Aranas v Berry

[2002] NSWSC 355

Reported Decision: (2003) DFC 95-263

New South Wales

Supreme Court

CITATION:	Aranas v Berry [2002] NSWSC 355
FILE NUMBER(S):	SC 3427/00
HEARING DATE(S):	6, 7, 8 February 2002
JUDGMENT DATE:	26 April 2002
PARTIES :	Amalia Aranas (Plaintiff) Robert Aubrey Berry (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	R. Taperell (Plaintiff) A.J. O'Brien (Defendant)
SOLICITORS:	Cantle Carmichael Lawyers (Plaintiff) J.A. O'Brien & Co Solicitors (Defendant)
CATCHWORDS:	Family Provision - Status of Plaintiff as an eligible person - Whether the Plaintiff was de facto spouse of Deceased - Matters to be considered - During first four years of relationship Plaintiff resided with Deceased for no more than four nights each week - Statements by Plaintiff in income tax returns are inconsistent with a de facto relationship with Deceased - Continuing receipt by Plaintiff of social security benefits is inconsistent with de facto relationship with the Deceased - Credit of Plaintiff - Plaintiff was de facto spouse of Deceased for last two years of his life - Financial and material circumstances of Plaintiff - Nature of order for provision to which Plaintiff is entitled - In considering the accommodation appropriate for Plaintiff the Court should look to the needs of the Plaintiff, not to the needs of her children or grandchildren - Competing claim of the Defendant - Defendant is the only other eligible person and is the sole beneficiary - Financial and material circumstances of Defendant.
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454
DECISION:	1. I order that the Plaintiff receive from the estate of the late Aubrey Thomas Berry ("the Deceased") a legacy in the sum of $145,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates.; 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.; 3. The exhibits may be returned (other than Exhibit B, which will be retained in the Court file).

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 26 April 2002

3427/00 AMALIA ARANAS -V- ROBERT AUBREY BERRY

JUDGMENT

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

2 By summons filed on 1 August 2000 the Plaintiff, Amalia Aranas, claims an order for provision for her maintenance and advancement in life out of the estate and/or the notional estate of the late Aubrey Thomas Berry (to whom I shall refer as “the Deceased”).

3 The Deceased (who was born on 12 October 1921) died, aged 78, on 15 June 1999. He left a will dated 25 September 1992, probate whereof was on 23 September 1999 granted to his son Robert Aubrey Berry, the executor named in such will (who is the Defendant to the present proceedings).

4 The significant assets disclosed in the inventory of property were:

(a) a farm property at Glen William (to which a value of $365,000 was ascribed)

(b) a farm property at Wallarobba (to which a value of $160,000 was ascribed)

(c) a house property situate at and known as 18 Eagle Avenue, Hawks Nest, to which an estimated value of $140,000 was ascribed).

5 The house property at Hawks Nest was the residence of the Deceased at the time of his death. Other assets in the estate (being amounts held in bank accounts, a motor vehicle, and furniture and household contents) bring the value of the estate as disclosed in the inventory of property to almost $702,000. The various pieces of real property have increased in value since the death of the Deceased. The parties agreed upon the following present valuations (set forth in Exhibit B):

Hawks Nest house – between $175,000 and $190,000

Glen William farm – $440,000

Wallarobba farm - $173,000

Thus the present value of the estate is in a total amount of between $825,000 and $840,000.

6 It will be appreciated that, in approaching the value of the estate available for distribution, the costs of the present proceedings must be taken into account. The costs of the Plaintiff are estimated to total about $44,000 (plus GST; that is, about $48,400), whilst the costs of the Defendant are estimated to total about $38,500. Thus the value of the distributable estate will be about $87,000 less than the net value of the estate.

7 The Deceased, who was a widower at the time of his death (his wife, Winona May Crawford, whom he had married in 1949, having died on 19 October 1992), was survived by his only child, the Defendant. By his will the Deceased left the entirety of his estate to the Defendant. He was born on 13 September 1958, and is presently aged forty-three.

8 The Plaintiff asserts that she is the de facto widow of the Deceased, and that she lived with the Deceased in a de facto relationship from May 1993 until the death of the Deceased a little over six years later, on 15 June 1999. That assertion is denied by the Defendant.

9 It will be appreciated that unless the Plaintiff can establish that she is an eligible person within one or more of the categories contained in the definition of that phrase in section 6(1) of the Family Provision Act, she does not have the standing to bring the present proceedings. It is appropriate, therefore, to set forth the relevant evidence concerning the nature of the relationship which obtained between the Plaintiff and the Deceased, in order to proceed to a conclusion as to whether or not the Plaintiff was, as she asserts, the de facto spouse of the Deceased, or was otherwise an eligible person in relation to the Deceased.

10 The Plaintiff was born in the Philippines on 27 September 1929, and is now aged seventy-two. She left school in 1941 at the age of twelve, and married in the Philippines two years later in 1943, when she was aged fourteen. That was the only marriage of the Plaintiff. She and her husband had ten children. Her husband died in 1973. The Plaintiff emigrated to Australia on 2 January 1987.

11 The Plaintiff was accompanied to Australia by two of her sons, Amalino and Jeffrey. Initially they resided in a caravan at the Bellhaven Caravan Park at Raymond Terrace. They continued to reside in the caravan park until 1991, when the Plaintiff acquired a house property at 11 Hollydeen Avenue, Lakeside Village, Raymond Terrace.

12 Of the ten children of the Plaintiff all but one have now emigrated to Australia.

13 The house property at Hollydeen Avenue was acquired in 1991, the registered proprietors being the Plaintiff and her two sons Renato Aranas and Jeffrey Aranas. The purchase price was $105,000, of which $95,000 was borrowed from the Greater Building Society (that loan being secured by mortgage) and the balance of $10,000 being lent by one of the Plaintiff’s daughters. That loan of $10,000 has been repaid.

14 According to the Plaintiff, until 1997 each of the Plaintiff and her two sons Renato and Jeffrey paid one third of the weekly mortgage payment of $200.06. In about 1997 another son, Amalino, moved into residence.

15 The Plaintiff became acquainted with the Deceased in April 1993, some time after the death of the Deceased’s wife (and also, it will be appreciated, after the Deceased had made his will on 25 September 1992). Apparently that acquaintance arose as a result of an advertisement which the Plaintiff had caused to be placed in one of the local newspapers. According to the Plaintiff, she moved into residence with the Deceased at 18 Eagle Avenue, Hawks Nest on 5 May 1993, and continued in residence with the Deceased from that date until his death some six years later.

16 Throughout that period (and, indeed, to the present time) the Plaintiff has retained her interest in the Hollydeen Avenue property (although, since her son Amalino and his family moved into residence therein in 1997, the Plaintiff has not contributed to the mortgage payments).

17 In April 1997 the Hawks Nest property was extensively damaged by fire. The Defendant does not dispute that in late 1997, after that fire, it was the practice of the Plaintiff to share a bedroom and a bed with the Deceased. However, the Defendant disputes that up to the date of that fire there was such a sharing of sleeping arrangements.

18 I have already observed that the Plaintiff retained her interest in the Hollydeen Avenue property throughout the period whilst, according to her evidence, she was residing with the Deceased at Hawks Nest (which, according to her evidence, is about an hour’s drive from Raymond Terrace). It emerged from the evidence (especially the evidence of the Plaintiff under cross-examination) that there was a regular practice on the part of the Plaintiff by which she resorted weekly to Hollydeen Avenue for (according to her) the purpose of looking after the infant children of one of her sons. For a period of about two years, from about 1994 until mid-1996 it was the practice of the Plaintiff to spend Monday and Tuesday of each week in Raymond Terrace, childminding the children of her son Jeffrey. On those occasions the Plaintiff (who did not own or drive a motor vehicle) would be collected at Hawks Nest by Jeffrey on the Sunday afternoon. She would spend Sunday night, all day Monday, Monday night, and most of Tuesday at Raymond Terrace. The Deceased would then collect her at Raymond Terrace on the Tuesday afternoon and drive her back to Hawks Nest.

19 The Plaintiff said that after the period of two years or so during which the foregoing practice was adhered to by her she spent all her time at Hawks Nest, except that it was her practice every couple of weeks to spend Wednesday at Raymond Terrace. On those occasions she would travel down to Raymond Terrace on the Wednesday morning, spend Wednesday night at Raymond Terrace, and return to Hawks Nest in the afternoon of Thursday.

20 It also emerged from the evidence of the Plaintiff that even after she met the Deceased in May 1993 and, according to the Plaintiff, moved into residence with him at Hawks Nest in that month, she still went back to the Raymond Terrace residence to be with her sons. As I understand the evidence of the Plaintiff, it was her frequent practice to spend the entire weekend at Hawks Nest with the Deceased, but to spend the rest of each week with her sons in the Raymond Terrace residence.

21 From the time of her arrival in Australia and at least until May 1993 (when she asserts that she moved into residence with the Deceased at Hawks Nest) the Plaintiff was employed as a laundress. The Plaintiff was cross-examined concerning whether or not she continued in that employment after May 1993, and, indeed, after the death of the Deceased.

22 Despite the Plaintiff’s denials, it emerged from her evidence that she was in regular attendance at a laundry establishment known as Mary’s Laundrette at Raymond Terrace. Despite her assertions that she was merely helping out her friend who was the proprietor (or manager) of that establishment, there is little doubt in my mind that the Plaintiff was employed in that establishment.

23 The Plaintiff was cross-examined concerning her income tax returns for 1996 and 1998 (during the lifetime of the Deceased). Each of those returns gives the Plaintiff’s address as 11 Hollydeen Avenue, Raymond Terrace, and states that her home address is not different from her postal address. The telephone number given on those returns is not the Hawks Nest number, but is the Raymond Terrace number. Each of those returns discloses that the Plaintiff at the relevant time had no spouse, either married or de facto.

24 Those income tax returns are inconsistent with the existence of a de facto relationship between the Plaintiff and the Deceased.

25 At the time when, according to the Plaintiff, she moved into residence with the Deceased in 1993, the Plaintiff was in receipt of benefits from the Department of Social Security (the precise designation of those benefits not emerging with clarity from the evidence). According to the Plaintiff, the Deceased outlined to her his financial circumstances, and she responded by stating that she was in receipt of benefits from the Department of Social Security, and continued “I think I should cancel those now that we are living together”. The response of the Deceased was, according to the Plaintiff, “If you do that we will not have enough money to meet all of our joint expenses and your mortgage commitments as well. It would be better if you did not do that.” The Plaintiff said that she acceded to that suggestion of the Deceased.

26 Whether or not there was such a suggestion emanating from the Deceased along the lines described by the Plaintiff, the foregoing conduct of the Plaintiff in continuing to receive Social Security benefits was inconsistent with the existence of a de facto relationship between the Plaintiff and the Deceased.

27 If, as the Plaintiff now asserts, she was residing with the Deceased in a de facto relationship from 1993, then the statements made in the foregoing income tax returns and the fact that the Plaintiff continued to receive Social Security payments to which, if her assertion of residing with the Deceased in a de facto relationship be accepted, she clearly was not entitled, reflect poorly upon the credit of the Plaintiff.

28 The Social Security benefits which the Plaintiff was receiving were, at the outset, some form of sickness benefits or disability pension (which, according to her, she was granted on account of a rheumatoid arthritic condition and which she had been receiving, she thought, since 1989). The Plaintiff continued to receive those benefits until her sixty-ninth birthday on 27 September 1998. From that date the Plaintiff has been in receipt of the age pension.

29 In an attempt to establish that the Plaintiff, far from residing full time with the Deceased at Hawks Nest, was spending significant periods at Hollydeen Avenue, Raymond Terrace, the Defendant elicited from the Plaintiff under cross-examination that she had joined the Raymond Terrace Bowling Club in 1993 and that when doing so she had given 11 Hollydeen Avenue, Raymond Terrace as her address. Further, that until 2001 (that is, more than two years after the death of the Deceased) all mail for the Plaintiff was addressed to the Hollydeen Avenue address.

30 Throughout the period from May 1993, whilst, as she asserted, she was residing at the Hawks Nest property, the Plaintiff and the Deceased each maintained a separate bank account. There was no pooling of their funds or of their finances. The Plaintiff was cross-examined concerning withdrawals which she had made from automatic teller machines from her various bank accounts in the period 31 January 1998 to 30 June 1998, such withdrawals being frequently effected at automatic teller machines located in Raymond Terrace, and those withdrawals taking place on various days of the week (Friday, Tuesday, Thursday, Wednesday, Monday, Thursday).

31 I have had the benefit of receiving from Counsel for the respective parties written outlines of their submissions. Those written outlines will be retained in the Court file.

32 By paragraph (a) of the definition of eligible person in section 6(1) of the Family Provision Act that phrase means, relevantly,

A person:

…

(ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death.

33 The phrase “domestic relationship” is by the same section given the same meaning as in the Property (Relationships) Act 1984.

34 By section 5 of that latter Act, a “domestic relationship” is defined to mean:

A de facto relationship; or

A close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

35 As I understand it, the Plaintiff in the instant case does not assert that her relationship with the Deceased was other than a de facto relationship; in particular, she does not assert that it was a “close personal relationship” of the nature described in section 5 of the Property (Relationships) Act.

36 When significant amendments (including the title of the Act) were in 1999 made to the De Facto Relationships Act 1984 by the Property (Relationships) Amendment Act 1999, a new definition of de facto relationship was inserted in the legislation. For the previous definition (contained in section 3(1)) there is now set forth a definition in section 4(1) as follows:

For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family

37 Subsection (2) of section 4 provides,

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant to a particular case:

(a) the duration of the relationship

(b) the nature and extent of common residence

(c) whether or not a sexual relationship exists

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship

38 It is interesting to observe that the foregoing nine matters, which were part of the new section 4 inserted in the Act by the amending legislation of 1999, reflect (albeit not in precisely identical words) the ten factors referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 at 459.

39 Subsection (3) of section 4 provides,

No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

40 In addition to evidence from the Plaintiff and several of her children, supporting the assertion of the Plaintiff that she was throughout the relevant period in a de facto relationship with the Deceased, and from the Defendant denying that assertion, there was also placed before the Court evidence of a number of witnesses relating to what might be described as the public aspects of the relationship between the Plaintiff and the Deceased.

41 Those other witnesses were Carol McCaskie and Karen Lee Anseline (who were neighbours of the Deceased at the relevant period and resided (at first only at weekends, and subsequently full-time) at 22 Eagle Avenue, Hawks Nest from about 1993 until 1999); Geoffrey William Kelly (who shared with the Deceased a common interest in fishing throughout the relevant period): all of the foregoing witnesses gave evidence on behalf of the Plaintiff.

42 In addition, evidence was given by Ian Mills, also a neighbour of the Deceased (who from 1990 until about October 1997, when he commenced work in Sydney, saw and spoke to the Deceased almost every day and went fishing with the Deceased on an average of five days a week). Mr Mills gave evidence on behalf of the Defendant.

43 Evidence was also given on behalf of the Defendant by Cecil Edward Berry, brother of the Deceased. He was in the habit of visiting the Deceased at least once a month and going fishing with his brother. On those occasions he stayed overnight at the Hawks Nest residence. Mr Berry gave evidence concerning, amongst other matters, the sleeping arrangements at the Hawks Nest residence, and stated that after the fire, when they were sleeping in the same bedroom, he regarded the Plaintiff and the Deceased as “a couple”.

44 Leaving aside, for the moment, the evidence of those witnesses who might be described as neighbours or friends of the Deceased at Hawks Nest, it is apparent from the evidence of the Plaintiff herself that at least from May 1993 until the fire which caused extensive damage to the Hawks Nest house and contents in April 1997 the Plaintiff was spending very significant periods of her time in the residence at Hollydeen Avenue, Raymond Terrace of which she was a co-owner. Those periods, on occasion as much as three days a week every week, appear to me to be so extensive that it cannot accurately be said that before April 1997 the Plaintiff and the Deceased were living together as a couple.

45 After the fire and after the restoration of the Hawks Nest house and the replacement of various items of furniture, furnishings, and household contents (a number of which replacements were effected through the generosity of the Plaintiff’s children, since the insurance payment of $24,000 was largely expended, with the concurrence of the Plaintiff, upon the purchase of a new motor vehicle by the Deceased) the Plaintiff and the Deceased resumed residence in the Hawks Nest house.

46 The Defendant did not dispute that from December 1993 the Plaintiff and the Deceased shared a bedroom in the Hawks Nest property.

47 I have already recorded that the Plaintiff and the Deceased kept their finances separate. Nevertheless, the Plaintiff from time to time made purchases from her pension income for household requirements and for what she described as purchases for the Deceased, including clothes. Much of the food for the household was provided as a result of the fishing activities of the Deceased and also his gardening activities (he grew only vegetables, not flowers).

48 It is appropriate, therefore, that I should indicate my conclusions concerning each of the nine matters referred to in section 4(2) of the Act, in determining whether the Plaintiff and the Deceased were in a de facto relationship.

49 A relationship between the Plaintiff and the Deceased subsisted from May 1993 until the death of the Deceased on 15 June 1999. For part of the foregoing period the Plaintiff and the Deceased shared a common residence. However, until after the fire which occurred in April 1997 that common residence was usually shared by them for no more than four days a week. During the last two years of the Deceased’s life the parties were sharing a common residence at Hawks Nest for most of the time, and were occupying the same bedroom and the same bed.

50 It would appear that a sexual relationship existed between the parties from May 1993 until the death of the Deceased.

51 There was little degree of financial dependence or interdependence between the Plaintiff and the Deceased. However, the Plaintiff made some contributions towards the purchase of household requirements, and also towards the purchase of clothes for the Deceased. The Deceased was in the habit of providing for the children of the Plaintiff fish which he had caught.

52 The only item of property which could be described as being jointly acquired by the parties was the motor vehicle which was acquired by the Deceased after he received payment from the insurance company in respect of the damage to the Hawks Nest property and its contents. Whatever possessions of the Plaintiff were in the property at the time of the fire were destroyed. Accordingly, it would appear that the Deceased regarded the payment which he received from the insurance company as being something to which the Plaintiff would have an entitlement in respect of her property destroyed in the fire. It would appear that that was the reason why the Deceased sought, and obtained, the agreement of the Plaintiff to use almost the entirety of that insurance payment for the purchase of a new motor vehicle. That was a vehicle suitable to be used for beach fishing, a recreation to which the Deceased was enthusiastically devoted and in which the Plaintiff also participated with him. It is interesting to note that that motor vehicle is disclosed as an asset in the estate of the Deceased and as having a value of $24,000 (that being precisely the amount which the Deceased received by way of insurance payment after the fire).

53 There was conflicting evidence concerning the nature and degree of the intimacy between the Deceased and the children and grandchildren of the Plaintiff. I am not persuaded that, at least until after the 1997 fire, there was any significant degree of mutual commitment by either the Plaintiff or the Deceased to a shared life. It was apparent that the Deceased was lonely, living on his own in the Hawks Nest house after the death of his wife. It should here be recorded that throughout the entire period of their relationship the Plaintiff frequently accompanied the Deceased (who appears to have been physically very fit for his age) upon his fishing expeditions (which occurred almost daily), and she also on occasion went rabbit trapping with him.

54 It should, further, be recorded, in considering the degree of mutual commitment to a shared life, that it was the evidence of the Plaintiff that when she first came to reside in the Hawks Nest house in May 1993 the Deceased said that, whatever happened to him, that house would be the Plaintiff’s, whilst the house at Glen William would be for the Defendant. Further, there was evidence that the Deceased proposed marriage to the Plaintiff on a number of occasions and that it was the Plaintiff herself who chose not to change the nature of their relationship.

55 Since (on account of their respective ages, if for no other reason) no children were born to the relationship of the Plaintiff and the Deceased, the matter of the care and support of children does not arise. I am not persuaded that the Deceased devoted any of his time or activities to either the care or the support of the children of the Plaintiff (who, it will be appreciated, were themselves all adults throughout the period of the relationship), although he appears to have got on well with her children and grandchildren.

56 The household duties, cooking, cleaning and like were essentially performed by the Plaintiff whilst she resided in the Hawks Nest property.

57 I have already referred to the reputation and public aspects of the relationship. Most of the neighbours who gave evidence on behalf of the Plaintiff regarded the Plaintiff and the Deceased as being a couple, and assumed that they were either married or in a de facto relationship. The witnesses who gave evidence on behalf of the Defendant referred to various statements attributed to the Deceased which were proffered as evidence that the Deceased himself did not regard the Plaintiff and himself as being in a de facto relationship.

58 It will be appreciated that often a person, for his or her own reasons, chooses not to let certain other persons know the precise nature of a relationship which exists. Similarly, a person may not show affection in the presence of some particular persons, whilst a degree of affection may be shown in the presence of others. There was evidence from certain witnesses that the Plaintiff and the Deceased had the reputation of being either married or in a de facto relationship. There was also some evidence of manifestations of affection between them in the presence of certain of the witnesses (especially those giving evidence on behalf of the Plaintiff). The Deceased appears to have been a reserved and undemonstrative gentleman. However, he gave various presents to the Plaintiff, including a number of items of jewellery (a necklace and two rings) as well as a vacuum cleaner. Those presents were given for birthdays and at Christmas.

59 I am conscious of the injunction contained in subsection (3) of section 4 of the Property (Relationships) Act that no finding in respect of any of the matters mentioned in subsection (2)(a)-(i) or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship.

60 In my conclusion, however, I am not satisfied that throughout the period from May 1993 until at least April 1997, when the fire occurred, the Plaintiff and the Deceased were in a de facto relationship. Nevertheless, I am satisfied that such a de facto relationship existed from shortly after the fire until the death of the Deceased some two years later.

61 The foregoing conclusion that the Plaintiff was living in a de facto relationship with the Deceased at the time of his death means that the Plaintiff is an eligible person within paragraph (a)(ii) of the definition of that phrase contained in section 6(1) of the Family Provision Act. In consequence, the Plaintiff has the standing to bring the present proceedings.

62 The fact that the Plaintiff has established that she is an eligible person in relation to the Plaintiff is not, of course, determinative of the present claim of the Plaintiff for an order for provision for her maintenance and advancement in life out of the estate of the Deceased.

63 In approaching that claim, it is appropriate that I should set forth the present financial and material circumstances of the Plaintiff.

64 As I have already observed, the Plaintiff is presently aged seventy-two. She has no employment skills. It was her evidence that her sole income is the age pension, which is presently in an amount of $407.20 a fortnight. Apart from personal effects, the Plaintiff’s only asset is her interest in the house property at Hollydeen Avenue, which is presently occupied by one of her sons and his family. It was agreed between the parties (Exhibit B) that the present value of the Hollydeen Avenue property is $130,000. It was submitted on behalf of the Plaintiff that her beneficial interest in that property should be assessed as being in an amount of no more than $11,000 (that submission, as I understand it, being based upon the extent of her contributions to the mortgage repayments).

65 According to the Plaintiff’s treating general medical practitioner, Dr Harpaul Singh, the Plaintiff’s main physical disability is osteoarthritis of the hands, spine and both knees. She has moderate disc degeneration of the cervical spine; the lumbosacral spine shows early degenerative change; and she has apophyseal joint osteoarthritis in the lumbar spine. The Plaintiff has also had an advanced cataract in the left eye. The Plaintiff takes regular medication. At the present time her mobility is quite good and her general health is satisfactory.

66 I have already referred to the fact of the attendances by the Plaintiff at Mary’s Laundrette in Raymond Terrace. Since the Plaintiff denied (contrary to what appears to me to be the case – her son Jeffrey said under cross-examination that she was currently working in a laundromat) that she was employed in that establishment, there was no evidence of the amount of any income which she might receive in respect of that employment.

67 I have already referred to the misleading and inaccurate information contained in the various income tax returns of the Plaintiff, firstly disclosing that her address was at Raymond Terrace rather than at Hawks Nest, and then each asserting that at the relevant time the Plaintiff had no spouse, either married or de facto. As I have already observed, the foregoing statements in the income tax returns (and also her continuing receipt of Social Security benefits whilst in a de facto relationship) reflect poorly upon the credit of the Plaintiff.

68 After the death of the Deceased the Plaintiff was, in effect, excluded from the Hawks Nest residence by the Defendant, who caused the locks thereon to be changed. The Plaintiff then moved into residence with her daughter Maria Luisa Wong at Raymond Terrace. However, after the commencement of the present proceedings, the Plaintiff in June 2001 removed into rented accommodation at Unit 2, 135 Mount Hall Road, Raymond Terrace.

69 Much evidence was given by the Plaintiff concerning the unsuitability of that residential unit for the accommodation and entertainment of various of the Plaintiff’s grandchildren who frequently visit her. The Plaintiff now has eighteen grandchildren (of whom fifteen live in the Raymond Terrace area and of those fifteen most are under the age of sixteen years, and many are under the age of seven years).

70 The Plaintiff expressed a wish to receive out of the estate of the Deceased an amount sufficient for her to acquire a house property in Raymond Terrace, where most of her family reside. Evidence was placed before the Court concerning various house properties, and their purchase prices, available in the Raymond Terrace area. It was agreed between the parties (Exhibit B) that the present value of an average three bedroom house at Raymond Terrace is $130,000). In addition, the Plaintiff expressed a wish to be able to travel to the Philippines to attend a family reunion which is proposed to be held in 2003, and placed evidence before the Court concerning the costs associated with such attendance.

71 It has been said that the duty of a testator to a spouse of long standing (whether ceremonial or de facto) is to ensure that the widow is secure in her accommodation, is able to maintain a lifestyle no less than that which she enjoyed during the life of the testator, and has a fund to meet unexpected contingencies. In the instant case, however, it will be appreciated that, in my conclusion, the de facto relationship between the Plaintiff and the Deceased obtained for a period of only about two years. Nevertheless, the evidence discloses that throughout that time the Plaintiff was a devoted and loving spouse to the Deceased. Indeed, as I have already recorded, there was evidence that the Deceased proposed marriage to the Plaintiff on a number of occasions, and that it was the Plaintiff herself who chose not to change the nature of their relationship. She nursed him and ministered to his needs in the period of his declining health preceding his death. Nevertheless, I do not consider that the Plaintiff has established an entitlement, after a de facto relationship which obtained for only about two years, to receive what a spouse of a much longer relationship might otherwise be entitled to receive from the estate of her deceased husband.

72 The suggestion was raised, and the suspicion remained, that the Plaintiff may deliberately have chosen to remove herself from the home environment of her daughter’s residence (where she had lived for two years) to her present rented accommodation in order to enhance her claim in the present proceedings (especially since that change in her residential arrangements occurred only about one month before the date originally fixed for the hearing of this matter). Such enhancement might be regarded as resulting from the fact that, according to the Plaintiff, a home unit is not satisfactory to the Plaintiff’s lifestyle and need. Further, it will be appreciated that the Plaintiffs present outgoings now include rent of $122 a week, and that she did not have such a financial commitment whilst she was residing with her daughter.

73 In approaching the claim of the Plaintiff, it must be borne in mind that this is a claim by the Plaintiff alone. The Court must look to the present needs of the Plaintiff herself, not to the needs of her children or grandchildren, even in the context of the laudable desire on the part of the Plaintiff to be of assistance as a mother and a grandmother. It must be recognised that, whilst the Plaintiff is the matriarch of a close-knit family, all her children are in independent circumstances, and, whilst the Plaintiff gives assistance by way of her time, company and presence to her children and their respective families, none of those children or grandchildren are financially dependent upon her.

74 In my conclusion the Plaintiff has established an entitlement to receive out of the estate of the Deceased an amount which will enable her to acquire a residence in the Raymond Terrace area. The preference of the Plaintiff for a house rather than a home unit was based upon the convenience of her children and grandchildren, rather than upon any benefit to the Plaintiff herself. It is not a preference which should be visited upon the estate of the Deceased. The evidence discloses that such a two bedroom home unit or villa unit in Raymond Terrace can be purchased for about $80,000 - $90,000. To that price would need to be added an amount for stamp duty, conveyancing costs and associated expenses. An amount of about $5,000 would appear to be adequate for those items. In addition, the Plaintiff is entitled to receive a fund which will assist her in purchasing household furnishings and necessities, in meeting any unforeseen contingencies, and in enhancing her present somewhat modest lifestyle. I consider that an amount of about $50,000 would be appropriate for such a fund.

75 In my conclusion, therefore, the Plaintiff has established an entitlement to an order for provision from the estate of the Deceased by way of a legacy in the sum of $145,000.

76 However, the claim of the Plaintiff and the nature of any order for provision to which she might otherwise have established an entitlement must be approached by the Court in the light of any competing claims upon the bounty of the Deceased. In the instant case the only such competing claim is that of the Defendant.

77 Not only is the Defendant the only child of the Deceased (and, in consequence, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act), but he is also the chosen object of the testamentary beneficence of the Deceased. (In this latter regard it should, however, be recognised that the will of the Deceased was made well before the Plaintiff came into his life).

78 The evidence establishes that the Defendant was a loving and dutiful son to his parents. After his mother died in 1992 the Defendant continued to maintain a close and affectionate relationship with his father.

79 Evidence was placed before the Court of the financial and material circumstances of the Defendant. He is a farmer and a leading pot operator by occupation. He conducts farming activities upon the property at Glen William, where he currently resides. He has been in employment since mid-June 1980 with Alcan at its aluminium smelter at Kurri Kurri. The Defendant has no formal qualifications. His duties involve working in the process control area, which requires him to spend half his time in the office and half his time doing manual labour on the factory floor. The Defendant’s current salary is $65,000 gross a year (or perhaps a little more).

80 In addition to his earnings from Alcan, the Defendant has superannuation entitlements totalling about $100,000. He also receives rents, totalling $300 a week, from the farming properties at Glen William and Wallarobba. He owns various motor vehicles, a tractor and farming equipment (having a total value of about $51,000), and he has household effects which are insured for a total value of $50,000. The Plaintiff has two bank accounts with credit balances totalling about $5,400.

81 The Defendant has an outstanding loan with the Capral (now Capital) Credit Union Limited for $1,743, being the balance of moneys owing for a loan which the Defendant obtained in order to erect a shed on the Glen William farm. The Defendant has an amount of about $9,600 standing to his credit with that credit union.

82 The Defendant has lived in a de facto relationship since 1994.

83 I have already referred to the assets of the estate and to the increase in the value of the three items of real property to a total amount of almost $825,000. When there is added to that amount the other assets of the estate (totalling about $37,000) and when allowances are made for the costs of both parties of the present proceedings (in a total amount of about $87,000), it will be appreciated that there will be sufficient in the estate (almost sufficient, apart from the farm property at Glen William and the farm property at Wallarobba) to meet a legacy of $145,000, an entitlement to which I consider the Plaintiff has otherwise established. In the context of the size of the estate, I am not persuaded that an order for provision for the Plaintiff by way of a legacy in the foregoing sum of $145,000 should, on account of the competing claim of the Defendant, be reduced, let alone be extinguished.

84 In consequence, therefore, I am satisfied that the Plaintiff should receive from the estate of the Deceased a legacy in the sum of $145,000, and I propose so to order. It will be appreciated that the Defendant in order to raise that sum will need either to sell the house property at Hawks Nest or, if he is desirous of retaining that property, to raise a mortgage upon the security of the Hawks Nest property. It appears to me appropriate, therefore, that the proposed legacy should not bear interest for a period of three months from the date of the orders herein.

85 I make the following orders:

(1). I order that the Plaintiff receive from the estate of the late Aubrey Thomas Berry (“the Deceased”) a legacy in the sum of $145,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned (other than Exhibit B, which will be retained in the Court file).

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Last Modified: 12/17/2002