Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse)
[2011] NSWSC 635
•11 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635 Hearing dates: 24 and 25 May 2011 Decision date: 11 July 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1) The plaintiff is to receive a legacy out of the estate of the Deceased of $825,000.
(2) The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis are to be paid or retained out of the estate of the Deceased.
(3) Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
Catchwords: WILLS AND ESTATES - family provision claim - competing claims or Interests - relationship with the Deceased - contributions by the Applicant - whether applicant and Deceased were in a defacto relationship - no provision had been made for applicant in Deceased's will - held that applicant in defacto relationship with Deceased for 16 years - Deceased's daughter, step-daughter grandchildren and step - grandchildren beneficiaries under the will - Deceased's step daughter executor but she and her children had been estranged from the Deceased for 9 years prior to his death - estrangement occurred over a Robert Mapplethorpe photography book that Deceased had lent to step-granddaughter - estrangement not fatal to step-daughter and step-grandchildren's claim - provision made for applicant defacto. Legislation Cited: Succession Act 2006
Interpretation Act 1987
Probate and Administration Act 1898Cases Cited: Bladwell v Davis [2004] NSWCA 170
Dunk v Public Trustee [2003] NSWSC 37
Elliott v Elliott (New South Wales Supreme Court, 18 May 1984, unreported)
Golosky v Golosky (5 October 1993, unreported)
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Ward v Anderson (New South Wales Supreme Court, Waddell CJ in Eq, 6 June 1989, unreported)Texts Cited: Encyclopaedia Britannica 1990 Britannica Book of the Year (1990) Category: Principal judgment Parties: Plaintiff - Susan Jane Barnsley
Defendant - Suzanne RiakosRepresentation: Counsel:
Plaintiff - Mr DM Flaherty
Defendant - Mr JE Armfield
Solicitors:
Plaintiff - Swaab Attorneys
Defendant - Butlers Will Dispute Lawyers
File Number(s): 2010/00063861
Judgment
HIS HONOUR: This is an application under the Succession Act 2006 for provision out of the estate of the late Ralph Hodgkinson Clark who died on 17 July 2009.
Susan Barnsley claims that she lived in a de facto relationship with the Deceased for the last 16 years prior to his death.
The proceedings were also heard with proceedings 2010/236325 by Mary Clark a former wife of the Deceased. After the conclusion of the hearing of both proceedings Mary Clark's proceedings were settled on terms that she should receive a legacy of $120,000 inclusive of costs.
Will of the Deceased
The Deceased made his last will on 21 May 1998. The Deceased left a legacy of $20,000 to his sister Rosemary Allen and a legacy of $5,000 to his step-daughter, Suzanne Riakos, who was appointed executor. The executor had discretion as to the distribution of the Deceased's chattels and the residue of his estate was left as to a one third to Suzanne Riakos, one-third to his daughter Madeline Lamont and the remaining one third to the children of Suzanne and Madeline. The children are Christine Riakos, Patrick Riakos, Megan Riakos, Stacy Garlick, Josephine Hall (Suzanne's children), Riki Lamont, Sasha Lamont, and Keely Lamont (Madeline's children). Sasha and Keely are minors.
Assets in the estate
The estate consists of the Deceased's property Vaucluse which has been sold for $1.7 million with settlement due to occur January 2012. Allowing for the sale the net distributable estate is estimated to be $2,072,536.01. The defendant's costs based on a three day hearing of both matters are estimated at $104,000. Accordingly after they are deducted there is an estate of $1,968,536.01. Susan Barnsley's costs are estimated at $87,900.00. There will now be a further deduction from the estate in the sum of $120,000 being the amount paid to settle Mary Clark's proceedings although that settlement was at the defendant's risk. Therefore, the net distributable estate is approximately, $1,760,636.
Family history
Ralph Hodgkinson Clark was born in August 1935. His former wife Mary Elizabeth Clark was also born in August 1935.
Suzanne Riakos ("Suzanne") is the daughter of Mary and she was born in January 1960.
The Deceased married Mary Clark while he was living in the USA in March 1969.
Mary and the Deceased had a daughter, Madeline Lamont (nee Clark), who was born in October 1969. In February 1972, Mary and her children Douglas, Suzanne and Madeline immigrated to Australia.
In 1984 or 1985, the Deceased purchased the property at Chris Bang Crescent, Vaucluse, which he owned at the date of death.
In May 1991, the Deceased met Susan Barnsley and commenced a relationship in 1992.
The relationship led to the breakdown of his marriage.
The Deceased and Mary agreed to an informal property settlement and a decree nisi of the marriage was pronounced on 1 November 1995. Mary returned to the United States.
As I have mentioned, the Deceased's last will was made on 21 May 1998 and there was no provision made to Susan Barnsley. In January 2006, Susan became pregnant to the Deceased. Unfortunately she suffered a miscarriage ten weeks later, much to the disappointment of the Deceased.
The Deceased died on 17 July 2009 and these proceedings were commenced within time.
Eligibility
Susan Barnsley claims to be a person living in a de facto relationship with the Deceased at the time of the Deceased's death. Alternatively, she claims to be a person who was part of the same household and was in part dependant upon the Deceased. I will first deal with the claim in respect the de facto relationship.
Under section 57 of the Succession Act a person is an eligible person if they were living in a de facto relationship with the Deceased person at the time of the Deceased person's death. The Act does not define "de facto relationship" and it is now defined for the purpose of the Succession Act by the terms of section 21C(3)(a) of the Interpretation Act 1987. The relevant parts of section 21C are as follows:
" INTERPRETATION ACT 1987 - SECT 21C
21C References to de facto partners and de facto relationships
(1) Meaning of "de facto partner"
For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2) Meaning of "de facto relationship"
For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3) Determination of "relationship as a couple"
In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(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.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
(4) Meaning of "related by family"
For the purposes of subsection (2), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or
(c) they have a parent in common (including an adoptive parent of either or both of them).
(5) Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.
(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. "
It is useful to discuss the matter having regard to various criteria referred to in the section.
Duration of the relationship
It seems clear that the relationship between Susan Barnsley and the Deceased was over a period of 16 years from approximately 1993 until the Deceased's death in 2009.
The nature and extent of a common residence
During the period of the relationship the Deceased always had his house at Vaucluse and Susan Barnsley rented a flat at Glebe. Susan gave evidence that there were three phases in the relationship so far as their residences were concerned. The first was the initial period from 8 May 1992 until late 1992, the second period was from late 1992 until the mid 1990s and the third period was from the mid 1990s until the Deceased's death on 17 July 2009.
In the first period, the Deceased usually stayed over night at the Glebe property on Wednesdays, Fridays, Saturdays and Sunday nights. Susan attended TAFE on Tuesdays and Thursdays. On Sundays, after working on his boat the Deceased normally returned to Glebe in the afternoon.
In the second period, Mary had returned from the United States and lived separately and apart at the Vaucluse property from late 1992 until the mid 1990s. During this period the Deceased stayed at the Glebe property as he had previously.
In the third period, after the Deceased's divorce and Mary's return to the United States, the Deceased stayed overnight with Susan at Glebe on an average of about 2 nights a week as well as on the weekends on Fridays and Saturdays. On Sundays they spent time together and the Deceased would either stay at Glebe or return to Vaucluse late in the evening. It is apparent that from the mid 1990s they exchanged keys to their respective homes and they both had access to each other's property.
The existence of a sexual relationship
Plainly a sexual relationship existed between Susan and the Deceased.
Degree of financial dependence or interdependence and any arrangements for financial support
Susan and the Deceased kept their financial affairs separate, except for a number of small loans made by Susan to the Deceased during the relationship.
Ownership use and acquisition of property
There was no acquisition of property by Susan and the Deceased.
Degree of mutual commitment to a shared life
It seems there was a reasonable degree of mutual commitment.
Care and support of children
There were no children of the relationship. However, I have mentioned in the chronology Susan became pregnant to the Deceased in January 2006. The Deceased was happy about this and later was very disappointed when the miscarriage occurred.
Household duties
The division of household duties was not unusual. They did the shopping together and Susan did most of the cooking in the evenings. The Deceased often made breakfast. Susan washed the Deceased clothes. The Deceased helped with chores around the Glebe property, general maintenance and the garden.
Reputation and public aspects of the relationship
It is plain that over the years Susan and the Deceased went on many holidays together. These included skiing, overseas holidays and trips in Australia. They had many friends they visited at various times.
It also seems clear that the Deceased was involved with Susan's family including her parents who lived in Canberra.
A number of friends of the Deceased gave evidence supporting Susan's account of the living arrangements and the public aspect of their relationship. There was also evidence from Susan's mother to the same effect.
One particular matter was that the Deceased did not provide for Susan in his will. He took advice from his solicitor, Mr Richard Halliday, when he discussed with him whether he should provide for his girlfriend and Mr Halliday advised him not to do so.
It is true that there nothing in section 21C of the Interpretation Act 1987 that requires a couple who are living together to share the same household full time or to live in one house. Effectively what we have here is the Deceased using his Vaucluse residence as a business base while he spent most of his evenings, if not all, with Susan. It is not surprising that they spent their evenings at Glebe because the Deceased was very untidy and his Vaucluse could only be described as chaotic. For example a chain saw was left in pieces on a table in the living room for some years waiting to be repaired.
As is referred to in a number of cases on this subject (see Dunk v Public Trustee [2003] NSWSC 37 and Ward v Anderson ( New South Wales Supreme Court, Waddell CJ in Eq, 6 June 1989, unreported) it is always a question of degree whether there is a de facto relationship.
In the circumstances of this case, it is plain that there was a de facto relationship between Susan and the Deceased at the date of death. Susan is therefore an eligible person and it is not necessary to deal with her alternative claim and the need to establish factors warranting.
It is necessary to consider the situation in life of Susan. I will then consider the situation in life of others who have a claim on the bounty of the Deceased. In this case Susan does not seek to disturb the legacy given to Rosemary, the Deceased's sister. Accordingly it is only the other beneficiaries who need to be considered.
Susan Barnsley
Susan is 52 years of age. She has no dependents and lives in rented premises at Glebe. Her taxable income for the year ended 30 June 2010 was $77,922.
Susan has the following estimated assets:
(a) Household contents $8,000
(b) Personal belongings $2,000
(c) Shares $2,300
(d) Shares in her business $29,350
(e) Deposit in Swaab trust account $45,000
(f) CBA deposit $15,000
(g) Superannuation $108,500
Total $210,150.
It is clear that Susan and the Deceased had a loving relationship in excess of 16 years. There were no contributions by Susan to the estate of the Deceased.
Suzanne Riakos
Suzanne Riakos is 51 years of age. She is a stepdaughter of the Deceased. She is married and lives with her husband, Mohsein Riakos and five children. A daughter, Megan Riakos, lives with them. Megan is 30 years of age and although she recently graduated from the Australian Film Television and Radio she is finding difficulty obtaining employment.
Suzanne and Mohsein both work and their annual joint income is $135,529.92, which is taken up with their expenses.
Their assets are their home, a half share of an investment property, motor vehicles, furniture and a modest number of shares. The total value of their joint assets is $1,102,450.90 and their joint liabilities are $290,593.09. In addition Suzanne has $67,296.00 in superannuation and Mohsein has $203,729.92 in superannuation.
Suzanne and the Deceased had a normal relationship even after her mother, Mary, returned to the United States in 1995. There was contact at various family occasions. In 2000, an unfortunate event took place that led to estrangement between Suzanne's family and the Deceased. The Deceased lent Megan, who was eighteen at the time, a Robert Mapplethorpe photography book. The photography displayed nude photographs and strange sexual activity that made Megan uncomfortable and she did not continue to look through the book after she first saw what it contained. Suzanne thought the material in the book was highly inappropriate and she had a conversation with the Deceased about it. According to Suzanne the Deceased never apologised and she did not speak to him again. Hence, after 2000 there was no further contact between the Deceased and Suzanne and her children, apart from occasional contact with her son Patrick Riakos who eventually cut off contact with the Deceased for the same reason.
Josephine Lee Hall
Josephine is 34 years of age. She lives with her husband, Geoffrey Hall and three children aged between 2 years and 5 years of age. They own their home at Mascot and a half share of a rental unit in Surry Hills. They have assets of $1,191,595.33. They have liabilities of $698,000.
They have a joint annual income of $138,957.10. Josephine would like to make repairs to their home and they hope the interest in the estate would cover the repairs. She would also like to reduce their liabilities.
Christine Riakos
Christine is 32 years of age and she lives with her boyfriend, Joel Maybury. She has total assets of $706,000, which comprise a half share of the unit she owns with Joel, a half share in an another investment property with Stacy Garlick, one other investment property, and a motor vehicle. She has total liabilities of $661,770. She has superannuation of $30,000.
Christine's annual income is $134,208 and having regard to her expenses, she is able to save some funds. She plans to have a child in the future. The bequest under the will would be used to pay off her personal loans and assist with a deposit on a more suitable house for a family.
Patrick Riakos
Patrick is 31 years of age. He lives with his wife Lucie Riakos at Redfern and their first child was born in January 2011.
They have assets totalling $336,781 and they have debts of some $45,815. Patrick and his wife work and they have a joint annual income of $137,150, which does not quite cover their expenditure.
It is plain that Patrick had a good relationship with the Deceased. When he was 12 years old he spent two weeks with the Deceased trekking in the foothills of the Himalayas. In 1997, when he was about 18 years old he started working with the Deceased in his tree surgery business and this continued until about 2000, when he obtained an internship at Railcorp. However, when the relationship between his mother and Deceased finished he had no further contact with the Deceased.
Patrick and his wife would like to sell their small two bedroom unit and purchase accommodation which would be suitable for the family. They also need a car and they are anxious to use their share of residue for these needs and the cost of bringing up a child.
Megan Riakos
Megan is 30 years of age. She lives with her parents Suzanne and Mohsein. She has assets of savings, superannuation and personal effects of $8,213.14 and her main debt is a HECS debt of $30,658. She lives on Centrelink benefits, Austudy payments and casual employment a total annual income of $20,687.
Megan had a good relationship with the Deceased up until the problem with the photographic book and no relationship with him thereafter. She is hoping to use the legacy she might get under the will of the Deceased to pay her debts and move out of home into a small unit.
Stacey Garlick
Stacey is 27 years of age. She lives with her husband Nathan Garlick with her sons aged 3 and 4 years. She and her husband own their home at Little Bay and two investment properties. Their total assets are $1,367,548 and liabilities of $935,610.
Stacey and Nathan have a joint annual income of $114,358. They work hard and Nathan suffers from depression and anxiety. They would like to complete renovations to their home as well as reduce their credit card and personal loan debts of some $53,610.
Madeline Lamont
Madeline is the daughter of the Deceased and his wife Mary Clark. She is a half sister of Suzanne Riakos. She is 41 years of age. She lives with her husband and their three children aged between 8 and 18 years of age. They own their home and a half share of other properties including an investment property with a total value of $1,202,533.20. Their liabilities are $179,687.
Madeline and her husband work and they receive some income other than wages but their investment property yields a loss. Their joint annual income is $72,772 and their annual expenditure is $81,315.
There is no evidence that Madeline had a relationship with the Deceased after he divorced his wife.
There is no information about Madeline's children's circumstances. However, they would be entitled to their share in the estate of the Deceased. On the figures mentioned above, the share of each grandchild would be $73,359.
Discussion
Although the Susan is not the Deceased's widow, it is useful to look at what has been said in respect to such claims before considering the application of such statements to what has been said in respect of claims of de facto spouses.
Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Golosky v Golosky (5 October 1993, unreported) has referred to formulations of the standard to be expected for adequate provision in respect of a widow. Kirby P referred to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65. In Elliott v Elliott ( New South Wales Supreme Court, 18 May 1984, unreported) Powell J said:
"I take the view - which view, I believe, is supported by authorities - that, in a case such as this, where the marriage of a Deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up, and maintain, his estate, the duty which the Deceased owes to his widow can be no less than, to the extent which his assets permit him to achieve that result; first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises, or, the whim strikes her, she have the capacity to change her home; second, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort, and free from any financial worry; and, third, that she have available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring."
There have recently been reminders about the limitations of such formulations. In Marshall v Carruthers [2002] NSWCA 47, Young CJ in Eq said:
" [73] It must be remembered that Powell J put his proposition as a "broad general rule". However, there is in fact no "standard former spouse" to which one can just apply that proposition as a rule of thumb.
[74] Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the Deceased or in supporting the Deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.
[75] I also take this opportunity to reject Mr Ellison's submission that a person who has a claim as a class (a) eligible person ipso facto has a stronger claim than a person who comes under class (b). Indeed, in many cases, such as where there are infant children, this may not be so."
Palmer JA concurred in these sentiments.
The matter was again dealt within more detail in Bladwell v Davis [2004] NSWCA 170.
" [12] There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. "Widow takes all" is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned.
[13] Observations on the claims of widows were made by Powell J in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69-70 in these terms:
It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration.
[14] In Golosky v Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the will beneficiaries whose interests were affected, were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring) ordered further provision for the widow, and Kirby P referred to Luciano v Rosenblum briefly for comparison, but also said:
Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an "able bodied son" was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [ Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575f], 580f; cf Anderson v Teboneras and Anor [1990] VR 527 . So should inflexible rules about spousal provision.
[15] In Hertzberg v Hertzberg [2003] NSWCA 311 provision ordered by Acting Master Berecry for a widow, second wife of the testator, out of a large estate was confirmed by the Court of Appeal. There was no competing claim or circumstance of need of any will beneficiary. McColl JA said at [35] in the context of the claim of a widow for the matrimonial home (which in this case the claimant owns):
His Honour's judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the Deceased may well have contemplated he had left the respondent appeared to have altered.
The statement in the first sentence of this passage should be understood in its context of a claim in a very large estate where there was no competing claim based on need.
[16] In Sayer v Sayer [1999] NSWCA 340 at [34] Sheller JA (with whom Davies AJA concurred) accorded primacy to the claim of a widow (of a second marriage) over the claim of a granddaughter who was an eligible person "in the circumstances and in accordance with prevailing community standards." This does not in my opinion express any general principle of paramountcy.
[17] In Cropley v Cropley [2002] NSWSC 349 at 56 Barrett J said:
When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow's claim to maintenance out of the estate of her Deceased husband is a claim which is "paramount" and "of a high order" is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows:
In my opinion, the question is whether [the grandchild] has satisfied the Court that there is, in the circumstances and in accordance with prevailing community standards ( Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46), sufficient in the estate to provide for the widow's proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her.
This was accepted as an accurate statement of the law by Palmer J in Latimore v Latimore (2003) NSWSC 364 at [59]. At [57] Barrett J proceeded to approach the applications according to the two stage approach described in Singer v Berghouse (1994) 181 CLR 201.
[18] In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s 7 and the approach established by Singer v Berghouse . Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982.
[19] In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits."
Interestingly Ipp J adopted this in at paragraph one, stating:
" [1] I agree with Bryson JA, for the reasons his Honour has stated, that "it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 ..."
[2] I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
Stein AJA agreed with both judges.
In Marshall v Carruthers the Court was concerned with a claim by a de facto partner. Hodgson had the following to say:
" [63] The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the Deceased.
[64] The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69
It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
[65] I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here."
While acknowledging his Honours comments in respect of the strength of the marriage bond, there are a number of factors that are of importance in this case.
The primary factor is that it was a close and loving relationship of some 16 years in length. The plaintiff also contributed towards the Deceased's care. Although they did not have children, their desire for a child points to the closeness of the relationship. Given the absence of children and the fact that both Susan and the Deceased worked, there is not the usual situation of disadvantage to plaintiff because she could not pursue her career. As a result there were no contributions to building up the Deceased's estate. Another factor is the size of the estate and the nature of the competing claims.
It is necessary to see how Susan says she has been left without adequate and proper provision for her maintenance, education and advancement in life. She seeks provision equal to one half of the residue of the estate prior to any payment to Mary Clark under her settlement.
The plaintiff wishes to purchase accommodation for herself in a number of inner city suburbs. She would like to have a place to live in a safe area, with 2 - 3 bedrooms, off street parking and a small garden area. In order to facilitate her business activities, she suggests she will need a utility vehicle that can be used in her work. Such a utility will cost in the order or $42,300.
The plaintiff also seeks provisions for some postgraduate work of $49,800, a contingency fund of $100,000 and a contribution to her superannuation of $100,000.
On the costs of accommodation, the plaintiff tendered material suggesting that inter alia :
(a) the average price of a one bedroom unit in Glebe with a car space is $504,000;
(b) similar but 2 bedrooms was $707,833;
(c) the average price of a one bedroom unit in Paddington with a car space is $745,000;
(d) for 2 bedrooms, $786,333.
The defendant's evidence suggested that in Glebe, a 1 bedroom unit with car space could be purchased for as low as $425,000 with a xxx of $647,500.
There is one remaining issue that should be discussed, that is the estrangement that occurred between the Riakos family and the Deceased between 2000 until his death in 2009.
Section 60 of the Succession Act provides a non-exhaustive list of matters the Court may consider when deciding whether to make a family provision order and the nature of such an order. Among such matters are the nature and extent of any obligations or responsibilities the Deceased owed to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the Deceased's estate (s 60(2)(b)). Further, that section also lists the conduct of any other person before and after the date of the death of the Deceased person (s 60(2)(n)) as a matter that might be considered.
As has been discussed, Megan was 19 years old when the Deceased lent her the Robert Mapplethope photography book. He did so following a conversation they had about photography, in which Megan had told the Deceased that she had been intrigued by crime scene photographs in a book by Luc Sante called Evidence . The Deceased had previously lent Megan books and the next time he saw her, he gave it to her. After Megan had looked at the book she said to her mother, "It's really gross Mum. I don't now why he lent it to me". The defendant stated that the Deceased was defensive when she confronted him about it and could not understand why she was upset.
The Encyclopaedia Britannica 1990 Britannica Book of the Year (1990) at 118 to 119 includes an obituary for Robert Mapplethorpe, which is as follows:
"Mapplethorpe, Robert, U.S. photographer (b. Nov 4. 1946, New York, N.Y. - d. March 9, 1989, Boston, Mass.), created intense black-and-white images of classical beauty; he was especially noted for his austere photographs of flowers, his iconic celebrity portraits, and his male nudes, some of the explicitly homoerotic. After studying at the Pratt institute in New York City from 1963 to 1970, Mapplethorpe launched a career as an independent filmmaker and artist. He gained renown as a photographer with his masterfully sculptured nudes, which celebrated the power of the human form. He used sadomasochistic imagery, including chains, leather and binding, to produce deeply disturbing photographs. Mapplethorpe, who credited sculpture as a leading influence, sometimes combined photographic images printed on linen and designed his own wooden frames. His photographs were widely exhibited, and at the time of his death, a retrospective of his works was on view at the Museum of Contemporary Art in Chicago. This show included haunting self-portraits that showed the ravages of AIDS on his once-handsome face. Collections of his photographs were included in such books as Robert Mapplethorpe Photographs (1978), Lady: Lisa Lyon (1983), and Robert Mapplethorpe: Certain People (1985). "
According to the plaintiff, the Deceased could not understand why the defendant "would not be liberal minded enough to see it [the book] as art" (Susan Barnsley affidavit filed 9 July 2010 at [109]). The plaintiff states that sometime after the incident, the Deceased tried to make contact with his granddaughter Josephine at the Bondi Surf Club but she did not acknowledge him on that occasion. On another occasion in about 2004, the Deceased appears to have offered some furniture to Josephine but it seems she did not respond to the offer. As previously stated, the Deceased also tried to meet Patrick Riakos for dinner, but Patrick refused to meet him.
Although the Deceased tried to contact Josephine and Patrick, he made no attempt to contact the defendant after the incident. She states that she was waiting for him to apologise to her and because any apology was never forthcoming they were estranged for nine years until his death. The defendant attended the Deceased's funeral but did not go to the burial or wake.
The nature of the Riakos family's estrangement from the Deceased was best described by Stacy Garlick in cross examination by Mr Todd:
"Q. And did you have any contact with the Deceased after 2000?
A. I don't recall.
Q. Do you recall that there was an incident involving a Robert Mapplethorpe photography book being lent to Megan?
A. Yes, I do recall.
Q. That caused some upset within the family?
A. Yes, I do recall the incident.
Q. And there appeared to be a rift thereafter, at least between your parents and some of the children and the Deceased?
A. Correct.
Q. Did you have any contact with the Deceased after that period of time?
A. No.
Q. Prior to that period of time, how regularly would you see the Deceased?
A. Um, I recall seeing Ralph on many occasions. He was like a grandfather figure to us. He came to big events of ours. Holy Communions, I remember Christmas Day we would go and visit him. I remember gifts that he would give us on Christmas Day, we would go and visit him. We used to play in his driveway with the rocks. I was actually quite young. I am young now, but at the time we were involved with him I was quite young, so I have those playful memories of him. So, going there, him fixing us a favourite drink, playing in the driveway with the rocks. He coming to special events of ours. Going there after the City to Surf, to see him. Things like that.
Q. I take it then, as you were so young you had no independent contact, absent family circumstances or other members of the family, with Ralph?
A. No. Through family I would see him. I was quite young at the time.
Q. And why was it that you ceased seeing Ralph after 2000?
A. Um, well I could feel that there was a rift in the family and obviously, you know, I am a teenager at the time in school so my focus was on school at that time and that's just how it all played out, I guess.
Q. Well, between 2000 and 2009 there was no contact between you and the Deceased?
A. What was that, sorry? 2009?
Q. 2009, when he died?
A. Between when, 2000 and 2009?
Q. Yes?
A. No, I don't recall.
Q. And after you left school, after you were leading what might be described as an independent life, did you turn your mind to reigniting any contact with Ralph?
A. Well, it has come up in discussion with my husband and myself, but at the time, you know, because I was young at the time I didn't understand the full gravity of what actually went down and in respect for my family members, I just stood behind them and really just--
Q. Would it be fair to describe it as a form of solidarity with the rest of the family?
A. What does that mean, sorry?
Q. That, because they had adopted this attitude towards Ralph because of what they considered to be inappropriate behaviour, you followed suit?
A. The one thing regarding the book was, because I was under the age of 18 when it happened, my parents didn't really show me the book or engage me in what actually happened, because I was under age and at the time they didn't feel I was old enough to be told about these images, because it is obviously R-rated or however the book is. I still haven't actually seen the book. I would say they and they have done this in other things in life, that they would actually shield me from those sorts of situations. So I feel that, because they shielded me from it, I haven't really formed an opinion about the whole situation because I was so young. So they never persuaded me to have an opinion about Ralph nor did they speak badly of him. I was shielded quite a bit about the whole incident. So, I haven't been able to form my own judgment on how I feel about the time that we separated, the relationship between Ralph and our family. They kept quite neutral in discussions with me about those things.
Q. Between 2000 and 2009 when Ralph died, you made no attempt to contact him?
A. No, no I had not. "
It seems the Deceased considered changing his will after his sister, who was also an executor of the will, was diagnosed with dementia in 2003. However, on the evidence it is impossible to draw any conclusions as to the Deceased's attitude towards the estrangement. From the facts, it appears that although the estrangement seems to have been fairly mutual, the Deceased had made no attempt to change his will. Therefore the estrangement between the Riakos family and the Deceased should not be a fatal to the claim of their claim on the estate.
Conclusion
If the plaintiff were to receive half the residue of the estate before any settlement money is paid to Mary Clark, in accordance with her claim, she would receive $984,268. If the funds for settlement were taken from the other half of the net distributable estate, the defendant and Madeline Lamont would receive approximately $288,089 each. The Deceased's grandchildren would receive about $36,011. If the settlement monies are paid, half of the estate after that payment would be $880,318 and the other figures would be $293,439 and $36,679.
Both the defendant and Madeline Lamont are living in fairly comfortable circumstances, although receiving one third of the whole of the Deceased's estate would have an obviously big impact on their lives. Receipt of a smaller sum, that is one third of half of the net distributable estate, would also provide them with a substantial benefit.
The grandchildren of the Deceased are still relatively young. Each of them appears to have good prospects of success in life and all of them, except for Madeline's children who are younger and Megan, seem to have built up some equity. If orders were made in favour of the plaintiff the sum they would receive would go some way towards paying off their debts, which would help each of them move forward in life.
The claims for provision by the plaintiff are somewhat akin to what one would expect from a widow of a long and happy marriage as referred to in Luciano v Rosenblum . The present plaintiff is not in that situation. Therefore, I would not think that her claims for a contingency fund, contribution to superannuation and the cost of graduate work are appropriate.
Plainly, given her business, she has a need for an appropriate vehicle and provision for her can extend to providing accommodation.
Susan Barnsley cared for the plaintiff and lived with him in a close and loving relationship for 16 years. The appropriate provision for her is a legacy of $825,000.
Orders
(1) The plaintiff is to receive a legacy out of the estate of the Deceased of $825,000.
(2) The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis are to be paid or retained out of the estate of the Deceased.
(3) Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
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Decision last updated: 11 July 2011
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