if it wasn't for the Fairfield House property at Windsor I would have nothing to do with him. Around February every year I have to chase up Joe for the figures for Fairfield House to complete my tax returns’. There is nothing in the evidence which suggests to me that there was any residual feeling of affection, let alone moral obligation, by the deceased to the plaintiff.

The remaining aspect of the evidence relates to the plaintiff's financial position. I should point out that I did not feel satisfied that I could confidently accept any assertion he made about his assets or his financial position. He provided no objective corroborative documentary evidence to support the assertions he made. Indeed, his evidence and submissions struck me as being somewhat unreal.

The fact is that the plaintiff is the registered proprietor of the property known as Fairfield House at Windsor. There was no formal valuation of that property, but the informal valuations produced by both sides indicated a range between approximately $3 million and approximately $1 million. He is also the registered proprietor of an apartment in Castlereagh Street, Sydney. He contends that he holds the property on trust for Michelle Shi but no evidence of a trust was placed before me. Michelle Shi was not called. He owned a property at Marangaroo, which he sold in recent years for $420,000. He owns several old motor vehicles, including a Rolls Royce Silver Spirit, a Mercedes 500CLK and an old Saab motor vehicle.

Most significant, when considering the financial position of the plaintiff, is his real source of income. The plaintiff is a professional poker player who has such a high level of expertise that he is invited around the world with expenses paid to play poker in professional tournaments. He said to me that he never lacks for food because it is always provided by casinos, including Star City Casino. He said, somewhat implausibly, that he does not keep a record of what he wins and loses. It is clear to me however that the amounts involved are not insignificant. He seems to be frequently overseas at tournaments. The plaintiff also obtains some money from counselling work. He says that he is a motivational counsellor and contends that he has a degree in psychology.

It is impossible to form a view that the plaintiff genuinely has the needs for which he contends. I am satisfied that the position is not as dire as he suggests. His evidence was replete with exaggeration and falsity. Certainly there is no reason why he cannot continue as he has done for some years. His health is poor but that probably reflects his age and lifestyle. He complains that the Fairfield House property needs significant repair and renovation, but that is something for which he is responsible. He says that he currently lives with the woman who bore his son, Michelle Shi, but that the relationship has broken down. That is also something for which he is responsible. He receives a small allowance from Centrelink, but given the complete absence of reliable, objective documentary financial evidence, it is not possible to go further.

The real point is that, whatever the plaintiff’s financial position, I am not satisfied that the deceased's decision to leave her estate to her nephews, nieces, siblings and parents was a failure of any duty by her to the plaintiff in the circumstances of their relationship, including the breakdown of their marriage, divorce and property settlement.

I have not overlooked the size of the deceased's estate. The gross value of the estate at the date of death was $5,369,520.22. The greatest part of the estate represented the deceased's interest in a business known as Total Retail Advertising Pty Ltd, which was sold shortly before her death. The evidence satisfied me that the success of that business was almost entirely the product of the input, skill and hard work of the plaintiff. Despite assertions to the contrary, there was no evidence on which I could confidently rely that the plaintiff made any contribution to the success of that business.

The fact that the estate is reasonably substantial is not necessarily to the point. As I said in Steinmetz v Shannon at [31]:

At [32], I referred to the explanation to the same effect by Taylor J in Stott v Cook (1960) 33 ALJR 447 at 435 to 453 who said:

The same explanation applies with greater force in the case of a plaintiff who is not a disappointed son or daughter, but is a former spouse who had a tempestuous and unstable relationship with the deceased and who entered into a property settlement with her which was the subject of formal orders made by the Family Court of Australia in 2004.

This litigation seems to have involved one misconception after another. Not only did the plaintiff completely fail in the first part of his claim before Robb J, but he has failed to pay the costs which are the subject of that judgment against him. He has paid $20,000 into the trust account of the defendant's solicitors pursuant to an order made by Hallen J as a result of his responsibility for the earlier vacation of his hearing date. He has also been required to pay $30,000 into Court as security for the defendant's further costs of this hearing. In the light of the evidence that I have heard, it was demonstrably prudent that those orders for security of costs be made.

For those reasons, I dismiss the claim. I order the plaintiff to pay the defendant's costs.