Allison v Farrington, Hobbs v Farrington

[2005] NSWSC 106

CITATION:	Allison v Farrington, Hobbs v Farrington [2005] NSWSC 106
HEARING DATE(S):	15 November 2004
JUDGMENT DATE :	24 February 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1). I order that the home unit situate at and known as 3/26 Waugh Street, Port Macquarie be designated as notional estate of the late Keith Joseph Farrington ("the Deceased"). (2). I order that Veronica Helen Allison, the Plaintiff in proceedings 5514 of 2003, receive a legacy of $80,000 out of the notional estate of the Deceased, such legacy not to bear interest if paid on or before 24 May 2005, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the provisions of the Wills, Probate and Administration Act 1898. (3). I order that Victoria Anne Hobbs, the Plaintiff in proceedings 5065 of 2004 receive a legacy of $50,000 out of the notional estate of the Deceased, such legacy not to bear interest if paid on or before 24 May 2005, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the provisions of the Wills, Probate and Administration Act 1898. (4). I order that the costs of each of the aforesaid Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased. (5). The exhibits may be returned.

CATCHWORDS:	Succession. Family Provision. Claims by two adult daughters. Notional estate. Prescribed transactions. Deceased shortly before his death transferred home unit to himself and his wife as joint tenants. Financial and material circumstances of each Plaintiff. Deceased recognised an obligation to provide a residence for one Plaintiff. Other Plaintiff suffers from a pyschiatric condition. Competing claim of widow. Marriage of very short duration.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Elliott v Elliott (29 April 1986, unreported) Luciano v Rosenblum (1985) 2 NSWLR 65 Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Veronica Helen Farrington (Plaintiff in 5514 of 2003) Victoria Anne Hobbs (Plaintiff in 5065 of 2004) Joan Millicent Farrington and Marie Louise Wardle (Defendants in both)
FILE NUMBER(S):	SC 5514 of 2003; 5065 of 2004
COUNSEL:	Mr. A. Lakeman (Plaintiff 5514 of 2003) Mr. R. Colquhoun (Plaintiff 5065 of 2004) Mr. G. George (Defendant)
SOLICITORS:	Mackintoshs (Plaintiff 5514 of 2003) Walker Smith (Plaintiff 5065 of 2004) Joan Pierpoint & Associates (Defendant)

LOWER COURT JURISDICTION:

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 24 February 2005

5514/03 VERONICA HELEN ALLISON –v- JOAN MILLICENT FARRINGTON and ANOTHER

5065/04 VICTORIA ANNE HOBBS –v - JOAN MILLICENT FARRINGTON and ANOTHER

JUDGMENT

1 MASTER: These are two proceedings under the Family Provision Act 1982.

2 By summons 5514 of 2003 filed on 30 October 2003 Veronica Helen Allison claims an order for provision for her maintenance and advancement in life out of the estate of her late father, Keith Joseph Farrington (to whom I shall refer as “the Deceased”). Subsequently, an amended summons was filed on 11 March 2004, that being necessary as a consequence of the joinder of Marie Louise Wardle as the Second Defendant to the proceedings.

3 By summons 5065 of 2004 filed on 15 September 2004 Victoria Anne Hobbs claims an order for provision for her maintenance and advancement in life out of the estate of the Deceased.

4 In each proceeding the Defendants are Joan Millicent Farrington as First Defendant and Marie Louise Wardle as Second Defendant.

5 The Plaintiffs are two of the six children of the Deceased, who died, aged eighty years, on 18 September 2003. He was survived by five of those six children. Although the Deceased left a will dated 8 April 2003, in the events which happened (and to which I shall make further reference shortly) no probate was ever granted in respect to that will. Since the Court has jurisdiction to make an order for provision under section 7 of the Family Provision Act only “in relation to a deceased person in respect of whom administration has been granted”, it was necessary that there be a grant of letters of administration pursuant to section 41A of the Wills, Probate and Administration Act 1898. For reasons which did not emerge from the evidence those letters of administration were on 20 November 2003 granted to Marie Louise Wardle. Those letters of administration contained the following statement, “This grant is made for purposes of an application being made under the Family Provision Act 1982”.

6 An appearance was filed on behalf of Mrs Wardle on 19 March 2004. However she was not represented by solicitor or counsel in the proceedings. Although Mrs Wardle was present during the hearing, she stated at the commencement of the hearing before me on 15 November 2004, in response to an enquiry made of her by me, that she did not wish to participate in the proceedings, but that she was content to allow the proceedings to be conducted by the legal representatives of the other parties. I shall throughout this judgment refer to the First Defendant, Joan Millicent Farrington, as merely “the Defendant”.

7 On 24 September 2004 the Registrar by consent ordered that the two proceedings be heard together. At the outset of the hearing on 15 November 2004 I ordered by consent in each matter that the evidence in the one be treated, so far as is relevant, as evidence in the other.

8 The Deceased, who was born on 13 April 1923, married his first wife, Maisie Margaret Farrington (who was born on 12 September 1921) in 1946. That marriage subsisted for 55 years, until the death of Mrs Maisie Farrington on 28 November 2001.

9 Subsequently, the Deceased married the Defendant on 22 March 2003, less than six months before his death on 18 September 2003.

10 The Deceased and his first wife had six children, five of whom survived the Deceased. I intend no disrespect to the Plaintiffs or to their siblings if I refer to them by their given names. The Plaintiff Veronica (who was born on 14 March 1949 and who is now aged 55) was the third child of the Deceased. The Plaintiff Victoria (who was born on 16 August 1955 and who is now aged 49) was the sixth child of the Deceased.

11 It is unnecessary to recount the family history of the Deceased throughout the period of his first marriage. Suffice it to say that, although never in affluent circumstances, the family of the Deceased appears to have been a close knit one where there was a close and affectionate relationship between parents and children and among the children themselves.

12 For more than half their marriage the Deceased and his first wife resided in rented accommodation, both in Melbourne and in Sydney. The Deceased, who had served in the Royal Australian Navy during the Second World War, subsequently was employed essentially in unskilled occupations. For a period of about twelve years he was employed by Australia Post (or its predecessor, the Postmaster General’s Department). However, in 1982, essentially in consequence of Mrs Maisie Farrington winning $40,000 in a lottery, she and the Deceased were enabled to purchase a two bedroom home unit in The Esplanade, Manly. Subsequently, all their children living away from home by that stage, the Deceased and his wife moved from Sydney to Port Macquarie. They purchased, sequentially, several residences, including residences in retirement villages. However, ultimately they purchased as joint tenants a home unit situate at and known a 3/26 Waugh Street, Port Macquarie. That was the residence of the Deceased at the time of his death. During the course of the proceedings it was noted that it was agreed by all parties that the present value of that home unit was $220,000.

13 Several months after the death of his first wife the Deceased became acquainted with Joan Millicent Love (now Joan Millicent Farrington), the Defendant herein. They met on a bus trip organised by an entity known as the Panthers Travel Club. At that stage the Deceased was aged 79 (but active and energetic for his age), whilst the Mrs Love was aged 57. Mrs Love had two adult sons by an earlier relationship, being Kevin Love (who was born on 23 March 1975 and is now aged 29) and Mark Love (who was born on 29 January 1980 and is now aged 24).

14 The Deceased and Mrs Love married on 22 March 2003. Less than three weeks later, on 8 April 2003, the Deceased made his last will. By that will, in the event that his wife Joan Millicent Farrington, survived the Deceased for 14 days, he appointed her executrix and gave to her the whole of his estate absolutely. The will went on to provide that in the event that his wife did not survive him for 14 days then he appointed his daughter Marie Wardle his executrix. The will then continued,

I GIVE DEVISE AND BEQUEATH one half of my Estate equally to my children Theresa Schofield, Veronica Allison Lawrence Farrington, Marie Wardle and Victoria Hobbs , and the other half of my Estate equally between my wife’s children KEVIN LAWRENCE LOVE and MARK JAMES LOVE for their own use and benefit absolutely.

15 However, only a little over four months after making that will the Deceased on 22 August 2003 transferred to himself and his wife as joint tenants the property at 3/26 Waugh Street, Port Macquarie (to which I shall refer as “the Waugh Street unit”), that transfer being registered on 2 September 2003, only two weeks before the Deceased’s death. In consequence, that property passed to the Defendant by survivorship, upon the death of the Deceased. The Defendant was registered as proprietor on 21 October 2003.

16 Apart from a bank account having a balance of a little over $4,000, the only asset of the Deceased at the time of his death was the Waugh Street unit. That property, in consequence of the conduct of the Deceased in transferring it from his sole ownership to the co-ownership of himself and the Defendant as joint tenants, did not ever form part of the estate of the Deceased.

17 Since the moneys held by the Deceased in his bank account at the time of his death appear to have been expended upon payment of his funeral expenses, there are no actual assets in the estate of the Deceased.

18 It will be appreciated that, unless the Plaintiffs can avail themselves of the provisions of Division 2 of Part II of the Family Provision Act, relating to notional estate, there are no actual assets of the estate available to meet any order for provision which might be make in favour of one or both of the Plaintiffs. It is for that reason, therefore, that each of the Plaintiffs by her summons has sought an order pursuant to section 23 of the Act designating as notional estate the Waugh Street unit.

19 I have already observed that Veronica is presently aged 55. She lived with her parents until the late 1960s, when she moved into rented accommodation in an adjoining suburb. She completed a business course in 1970, and the following year married Charles Zammitt. Of that marriage Veronica has one child, Damian Charles Zammitt, who was born on 20 March 1973 and is presently aged thirty-one. Veronica’s husband had previously been married, and Veronica has referred in her affidavit evidence to her stepson Gregory Zammitt as her son.

20 Veronica followed various occupations after the termination of her marriage in about 1992-1993. It is greatly to her credit that she chose to pay off a very considerable amount of money owing by her former husband to creditors. In about 1994 Veronica changed her name by deed poll from Zammitt to Allison.

21 At the time of the commencement of the proceedings Veronica was employed as a nurses’ aide. She at that time had aspirations to qualify in the nursing profession. Her only assets at that time were a ten year old Holden Commodore motor car (to which Veronica ascribed a value of about $7,000) and about $20,000 in the bank. However, essentially for health reasons, she has ceased employment as a nurses’ aide and has abandoned her intention of qualifying in the nursing profession. At the present time Veronica has an offer of employment in a bed and breakfast establishment at Cape Tribulation in Queensland. Veronica does not own, and since the termination of her marriage some twelve years ago has not owned, any residence of her own. She presently lives in rented accommodation at Wamberal on the Central Coast of New South Wales, for which she pays $85 a week. In return for that rental it is necessary for her to maintain the premises where she resides, so that they will be ready for occupation when their owners resort thereto from time to time.

22 The fact that Veronica has no residence of her own was recognised by the Deceased in conversations on a number of occasions. Those conversations included an occasion in December 2001, when the Deceased told Veronica that he was proposing to leave his entire estate to her.

23 Veronica suffers from various health problems, including back, shoulder and neck pains, which were exacerbated by her duties, especially lifting elderly patients, whilst she was working as a nurses’ aide. It was essentially on account of the exacerbation of those problems that Veronica ultimately decided to give up her employment as a nurses’ aide.

24 In the employment in the bed and breakfast establishment which she proposes shortly to commence, Veronica expects to be paid about $200 a week and to receive free accommodation.

25 Veronica gave evidence concerning her close and affectionate relationship with the Deceased, and also the close and affectionate relationship which the Deceased had with Veronica’s son Damian (who was, of course, the grandson of the Deceased). Despite an attempt on the part of the Defendant to establish that the relationship between Veronica and her father was not as good or as close a relationship as she would have the Court believe, I accept Veronica’s evidence in this regard. Certainly there was a break in the relationship when in early 2002 the Deceased, who was visiting Veronica at Wamberal, informed her that he was proposing to marry a lady (the Defendant) whom he had known for only a matter of weeks and that he was proposing to alter his will to leave to the Defendant the entirety of his estate. Veronica set forth in her evidence a verbatim account of the oral exchange between herself and her father on that occasion. She freely admitted that she was very angry at what her father proposed to do with a property which had essentially come to him as a result of his marriage to the mother of his children and, especially, as a result of his first wife in about 1972 winning in a lottery the then not inconsiderable amount of $40,000. However, Veronica when informed of her father’s unexpected, and ultimately fatal, illness in September 2003 immediately went to the hospital and saw him on his death bed.

26 It is the desire of Veronica to acquire a residence of her own, probably in Queensland after she has resorted to Cape Tribulation to accept her new employment. She said that if she was able to obtain sufficient money to put down as a deposit on a small home unit, her stepson Gregory Zammitt was prepared to be her guarantor in respect to the financing of such a purchase.

27 I have already observed that the Plaintiff Victoria is now aged 49. In 1978, when she was aged about 23, Victoria was diagnosed as suffering from chronic schizophrenia, and was admitted to a psychiatric hospital. Medical evidence was placed before the Court concerning Victoria’s psychiatric condition. She is currently (and for the past nine years has been) seeing Dr. Klass Akkerman, psychiatrist, of Forster, whose report of 9 August 2004 was in evidence. Victoria’s condition is currently controlled by appropriate medication. Her last psychotic episode was in 1992. According to Dr. Akkerman, Victoria’s condition is stress-responsive. Although Dr. Akkerman expects that Victoria will continue to remain well in the future, her illness is chronic and she will require lifelong supervision and she will need to continue taking medication. Dr. Akkerman’s attendances upon her are bulk billed. Victoria receives her medication under the Pharmaceutical Benefits Scheme, the cost of which to her is about $30 a month.

28 Victoria married her present husband Alan Hobbs on 8 March 1993. He is aged 75, some twenty-five years older than Victoria. He is a retired ferry boat skipper, who presently suffers from a number of serious medical problems, including emphysema, high blood pressure and glaucoma.

29 Victoria and Mr. Hobbs reside in a house property situate at and known as 10 David Street, Old Bar. The description of that property in the affidavit evidence of Victoria and her husband shows it to be in need of restoration and repair. An estimation of the cost of the work requiring to be done on that house property was given as $7,000, an amount which was not challenged by the Defendant. Victoria estimates that the present value of that house property, which is unencumbered, is about $300,000.

30 Victoria is in receipt of a disability pension currently in an amount of $269 a fortnight. Her husband receives a pension in an equivalent amount of $269 a fortnight. Upon his retirement Mr. Hobbs received superannuation in a lump sum, which he used for the purchase of the Old Bar residence. Victoria and her husband maintain a joint bank account which in mid-2004 had a balance of $3,000. Mr. Hobbs has a term deposit with the ANZ Bank in amounts totalling $10,000. Victoria and her husband jointly own a 1994 Holden Commodore motor car (to which they ascribe a value of $11,000), which they expect to require major repair and maintenance costs in the near future. Details of their outgoings and expenditures were placed before the Court. They maintain a frugal lifestyle. Because of her medical condition Victoria has been unable to obtain ongoing employment.

31 The Defendant was born on 4 March 1949 and is presently aged 55. I have already recorded that she has two adult sons by a previous relationship. At the time when she married the Deceased she was residing in Housing Commission accommodation. The Defendant has for the past nine years been employed as a paper collator in what would appear to be some form of newsagency business. That employment is of a casual nature, the Defendant working as and when required, for various periods. She is paid at the rate of $16 an hour (until recently it was at the rate of $15 an hour). In addition, the Defendant receives a pension of $489 a fortnight from the Department of Veteran’s Affairs, being entitled to such pension in her capacity as widow of the Deceased, since he was a veteran who had served in the Second World War. The Defendant also receives an amount of $74 a fortnight, that payment constituting part superannuation of the Deceased. Apparently the Defendant was informed that on account of the short duration of her marriage to him she was not entitled to the full superannuation of the Deceased. It was the evidence of the Defendant that she is able to earn up to $136 a week before her pension is affected.

32 The Defendant also suffers from various physical disabilities which limit her ability to perform her employment and which cause her considerable pain and discomfort after she has been working for some hours.

33 Apart from the Waugh Street unit and its contents (much of the furniture and furnishings wherein was brought to that unit by the Defendant upon her marriage to the Deceased) it would appear that the Defendant has no significant assets.

34 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the respective Plaintiffs. I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

35 Each of the Plaintiffs as a child of the Deceased is an eligible person in relation to the Deceased, being such within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings. It will be appreciated that each of the three other surviving children of the Deceased is also an eligible person in relation to the Deceased. Although each has been served with a notice of claim, none of those other three persons has chosen to make a claim against the estate of the Deceased. Indeed, Theresa Marie Schofield, the eldest child of the Deceased, has provided an affidavit in support of the Plaintiff Veronica, in which she states that she is aware of her entitlement to make a claim against the estate of the Deceased, but that she has no intention of doing so and “would be happy if everything went to my sister Veronica”.

36 The Defendant herself, as the widow of the Deceased, is also an eligible person, being such within paragraph (a) of the foregoing definition.

37 I have already recorded that, in the event that the Waugh Street unit be designated as a notional estate of the Deceased and thus be available to meet any order for provision which might be made in favour of one or both of the Plaintiffs, that unit has a present value of $220,000. It will be appreciated that in the event that an order for provision be made in favour of either Plaintiff, it is inevitable that the Waugh Street unit must be sold, concomitant costs being associated with the sale. It was submitted on behalf of the Defendant that the net proceeds of sale would probably be no more than $210,000.

38 It will be appreciated also that in calculating the amount available to meet any order for provision the costs of the present proceedings must be taken into account, since the Plaintiff or Plaintiffs, if successful, will be entitled to an order for costs out of the estate, whilst the Defendant, in upholding the testamentary provisions of the will and in upholding the conduct of the Defendant in transferring the Waugh Street unit into the co-ownership of himself and the Defendant as joint tenants, will, in any event, whatever be the outcome of the proceedings, be entitled to an order for costs out of the estate. It is estimated that the costs of Veronica will total $48,500 and the costs of Victoria will total $19,500, whilst the costs of the Defendant will total $15,000. That is, the totality of the costs of the proceedings will be in an amount of $83,000. If either of the Plaintiffs be successful in the proceedings, then not only would it be necessary for the Waugh Street unit to be designated as notional estate of the Deceased, but it would be inevitable that the Waugh Street unit be sold in order to meet the costs of the proceedings. In that event, upon the basis that the net proceeds of sale would be in an amount of about $210,000, the amount available for distribution from the notional estate of the Deceased would be in an amount of about $127,000.

39 However, before the Court proceeds to a consideration of whether or not the Waugh Street unit should be designated as notional estate, it is necessary (as required by section 23 of the Act) for the Court to be satisfied, firstly, that an order for provision ought to be made on the application of one or both of the Plaintiffs; and, further, that at any time before his death the Deceased entered into a prescribed transaction of the nature described in section 23 of the Act.

40 It is apparent that Veronica is, at least by comparison with her siblings, in straitened financial circumstances, since she is residing in rented accommodation and has not owned a residence since the breakdown of her marriage. Her difficult residentiary circumstances appear to have been recognised by the Deceased, both in conversation with Veronica herself and with other of his children, and also in his stated intention to make testamentary provision which would enable her to have a residence. It is also relevant to the obligation in this regard which the Deceased appears to have recognised that Veronica gave financial and practical assistance to her parents and to her siblings from the time when she left school at the age fourteen in order to enter employment.

41 I have already referred to the ultimate source of the funds with which the Waugh Street unit was purchased, being the lottery win by the Deceased’s first wife in 1982. Before she won that lottery prize Mrs Maisie Farrington had already located the home unit at Manly, but when she did not have sufficient funds for its purchase, at least Veronica (and possibly some of her siblings) was prepared to advance part of the necessary shortfall to her mother.

42 Although the evidence is not very precise in this regard, I have assumed that the Manly home unit was held by the Deceased and Mrs. Maisie Farrington as joint tenants. Nevertheless, a will of Mrs. Maisie Farrington dated 26 October 1983 (at which stage she and the Deceased were residing in the Manly home unit) makes provision concerning Mrs. Maisie Farrington’s “principal place of residence”, by giving to Victoria a right of residence therein for as long as she wishes (with provision for the acquisition of a substitutionary residence with the consent of Victoria), and ultimately for the residuary estate of Mrs. Maisie Farrington to be held for five of her six children as tenants in common in equal shares (the sixth child, her son Anthony Valentine Farrington, receiving a legacy of $5,000). That will made no provision for the Deceased.

43 Veronica has expressed a desire to acquire a residence of her own, and, for that purpose, to obtain a fund sufficient to be used as a deposit on a small home unit near where she is proposing to work in Queensland. She has not, however, quantified the amount necessary for such a deposit, or given any indication to the Court of the nature or the purchase price of the kind of home unit which she has in contemplation.

44 Nevertheless, I am satisfied that, in performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208, Veronica has been left without adequate provision for her maintenance.

45 Victoria suffers from psychiatric problems which prevent her from being in ongoing employment (or, from a practical point of view, in any employment whatever). She has an elderly husband who suffers serious medical problems. Although they own their unencumbered residence, it is in need of repairs and restoration, which they cannot afford. I am satisfied that Victoria has also been left without adequate provision for her maintenance.

46 The claims of the each of the Plaintiffs must, however, be approached in the context of the competing claim of the Defendant. It must be appreciated that, firstly, she is the widow of the Deceased, albeit a widow after a very short marriage, whose duration was less than six months. Further, she was the chosen object of the testamentary beneficence of the Deceased, being entitled under the terms of the will to the entirety of his estate. Further, by the action of the Deceased during his lifetime he ensured that the Defendant should receive the Waugh Street unit by survivorship, without it becoming part of his estate. In the instant case, as I have already observed, it is inevitable that, if any order for provision be made in favour of one or other of the Plaintiffs, the Waugh Street unit must be sold, if only to meet the costs of the parties. Further, the Court should not overlook the fact that the Defendant was living in rented accommodation at the time when she met, and shortly thereafter married, the Deceased.

47 I do not consider that the present is a case which attracts the considerations expressed by Powell J (as he then was) in Luciano v Rosenblum (1985) 2 NSWLR 65, since in the instant case the marriage was of an extremely short duration, being of less than six months. As was pointed out by the Court of Appeal in Elliott v Elliott (29 April 1986, unreported) such a type of provision applies only where it can be said that there has been a long and happy marriage and where a widow has helped build up the estate of the testator. Further, in the instant case the Deceased was in good health throughout the period of the marriage, and his death was both sudden an unexpected. The marriage was not one where the Plaintiff either expected or was required to be, in effect, the principal carer of an elderly or ailing husband.

48 Subject to the Court being satisfied that the Deceased entered into a prescribed transaction of the nature described in section 23 of the Act, I consider that it is appropriate that Veronica receive from the notional estate of the Deceased a sum sufficient for a deposit on a small home unit near her place of future employ in Queensland and to provide her with a fund from which she can establish herself in her new life. I consider that an amount of $80,000 would be appropriate for that purpose. Further, I consider that Victoria should receive an amount which would enable her husband and herself to effect necessary repairs to and maintenance of their house property and to provide a fund to meet unforeseen contingencies and to enhance their frugal lifestyle. An appropriate amount would be $50,000. That would leave an amount of $80,000 from the net proceeds of sale after the payment of the totality of the costs of the proceedings, which would remain for the benefit of the Defendant.

49 It is submitted on behalf of the Plaintiffs that the Deceased before his death entered into a prescribed transaction of the nature described in paragraph (b)(ii) of section 23, being a prescribed transaction,

which took effect within the period of 1 year before death, and was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of that or any other eligible person which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction.

50 In the instant case it is submitted on behalf of the Plaintiffs that the prescribed transaction consisted, firstly, in the transfer by the Deceased on 22 August 2003 of the Waugh Street unit to himself and the Defendant as joint tenants, that transfer taking effect less than four weeks before the death of the Deceased; and, further, in the failure of the Deceased at any time after 22 August 2003 to sever that joint tenancy.

51 I have already expressed my view that by reason of the foregoing transfer of the Waugh Street unit to himself and the Defendant as joint tenants and also by reason of the testamentary provisions made by the Deceased in his will dated 8 April 2003 (that will being made less than three weeks after his marriage to the Defendant and only five months before his death) each Plaintiff was left without adequate provision for her proper maintenance. I consider that at the time when he effected the foregoing transfer and at the time when he made the foregoing testamentary provisions in favour of the Defendant the Deceased had a moral obligation to make adequate provision for each of Veronica and Victoria and that, for the reasons which I have already expressed (including the significant contributions which Veronica made towards the household of her parents and her siblings, especially Victoria) that moral obligation of the Deceased to his daughters Veronica and Victoria was substantially greater than any moral obligation which he might have had to transfer the Waugh Street unit to himself and the Defendant as joint tenants. The Deceased himself (by his statements to which I have already made reference) recognised that he had a moral obligation to Veronica, which moral obligation he did not fulfil.

52 In the instant case, whether or not the failure of the Deceased to sever the joint tenancy constituted a prescribed transaction of the nature described in section 23 (b)(ii) (and I consider that it did), there can be no doubt that the conduct of the Deceased less than four weeks before his death in effecting that joint tenancy constituted a prescribed transaction of the foregoing nature.

53 Section 27 of the Act precludes the Court from designating property as notional estate of a deceased person unless it has considered certain matters, being,

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

54 The very short duration of the marriage, being of less than six months, and the even shorter duration of the co-ownership of the Defendant as a joint tenant, being of less than four weeks, are in my consideration relevant to the reasonable expectations of the Defendant in relation to property.

55 For the reasons which I have just expressed, I consider that the substantial justice and merits of this case require that an order be made designating as notional estate of the Deceased the only significant asset in which the Deceased held an interest at the time of his death, being the Waugh Street unit, so that an order for provision can be made in favour of each of the two Plaintiffs.

56 Subsection (2) of section 27 requires that the Court shall have regard to certain matters in determining what property should be designated as notional estate of a deceased person. Since the only property here available is the Waugh Street unit, the question confronting the Court is whether or not that property should be designated as notional estate of the Deceased.

57 Having considered the matters referred to in subsection (1) of section 27 and having had regard to the matters referred to in subsection (2) of that section, I am satisfied that it is appropriate that in the circumstances of the instant case I should designate the Waugh Street unit as notional estate of the Deceased, and that I should thereupon make orders for provision of the nature which I have already outlined in favour of each of Veronica and Victoria out of such notional estate.

58 I make the following orders:

(1). I order that the home unit situate at and known as 3/26 Waugh Street, Port Macquarie be designated as notional estate of the late Keith Joseph Farrington (“the Deceased”).

(2). I order that Veronica Helen Allison, the Plaintiff in proceedings 5514 of 2003, receive a legacy of $80,000 out of the notional estate of the Deceased, such legacy not to bear interest if paid on or before 24 May 2005, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the provisions of the Wills, Probate and Administration Act 1898.

(3). I order that Victoria Anne Hobbs, the Plaintiff in proceedings 5065 of 2004 receive a legacy of $50,000 out of the notional estate of the Deceased, such legacy not to bear interest if paid on or before 24 May 2005, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the provisions of the Wills, Probate and Administration Act 1898.

(4). I order that the costs of each of the aforesaid Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased.

(5). The exhibits may be returned.

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