Adkins v Adkins
[2009] TASSC 8
•11 March 2009
[2009] TASSC 8
CITATION: Adkins v Adkins [2009] TASSC 8
PARTIES: ADKINS, Mary Helen
v
ADKINS, Brian Charles
ADKINS, Colin Jeffrey
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 155/2008
DELIVERED ON: 11 March 2009
DELIVERED AT: Hobart
HEARING DATE: 28 November, 1 December 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Succession – Family provision and maintenance – Failure by testator to make sufficient provision for applicant – Whether applicant left with insufficient provision – Claims by spouse – Whether right of residence during widowhood adequate.
Testator's Family Maintenance Act1912 (Tas).
Lord v Lord [2003] TASSC 99, referred to.
Aust Dig Succession [310]
REPRESENTATION:
Counsel:
Applicant: T J Williams
First respondent No appearance
Second respondent In Person (C J Adkins)
Solicitors:
Applicant: Gunson Williams
Judgment Number: [2009] TASSC 8
Number of paragraphs: 41
Serial No 8/2009
File No 155/2008
MARY HELEN ADKINS v BRIAN CHARLES ADKINS
and COLIN JEFFREY ADKINS
REASONS FOR JUDGMENT TENNENT J
11 March 2009
Mary Adkins ("the applicant") is 84 years old. She is the widow of Charles Ernest Adkins ("the deceased") who died on 7 July 2006. The deceased was born on 15 July 1915, and was 90 years old when he died. The applicant, in her capacity as executor, applied for and was granted probate of the deceased's will on 28 November 2007.
By his will, the deceased gave a life interest in a property at 6 Barton Avenue, Triabunna to the applicant on condition that she paid the outgoings in respect of the property. Upon her death, the property was to be sold and the proceeds of sale and the rest of the deceased's estate were to be divided between his three sons or, if they predeceased him, their heirs. There were no other beneficiaries, and the deceased's will made no other provision for the applicant. She now makes application pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), for provision out of the estate of the deceased on the basis she has been left without adequate provision for her proper maintenance and support. There has been no other application made for such provision.
Family relationships
The applicant married the deceased on 14 August 1969. He was then aged 54. It was the second marriage for the applicant and the third for the deceased. At the time of the marriage, the deceased had four children, three sons and a daughter, and the applicant had two living sons. The deceased's children were Phillip Adkins, Colin Adkins ("the respondent"), Garry Adkins and Helen Adkins. Garry Adkins died prior to his father's death, but after the will was made, and his son Bryan stands to inherit his father's share in the estate. There was no provision in the deceased's will for his daughter Helen.
The deceased's will and his estate
The applicant was appointed sole executrix of the deceased's will made 7 June 1980. At the time the will was made, the deceased had just sold a property at Gawler and purchased the home at Triabunna. He had also purchased a fishing boat, the "Juanita", and some fishing licences, with the intention that he and his son Garry would operate a fishing venture together. At that point in time, the applicant and the deceased had been married for about 11 years and had been living at the Gawler property, a farming property, since their marriage. It was a property owned by the deceased.
Prior to the marriage, the applicant lived at another property in Gawler which had been gifted to her by her father. The deceased's own property was nearby. Shortly after the marriage, the applicant and the deceased made the decision that they would live at the deceased's property where he then lived with his eldest son, Garry. At or around the same time, the applicant's property was gifted to her two sons. The sale of the deceased's property at Gawler and the move to Triabunna arose because the deceased decided that he could no longer continue to work the farm. The applicant and the deceased made the decision to sell the farm and move to Triabunna where the deceased had grown up.
The Triabunna property was purchased in June 1980 and the deceased moved there straight away. The applicant remained in Gawler until the end of the year to complete work commitments and then moved to the Triabunna home. The deceased and his son Garry thereafter operated the fishing enterprise out of Triabunna. As a result of an incident which left him unable to work for some time, the deceased began receiving an old age pension. His son Garry obtained his skipper's licence in about 1982, and from then the deceased effectively retired from fishing, leaving his son to carry on. In about 1990 the boat and the associated crayfish pot entitlements were sold for a total of $169,000. $152,000 of that amount went to the deceased's son Garry, with the remaining $17,000 being retained by the deceased. There was some dispute as to whether the money which went to the son was a gift or a loan. If it were a loan, it was not repaid, nor was there apparently any expectation in the end that it would be.
The deceased did not make any alterations to his 1980 will to accommodate the changes in his asset position. At the time of his death, the deceased's only asset of any significance was the Triabunna home. It was valued in April 2008 for the purpose of the proceedings at $268,000.
The law
The Act, s3(1), provides that if a person dies, and, in terms of his will, any person entitled to make application for provision out of his estate is left without adequate provision for his or her proper maintenance and support thereafter from the estate, that person may make application for such provision. A judge may, in his or her discretion, order that such provision, as the judge, having regard to all the circumstances of the case, thinks proper, shall be made out of the estate. The judge is also empowered to make any order, including an order as to costs, as the judge thinks fit.
The Act requires the judge hearing such an application to enquire fully into the estate of the deceased person. The judge is to have regard, amongst other things, to the net value only of the estate of the deceased person as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the estate is subject, and to whether a claimant is entitled to any independent means, whether secured by the deceased during their life or from any other source at all.
An application may be refused if the character or conduct of the applicant is such that, in the opinion of the judge hearing the matter, it should disentitle the applicant to any provision. The Act, s8A, permits a judge, upon the hearing of an application, to have regard to the reasons of the deceased, insofar as they are ascertainable, for making the disposition that he did by his will or not making provision, as the case may be, and may accept evidence about these matters as he or she considers sufficient, whether or not that evidence would otherwise be admissible in a court of law.
In Lord v Lord [2003] TASSC 99, a case which counsel for the applicant indicated was remarkably similar to the present factually, Cox CJ recognised that the determination of an application such as the one with which I am dealing involves a two stage process. He said at pars8 – 10:
"I think there can be little doubt that the provision only of a right of residence in the house she was obliged to insure, keep adequately maintained and the rates of which she had to meet, was inadequate in all the circumstances. Though her present fortnightly expenditure is remarkably modest, the applicant has virtually no resources to meet unexpected eventualities. She is presently 74 years old and may well be forced through age and failing health to give up her right of residence in the beachside property purchased by the testator. If that were to come to pass, she would have no means of purchasing an alternative residence or of putting up any capital sum necessary to gain entry into a suitable aged care facility.
In Golosky v Golosky (unreported New South Wales Court of Appeal 5 October 1993), Kirby P referred to some of the principles relevant to a widow's application under similar legislation. At 10, he said:
'It has been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies.'
At 11, he continued:
'A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence the spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just.'
In the absence of any power of sale and reinvestment in other premises, such as would be provided by the Settled Land Act 1884 were this a full life tenancy, and furthermore in the absence of the provision of any fund to meet rates, insurance and repairs on the property, I find that the testator's provision of a mere right of residence during widowhood without even a gift of the household contents owned by him was inadequate for the applicant's proper maintenance and support after his death.
The determination of an application such as this involves a two stage process. As Mason CJ, Deane and McHugh JJ said in Singer v Berghouse (1994) 181 CLR 201 at 208:
'The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.'
At 209 - 210, their Honours continued:
'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 (1938) AC at 476). 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 that particular case, the testator had adult children who were to take the residue of the estate. As in the present case, there was no evidence before the Court to indicate the financial position of the adult children and grandchild entitled to the residue of the estate. The Court proceeded on the basis of inferring in those circumstances that they were not in need of provision from the estate.
What is the estate of the deceased?
This is generally an easy question to answer. In the present case it is not. According to probate documents, the estate of the deceased consisted of the home at Triabunna, the title to which was in the name of the deceased alone, and was unencumbered.
However, the day before the hearing, the respondent filed an affidavit in the proceedings. In that affidavit, which the respondent relied on, he said that on 15 July 2005 the deceased executed an enduring power of attorney in his favour and that, on 12 June 2006, he, the respondent, had, under the authority of that power of attorney, executed a contract of sale of the Triabunna home. The deceased died less than a month later. In his affidavit, the respondent said that, by the contract, his father had sold the Triabunna home to The Adkins Family Trust for $197,800. He said that the contract provided for a deposit of $600, to be paid by a payment of $100 on the execution of the contract, and equal consecutive annual payments of $100 with completion to be on Monday 11 June 2012. He also deposed that the deposit instalments were paid up to date and "are held in trust by Adkins".
The respondent gave oral evidence in the proceedings and was then cross-examined. When he gave evidence, he did not initially produce the contract. Counsel for the applicant called for it to be produced. When it was produced in the form of an original unstamped document, it became apparent that the respondent had not, in his affidavit, disclosed the entirety of relevant terms. According to the contract, the purchaser was entitled to vacant possession of the property upon payment of the whole of the deposit, which, if payments were made as provided for, would be in June 2011. Further, the balance of the purchase price of $197,200, together with interest, was to be paid by way of monthly instalments of $3,615.33 commencing on 11 July 2012, with the final payment to be made on 11 June 2017. According to a trust deed which the respondent produced when it was called for, the beneficiaries of The Adkins Family Trust are the children of the respondent and his wife. If the contract is valid, the practical effect of it is that the applicant will be required to vacate the Triabunna property by at least June 2011, with the estate thereafter entitled to receive from July 2012 onwards monthly payments towards the purchase price. The other practical effect would be that the deceased's testamentary intentions could not be given effect to insofar as the applicant is concerned.
The applicant has called into question the validity of the power of attorney and, as a consequence, the contract executed by the respondent under its purported authority. The evidence of the respondent was to the effect that the power of attorney was signed shortly after he visited his father in Tasmania in June 2005. For that power of attorney to have legal effect, the deceased would need to have had the mental capacity at the time it was executed to understand the nature of the document he was signing. While the authority given by an enduring power of attorney continues during a period of mental incapacity of the donor, that mental incapacity cannot exist at the time the power of attorney is executed.
By the time that power of attorney was signed, the deceased had had two strokes. An assessment completed by a Dr Roger Cox on 26 April 2005 for the purpose of a carer's allowance application by the applicant indicated that the deceased was at that time cognitively impaired. The deceased was unable, for the purpose of that application, to answer a number of questions put to him in the form of what was described as an abbreviated mental test. Further, where the form required an assessment of the deceased's behaviour, the doctor indicated that the deceased showed signs of memory loss most of the time, and had withdrawn from social contact most of the time. The applicant described the deceased at the time as being unable to manage his own affairs. The respondent, however, said in his affidavit "it is true over a period of time working with numbers would (in Charles's words at the time) muddle him up". It was unclear from the context in which this information appeared as to whether the respondent was referring to the period after the deceased's 2002 stroke or at the time of the execution of the power of attorney.
Counsel for the applicant submitted that it was unnecessary for this Court to determine the validity of the power of attorney, and as a consequence, the contract, because what the applicant was asking the Court to do, was make an order entitling her to the whole of the deceased's estate, whatever in the circumstances that turned out to be. If the power of attorney were found to have no force and effect, then the contract would have no effect. In those circumstances, the estate would consist of the Triabunna property unencumbered. If the power of attorney were found to have been validly executed and the contract has effect, the property at Triabunna still remains part of the estate, subject to the rights accruing to The Adkins Family Trust pursuant to the contract. The estate would be less valuable in those circumstances and of limited use to the applicant.
It is not, however, an issue which the Court can simply ignore, given that the net value of the estate is relevant to any order the Court might make. The respondent, in effect, maintains the power of attorney and contract are legally binding documents which should be given effect to, and were executed to give effect to his father's wishes. There are, in my view, however, a number of factors which militate against that position. The power of attorney was executed at a time when independent evidence exists that the deceased was not of sufficiently sound mind to know what he might have been signing and to instruct the respondent as to his wishes. The power of attorney was not registered for nearly a year after it was signed, and only a matter of a few weeks before the deceased's death. The contract executed pursuant to the power of attorney was also executed within a very short time before the death. The contract not only provided significant benefits to The Adkins Family Trust (a property at potentially significantly less than market value, possession of the property on payment of an almost nominal sum, and payments deferred over a number of years), but also a situation for the applicant where the life interest in the property intended for her by her husband's will could not be given effect to. The existence of the power of attorney and contract was also hidden from the applicant at the time of, and in the period after, her husband's death. Their existence came to light when the possibility of these proceedings became known.
The other consideration is the evidence of the respondent and his approach to these proceedings. He has clearly set out to do whatever he could to ensure that the applicant either received nothing, or very little, from the deceased's estate. He has set out to ensure that not even the terms of the deceased's will could be given effect to. He has attempted to portray the applicant as someone who tried to get her husband to sign another will in her favour when he was ill, and as someone who was lying to the Court about the extent of her wealth. He acknowledged during the course of his evidence that he was prepared to lie to serve his own purposes. An example was in a letter which became exhibit A7. This was a letter written by the respondent to the applicant's solicitors dated 27 June 2008. In that letter, the respondent for the first time raised the existence of the power of attorney and contract to which reference has been made. He also said, "A will, post date of 9th June 1980, and in sympathy with the effects of1/.(above) was drawn and executed." The same information was repeated in a letter which the respondent wrote to the same solicitors dated 9 October 2008. The respondent admitted in Court that there was no such will and that in fact he had lied in those letters. The information had been provided to the applicant's solicitors in the context of the proposals being put to her to settle her claim. The respondent also told the Court that he had considered preparing and executing another will for his father using the power of attorney. The foregoing facts demonstrate the respondent's willingness to lie to achieve his own ends, and to manipulate information to serve his own purposes. For these reasons the respondent is not accepted as a witness of the truth.
On the evidence available to me, and accepting that the standard of proof to be met in relation to such matters is the civil standard, that is on the balance of probabilities, I am satisfied that the power of attorney which purports to have been executed by the deceased in July 2005 was executed at a time when he did not have the mental capacity to understand the nature of the document which he was signing, nor to indicate to the respondent what he wished to have done with his estate. In those circumstances, and notwithstanding that the respondent has been able to formally register the power of attorney, I am satisfied that the document should not be given any legal effect. As a consequence, the contract which purports to have been executed pursuant to that power of attorney should also have no effect.
The consequence of those findings is that I am satisfied that at the date of death, the deceased's estate consisted of the property situated at 6 Barton Avenue, Triabunna unencumbered by any mortgage or interest of any purchaser under a contract.
Has the applicant been left without adequate provision for her proper maintenance and support?
Counsel for the applicant submits that she has. He seeks an order that, in lieu of the provisions set out in cl 3 of the will, and subject to the payment of just debts, funeral and testamentary expenses, the whole of the estate be held for the applicant for her own use and benefit absolutely. The effect of such an order will be, if I am right as to my conclusions about the ineffectiveness of the power of attorney and contract, that she receive the home at Triabunna outright. If, on the other hand, my conclusions are wrong, it will entitle her ultimately to the benefit of the sale proceeds of the Triabunna property.
At the time of the hearing, the applicant was 84 years old. She has resided in the Triabunna home for nearly 30 years. The marriage of the applicant and the deceased subsisted for nearly 37 years. There was no evidence to suggest the relationship between the parties was not a loving and caring one throughout that time.
The applicant's position was that she had a small car, a 1992 Corolla valued at about $4,800, a bank account to which her pension was paid, which had a balance of $5,000 when her affidavit was sworn, some household goods, and modest expenses, which exceeded her pension income. She wished to be able to have a fee simple interest in the Triabunna home so that she could sell it and move back to the Ulverstone area where she had family and friends. She had neither family support nor close friends in the Triabunna area. She wished to be able to purchase alternative accommodation there and eventually, if she needed to, sell that to provide a bond for nursing home accommodation. She had enquired as to the cost of a small unit or home and found it to be between $170,000 and $230,000. She said a nursing home bond would be about $100,000.
The respondent disputed the applicant's evidence as to her financial position. He maintained that she had accumulated wealth in the form of monies in bank accounts which she was not disclosing and hence she had not been left without adequate support. He cross-examined her extensively as to bank accounts she had when she married the deceased and the nature of her contributions from her income during the marriage to household expenses.
The evidence disclosed that the applicant, on leaving school in her teens, completed a commercial course and entered the workforce as a typist/cashier. She continued with this type of work until she married and had children, and thereafter worked part-time as a pay mistress or bookkeeper. She continued this type of work for the first several years of her marriage to the deceased. For the first 4 or 5 years of the applicant's marriage to the deceased, his eldest son Garry remained living with them. Garry moved out when he married in 1972. The deceased's other two sons predominantly lived with their mother in Victoria, but spent periods of time living with the applicant and the deceased, during which the applicant assisted with their care. The child Helen never lived with the parties. She is severely handicapped and has always lived with her mother in Victoria since her parents' separation.
During the marriage of the applicant and the deceased, the deceased handled most financial arrangements of the parties. The applicant was not involved in the payment of any accounts or significant bank transactions. She said she contributed the earnings she did receive to the parties' household by purchasing household items such as groceries. When the applicant turned 58, in or about 1982, she began to receive an age pension. She contributed her pension income to household expenses.
In 1995, the deceased suffered a stroke. As a consequence, his health was affected to the extent that he had difficulty managing the parties' affairs. The applicant helped him. The deceased had a second stroke in 2002. From that time on, he was unable to manage the parties' affairs at all, and the applicant took over the role. The deceased had no effective relationship with his daughter Helen, seeing her only when his son Phillip brought her for a short visit in 2004. Both Phillip and Colin Adkins lived in Victoria and only visited from time to time. The primary responsibility for the deceased's care rested with the applicant.
The affidavit of, and oral evidence given by, the respondent reflected a significant level of bitterness towards the applicant. His affidavit in particular contained material of little relevance to the Court proceedings which appeared designed to diminish the applicant in some way. I refer, for example, to his comments about having observed the applicant to have emptied quite a few glasses of cask port wine It is unfortunate that matters such as the present engender, rightly or wrongly, that type of feeling. However, the Court must make its decision based on the facts accepted by it. The opposition by the respondent to the applicant's claim was based largely on two matters. Firstly, the respondent asserted that the applicant had not contributed any of the money which she had earned or received during the course of her marriage to the deceased to the support of the parties, but had "squirreled" that money away and now had significant resources which she was not disclosing. Secondly, the respondent asserted that there had been an agreement between the applicant and the deceased at the time of their marriage pursuant to which any assets of the deceased were to remain his alone for the ultimate benefit of his family. The applicant has strenuously denied both of these assertions.
Dealing with the first assertion, the applicant's affidavit sworn in April 2008 did not, unsurprisingly, deal with the issue of what bank accounts the applicant maintained during the course of her 37 year marriage to the deceased. In her affidavit, the applicant referred to only two bank accounts. One was a joint account held by her and the deceased at the time of his death, which she said then had a balance of approximately $7,000. The other was an account in her own name held at the time of her husband's death to which her pension was deposited and which she said had a balance of about $5,000 at the time the affidavit was sworn. The respondent cross-examined the applicant for approximately 2½ hours about what bank accounts she had during the course of her marriage, what bank accounts existed at the time of the deceased's death, and the level of her financial contribution to the marriage over the entirety of it.
At the time this cross-examination was conducted, the applicant was 84 years old. During the course of the cross-examination, she became confused about just what the respondent was asking her, at times gave contradictory answers and at other times was unable to recall matters about which she was questioned. The respondent relied on this as being evidence that she was being untruthful about her financial position as at the date of the deceased's death. He also relied upon it as supporting his contention that she had not made any financial contribution to the marriage during the course of it. With respect, the cross examination, in my view, did not achieve any of those aims. The questioning by the respondent was repetitive, imprecise and confusing. He, at times, put matters to the applicant as being matters she had already stated when she had not, thus potentially confusing her further. In any event, as I pointed out to the respondent a number of times, the details of a bank account or accounts held by the applicant in 1969, and whether or not the applicant paid for household groceries at that time, were not matters which were particularly relevant to the issue the Court was being asked to determine.
The cross-examination of the applicant by the respondent was limited by me because the respondent continued to cross-examine in a manner that I have identified, notwithstanding that he had been told on numerous occasions to move along with other topics. At the conclusion of the hearing, the respondent maintained that, had he been permitted to continue unrestrained with his cross-examination, he would have elicited evidence which would have supported his contentions. With respect, he did not do so during the entirety of the period during which he did cross-examine the applicant. That cross-examination implied that the respondent had documents which supported his assertions as to the existence of the applicant's undisclosed wealth. However, despite being invited to do so, the respondent put no such documents to the applicant nor did he ever present any such documents to the Court. Having regard to the contents of the applicant's affidavits, the manner of cross-examination by the respondent, and the refusal by the respondent to produce to the Court any documents which might have supported his assertions about the existence of hidden bank accounts of the applicant, I have little hesitation in being satisfied as to the following matters. Firstly, that the only bank accounts existing at the date of the deceased's death were the joint account of the parties and the applicant's pension account to which she referred in her affidavit material. Secondly, within the limits of what was clearly a relatively small amount of income over the years of her marriage to the deceased, the applicant contributed that income to the benefit of the parties' household and did not "squirrel" money away over the years of her marriage. Thirdly, the applicant did not, at the time of her husband's death, have significant accumulated funds available to her which she was not disclosing.
In dealing with the second assertion, the applicant's evidence was that her marriage to the deceased was a conventional one and that at no stage was there an agreement that they would keep their assets separate. The gift of her property acquired from her father to her children was a matter discussed with the deceased and done with his approval. Her evidence was to the effect that her husband had given her to understand that the property at Triabunna would be hers upon his death. The respondent, on the other hand, told the Court that his father had told him, he did not say when, that he had entered into marriage with the applicant pursuant to an agreement that their respective property and financial dealings would remain their own at all times and would never be drawn into division amongst their respective families under any circumstances. The respondent said that the applicant and the deceased conducted that ethos throughout the entire marriage.
The first point which must be raised in relation to this assertion is that the respondent was 12 years old when the applicant and the deceased were married. At that time, he did not live with his father, only coming to do so approximately 4 years later for a year. It is unlikely, nor does the respondent suggest, that the deceased discussed the basis of his marriage with the respondent at that time. The respondent's evidence was vague as to any discussions about the issue, and, at no stage in his evidence did he detail any facts which might have supported the statement that the applicant and the deceased conducted this "ethos" throughout their marriage. As a matter of fact, the applicant's gift of her real estate to her children is wholly inconsistent with such an "ethos". It is unlikely the applicant would have disposed of a property in that manner had she known that she might eventually need it for her support because of an agreement with her husband.
I do not accept the evidence of the respondent as to the existence of the agreement he maintains existed between his father and the applicant. I have already made reference to reasons why the credit of the respondent in these proceedings has been adversely affected. I accept the evidence of the applicant that her marriage to the deceased was a conventional one and that she had been given to understand by the deceased that the property at Triabunna would be hers to sell on his death as she deposed.
I am satisfied that, save for the bank account to which her pension is paid, her car and household goods, the applicant has no assets. There was no evidence that, prior to his death, the deceased made any provision for the applicant's maintenance and support in some way other than by what was in his will. I am satisfied the applicant's only income is a pension, that her expenses are modest, and that she has no real resources to accommodate unforeseen expenditure on medical expenses or other capital outlay.
In all the circumstances, the words of Cox CJ in Lord, set out in par11, are entirely apposite to this case. I am satisfied that the applicant was left by the deceased without adequate provision for her maintenance and support.
What provision in all the circumstance of the case is proper for the applicant?
The estate is limited, whichever view of what it consists of is correct. At best, it consists of the Triabunna home in which the applicant and the deceased had lived for nearly 26 years when the deceased died. While the deceased had clearly hoped to preserve his estate as far as was possible for the benefit of his own children, there has been no evidence presented to the Court to demonstrate that any of them are in any need. On the other hand, the applicant has minimal assets and her only source of income is an age pension. She has no capital to provide a roof over her head or to provide for unforeseen capital outlay.
The only way in which the applicant can be provided for is for there to be an order as she seeks. If the estate is unencumbered by any interest of a purchaser under a contract, the applicant will be free to sell the Triabunna home and return to the north west coast. The proceeds of sale will enable her to provide for accommodation and her reasonable needs. If it is so encumbered, the applicant will have the capacity to remain in the home until possession is sought from her and to, at least from 2012, receive regular payments in respect of the proceeds of sale.
The application for provision is therefore granted. Provision is to be made out of the estate of the deceased to the applicant by, in lieu of the provisions in cl 3 of the will, providing that, subject to the payment of all just debts, funeral and testamentary expenses, the whole of the estate of the deceased be held for the applicant for her own use and benefit absolutely. I will hear the parties as to the precise terms of any orders that are required to give effect to my determination and in relation to the costs of these proceedings.
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