Beverley Carol Hogan v Lynette Dorothy Clarke

[2002] NSWSC 386

CITATION:	Beverley Carol Hogan v Lynette Dorothy Clarke & Anor [2002] NSWSC 386
FILE NUMBER(S):	SC 1286/01
HEARING DATE(S):	30/04/02
JUDGMENT DATE:	30 April 2002
PARTIES :	Beverley Carol Hogan (Plaintiff) Lynette Dorothy Clarke (1st Defendant) John Mulvaney (2nd Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :	Mr G Rundle (Plaintiff) Mrs M Bridger (Defendants)
SOLICITORS:	Schrader & Associates (Plaintiff) Marc Hardman & Associates (Defendants)
CATCHWORDS:	Wills, Probate and Administration - Family Provision Act 1982 - Order for maintenance, education and advancement in life out of deceased's estate - Whether testamentary disposition inadequate - Relationship and degree of contract between applicant daughter and deceased mother - Prevailing standards of what is right and appropriate in the circumstances
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463 Ellis v Leader (1951) 82 CLR 645 Gregory v Hudson (No 2) 1unreported 8 September 1997 NSWSC, 2493/96 Kearns v Ellis unreported 5 December 1984 Court of Appeal BC 8400149 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Shearer v Public Trustee re the Estate of Smith [1998] NSWSC 87 Singer v Berghouse (1994) 181 CLR 201 White v Baron (1980) 144 CLR 431
DECISION:	The appropriate order is to dismiss the application. Such an order will be made, when short minutes of order are brought in, in due course.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Tuesday 30 April 2002 ex tempore
Revised 21 May 2002

1286/01 BEVERLEY CAROL HOGAN v LYNETTE DOROTHY CLARKE & ANOR

JUDGMENT

1 Mrs Beverley Carol Hogan, the plaintiff, claims an order for her maintenance, education and advancement in life pursuant to section 7 of the Family Provision Act1982(NSW) out of the estate of her mother, Mrs Dorothy Hawksley, who died on 12 June 2000 aged eighty-three years of age. The plaintiff has joined both her sister, Mrs Lynette Dorothy Clarke and Mr John Mulvaney as defendants, they being the executors under the will of the deceased of 17 November 1997. Mr Mulvaney was the deceased’s accountant.

2 The deceased was married once in 1935 to Mr Henry Charles Hawksley who died on 14 April 1991. There were three children of the marriage. They were the plaintiff born on 13 March 1947 and now aged fifty-five, the defendant Mrs Clarke born on 21 November 1944, now aged fifty-six and Mr Gordon Hawksley born on 1 April 1941 who died on 31 March 1999.

3 The plaintiff was married twice. Her first marriage was to Mr Robert John Parry in 1969. Her second marriage was to Mr Stewart Hogan in 1996. The plaintiff was divorced from her first husband in December 1995. The plaintiff and Mr Parry had four children and all are now over the age of eighteen and are married. Mark was born on 18 January 1971, Eliza was born on 25 October 1974, Heidi was born on 2 May 1977 and Catherine was born on 31 August 1979. Mrs Clarke has three children of her marriage, namely Roger born in 1970, Peter born in 1972 and Susanne born in 1976.

4 A copy of the will of the deceased of 12 June 2000 is annexed to this judgment as Annexure “A”.

5 The inventory of property as at 28 May 2001 annexed and marked “B” to the affidavit of Mr John Mulvaney of 28 May 2001 is annexed to this judgment as Annexure “B”.

6 As is apparent from the will, after certain specific bequests of chattels and personal effects, the deceased gave a pecuniary legacy to the Royal Alexandra Hospital for Children and gave the residue to her son Gordon and her daughter Lynette as survived and in more than one in equal shares. As I have indicated, Mr Gordon Hawksley not having survived the deceased, the bulk of the estate in the events which have happened, go to Mrs Lynette Dorothy Clarke. Events have moved on somewhat from the occasion when the inventory of assets and liabilities was filed with the application for the grant of probate in terms of Annexure B to the judgment. The estates assets presently comprise funds in a controlled money account in the sum of $386,484.12 as at 31 March 2002. Of those funds some $330,060.46 come from the net sale proceeds of the deceased’s home at 26 Boundary Street Parramatta, being the whole of the land contained in certificate of title volume 4313, folio 146. The balance represents moneys held by the deceased with the St George Bank, the Commonwealth Bank of Australia and the proceeds of the AMP life policy referred to in the inventory of property.

7 It is apparently clear that the bequest, the subject of paragraph 7 of the deceased’s will for the benefit of the Royal Alexandra Hospital for Children, now goes to the Children’s Hospital and the Court has been informed by counsel and accepts that the reference in that paragraph to the Parramatta Cooperative Housing Society Group is now to be read as a reference to the St George Bank.

8 To the extent that the deceased recognised the plaintiff in her will in terms of a person who would receive a bequest, that recognition is to be found in paragraph 6, where the two china cabinets and their contents were left to such of the deceased’s daughters as would survive her and in paragraph 8 where the deceased left clothing, jewellery and articles of personal use or ornament to such of her daughters as survive her.

9 It is apparently then common ground that the approximate net interest of the plaintiff in the deceased’s assets is of the order of about, in value terms, $2250, whereas the net interest of the defendant, Mrs Lynette Dorothy Clarke is of the order of $270,000 when one might take into account a possible ultimate holding in relation to the legal costs of these proceedings said to be in the order of approximately $60,000.

10 To be more precise, the pecuniary legacy to the Royal Alexandra Hospital for Children comprises the funds from the term deposit with the St George Bank of $25,199.05. It is likely that from the estate’s assets the defendants’ costs of $25,000 may be met, some $6875 of which have been paid. In the event that the plaintiff would succeed in obtaining her costs an estimated $34,332 would then have to be met in respect of those costs. It may or may not ultimately be the case, depending upon the Court’s orders on costs, that Mrs Clarke receives something in excess of the $270,000 to which I have referred.

11 It seems to me convenient to firstly deal with the facts disclosed by the evidence before the Court.

12 Mrs Hogan in her affidavit of 25 January 2001 deposes to various matters relating to the childhood of the deceased and her upbringing. It is apparently the case that the deceased came from a poor family in which there were some nine children and during her childhood tragically fell backwards into an open fire and as a result of the burns she received spent a considerable time in hospital and missed out on much of her schooling. In the result the deceased was apparently illiterate and had trouble with mathematics and as a child also suffered from epileptic fits. The deceased apparently worked during her teenage years at the Bonds Woollen Mills and suffered some damage to her hearing from the noise of machinery. She had occasions of depression during the period of onset of menopause. She was apparently reliant upon her husband to do all her reading and writing, but his eyesight became so bad from cataracts that in time he could no longer read or write for her.

13 Apparently the deceased and her husband lived from about 1935 to 1974 in a rented semi-detached house in Harris Park and when that property was sold a house was purchased in Boundary Street Parramatta.

14 While the plaintiff was in infants school the deceased provided domestic help and took in ironing and had a number of cleaning jobs. She had various medical problems and on the plaintiff’s evidence was a superstitious person.

15 The plaintiff’s evidence was that she attended Parramatta Public Infant School and Parramatta Girls Public School but at first could not keep up with the work and was graded at the bottom of the class. Finally, when she was in sixth grade and home sick from school it was suggested by a doctor that her eyesight be checked and when it was discovered that she needed glasses she began to improve at school.

16 Her evidence was that her mother did not show her any particular affection. During her formative years, her mother had said to her at times that when the deceased’s mother had died she was not left anything and that the deceased wanted her own estate to be divided equally between her three children. In 1962, when the plaintiff was fifteen, she completed three years of high school and received her Intermediate Certificate. She wished to go on and become a teacher, but her mother indicated that it was necessary for her to obtain a job and that she needed to commence paying board.

17 In November 1965, Mrs Lynette Clarke married her husband Mr Bill Clarke and left home. The plaintiff’s evidence was that the deceased and her husband did not get on and that she used to do lots of machine sewing for the deceased who suffered from arthritis and that from time to time she assisted her mother in that regard and that she had a number of occasions when she was together with her mother and they appeared to have had, at least at that time, a cordial and communicative relationship. On the plaintiff’s evidence, after the marriage of her sister the deceased visited her sister on Sundays and her father went off to the RSL Club and began to drink more and more and this did become a problem in his life.

18 It seems then from the evidence which is before the Court that up until the time when the plaintiff left home in 1965 and/or married in 1969 the relationship which the plaintiff had with her mother and father, was by no means an extremely or extraordinarily unusual daughter parental relationship. That is not to say that the relationship was particularly close, but it is not to suggest that there is anything on the evidence which has been shown to suggest some particular exceptional or exceptionally curious or exceptionally difficult or unusual relationship. My reading of the evidence is that this was a circumstance in which each of those in the family had their own work to do and at the same time this was undoubtedly, as it seems from the evidence, a family with the usual types of feelings, thoughts, communications and so on that one would expect of a family, albeit a family which had, as I have indicated, many problems for many reasons.

19 On 18 October 1969 the plaintiff married and the application which the plaintiff brings before this Court on the approaches taken by both counsel is centrally one which focuses upon the events following the plaintiff’s marriage. Not to put too fine a point upon it, the submission of counsel for the defendants in this case has been that the evidence shows that the plaintiff essentially in substance cut herself off from contact with and could not be said to have had anything remotely akin to a loving and harmonious relationship with the deceased. As will appear, the evidence before the Court and the submissions of counsel and the evidence given by the plaintiff in the witness box, focuses extremely closely upon the events starting with the plaintiff’s marriage and terminating essentially with the death of her mother on 12 June 2000.

20 It is clear that the plaintiff moved many times after her first marriage. The evidence before the Court, whilst not always clear as to precise dates, appears to disclose that after the plaintiff’s first marriage she lived in Sydney until some time in the 1970s, possibly the early 1970s. She then appears, on the evidence, to have left Sydney and to have been away from Sydney for a reasonably extended period, probably up to, on the evidence, about May 1977. During that period of time the evidence discloses that the deceased only heard from the plaintiff very rarely.

21 In or about 1977 the plaintiff returned to Sydney and lived in more than one place in Sydney, for a period of time in Castle Hill. Apparently in or about 1993 the plaintiff again left Sydney and lived in more than one place but certainly, apparently, lived in Queensland and as I understand the chronology, the plaintiff and her first husband separated in 1994 and she, together with her daughter Catherine, returned to Sydney and for a short period of time the plaintiff and Catherine and the deceased lived together in the deceased’s home. On the plaintiff’s own evidence during the twenty-five years of her first marriage she had twelve major moves. The chronology then continues to the effect that at some time in early 1995, arguably February or at some time between February and April, the plaintiff and Catherine left the deceased’s home. The deceased suffered a stroke in 1995. In June 1996 the plaintiff married her second husband, Mr Stewart Hogan, and evidence to which I will refer in due course was given in relation to the position which obtained between the plaintiff’s second marriage and the date of death of the deceased. In short, the evidence disclosed that in 1997 the plaintiff moved to the Australian Capital Territory, her husband purchased a unit at Queanbeyan and the plaintiff and her second husband now continue to reside in that unit.

22 In October 1998 the plaintiff purchased a unit at number 8/48 Albert Street North Parramatta and subsequently discharged the mortgage on that unit which is now unencumbered. The evidence is that the unit is currently rented to the plaintiff’s daughter at a weekly rent of $150 per week, a sum which the plaintiff accepts is a reduced rental and less than a market rental.

23 Continuing the chronology, 31 March 1991 was the date when the brother of the plaintiff and Mrs Clarke, Gordon, died.

24 Returning briefly to the occasion when the plaintiff and her first husband separated, that was in or about October 1994 and it was apparently in early December 1994 that the plaintiff and Catherine moved in with the deceased. As I have said, they lived with the deceased only for a few months, albeit that there is some issue as to exactly how many months. That issue is by no means determinative of the proceedings.

25 The close focus upon which the extent to which the plaintiff communicated with the deceased is treated within the affidavits.

26 The plaintiff was closely cross-examined on a handwritten letter which she wrote to her mother, a copy of which will be annexed to the judgment as Annexure “C”. The letter makes quite plain the depths of disappointment which the plaintiff must have had at the material time on the occasion in question and in relation to her understanding of circumstances in which an investment in the name of a family trust had apparently been made. The detail of the investment which had been made is to be found in the affidavit of Mr Mulvaney of 28 May 2001 where he gives evidence that in April 1981 he set up for the deceased the Clarke Parry Trust of which Mrs Clarke was the sole trustee and the beneficiaries were the deceased’s grandchildren, Peter and Suzanne Clarke, Eliza McCann, Heidi Parry, Catherine Parry, Roger Clarke and Mark Parry. His evidence is that in the 1997-98 financial year some $9,700 was distributed to those beneficiary grandchildren.

27 Turning for a moment to the circumstances of Mrs Clarke, there has been no submission made to the Court that she was anything otherwise than a daughter with an extremely good relationship with both her parents to whom she was very close through the whole of her upbringing and continued to be close until her father and later her mother passed away. Her affidavit of 30 May 2001, on which she was not cross-examined, gives the detailed evidence of the extent of the communications which she had with the deceased.

28 Paragraphs 6 through to 45 of that affidavit were in the following terms:

“ 6. Whilst I lived with my parents it was the norm that I did some chores around the house to help my mother and father. However, I recall that neither my siblings nor I was expected by my parents to do very much around the house. I recall that my mother was always proud of me and my other siblings when we did well at school. It was important to my mother that her children receive as good an education as she could provide. My mother was not taught to read and when I was younger she said to me words to the effect "It is important for you to have a good education".

7. 1 attended Parramatta Public School and Macarthur Girls High where I left after having obtained my intermediate certificate. For the next ten years I worked at Murray Bros, a department store in Parramatta, doing clerical work. After I started work I paid board to my mother who, also, took a portion of my wages which she banked for me. When I turned 21 I had £1,000 saved from my wages.

8. Prior to my marriage my husband and I had purchased land at Round Corner Dural and built our first home into which we moved following our marriage.

9. I remained very close to both my parents and saw them every week. I also had dinner with them once a week. Often on the weekends my father would drive my mother out to see us at our home. My mother never learnt to drive.

10. After my children were born I continued to see my mother at least once a week and my father continued to bring her out to visit my family and 1. 1 observed my mother loved spending time with her grandchildren who called her Grandma Dot. My children called my father Grandpa Charlie.

11. In or about 1976 my husband and I sold our home at Round Cnr, Dural and moved to our present home at Cranstons Road, Dural. I continued to see my mother weekly and my father brought my mother out regularly to our home on the weekends.

12. In or about the mid 1970's my father, who had been employed at the Roxy Theatre, was retrenched. He did not work again. My father began to drink alcohol heavily and he continued to do so for the remainder of his life. I continued to visit my parents at their home each week and on the weekends my mother regularly came out to my home at Dural. Often she caught the bus from Parramatta to Castle Hill where I would collect her, take her shopping, out to lunch and then take her to my home where she would spend time with my family and I before I drove her back to Castle Hill so she could catch the bus back to Parramatta.

13. Generally I spoke to my mother on the telephone every second or third day. My mother talked to me about my father's problems. At times she said to me words to the effect "I need someone to talk to about your father's alcoholism". I observed that my mother found my father's consumption of alcohol very hard to take

14. In the latter years of my father's life he became very ill and prior to his death was in hospital for six weeks. Generally my mother accompanied my father to doctors' appointments and I used to take them to those appointments. When my father was in hospital I took my mother to see him.

15. I continued to see my mother at least once a week until she died. My mother would either come out to my home or I would go to see her. I accompanied my mother shopping for groceries and on general outings. Up until the last few years of her life my mother continued to visit my family and I on the weekends.

16. In 1996 when my mother was aged 80 she stopped working. Her eightieth birthday party was held at my home and friends and family attended. The plaintiff did not come. In the latter years of her life she underwent a number of operations to her back and neck. I took my mother to all medical appointments, consultations, visits to hospital and other medical appointments. My mother had several stays in hospital and, whilst she was admitted, I visited her at least every second day and telephoned her at least once daily. I did her washing, shopping and comforted her. Generally my husband accompanied me.

17. About four years before my mother's death she suffered a stroke. After she was released from hospital she was admitted to Lottie Stewart Rehabilitation Hospital where she stayed for about six weeks. My mother needed care to stay in her own home. On a number of times she said to me words to the effect "I don't want to go into a nursing home. In fact I won't go". I spoke to the social workers about the care that my mother would need at home. With their help I arranged Meals on Wheels and home care nursing to help her with her bathing and general toiletries. After my mother returned home I did her washing and cleaned her house until she died.

18. My mother was adamant that she did not want to leave her home and lose her independence. I never suggested to my mother that she should sell her house and go into a nursing home. I knew that the last thing she wanted was to go into a nursing home. On numerous occasions I said to her "Mum, we will never put you in a nursing home if you want to stay here". At times my mother said to me "I trust you and I trust Mr Mulvaney too. You are the only two people I trust".

19. It was very important for my mother to retain her independence. A number of times she said to me "I want to be independent". For the last six months of her life my mother used a wheelchair for her mobility. I recall a couple of times when my daughter and I took her shopping that she insisted that she wanted to walk on her own rather than use the wheelchair.

20. .My husband and I also took my mother out to dinner once a week at Parramatta RSL Club. I observed that my mother enjoyed going out to dinner and mixing with people. My mother was very much at ease with people and I noticed that she enjoyed talking to and mixing with them. I perceived that she was a very personable person.

21. For about the first ten years of my married life my family and I spent Christmas, Easter, Mother's Day and other family occasions with my parents at their home. Thereafter, my parents and then later my mother joined my family and I at our home where she spent Christmas, Easter, Mother's Day and other family occasions. After the plaintiff moved from Sydney I did not spend any Christmas, Easter, Mother's Day or other family occasion with her. The plaintiff was never at our place for any of these events.

22. In 1995 my mother celebrated the 60th anniversary of her wedding. There was a family celebration at my home at Dural. The plaintiff was invited to attend however she did not come. I observed that my mother was disappointed that the plaintiff did not attend. She said to me "She doesn't care, love. What have I done? I don't know what I have done. I don't know why she is treating me like this". In the last few years of her life my mother said similar words to me many times. At other times she said to me "Why does she (meaning the plaintiff) hate me. What have I done to make her hate me?".

23. My mother was in Westmead Hospital where she died. She was in a coma and I was advised that my mother did not have long to live. On 6 June 2000 I telephoned the plaintiff to let her know about our mother. However I was unable to speak to her. I left a message on the answering machine saying words to the effect "Beverley mum is dying and you should ring Westmead Hospital or myself'. I heard nothing from the plaintiff. A few days later, on 10 June 2000, I telephoned the plaintiff again to tell her about our mother. The plaintiff answered the phone and said "Yes" and when I said my name and tried to explain that Mum was dying she slammed the receiver down in my ear. The plaintiff did not return my telephone call. Before my mother's death there were times when she said to me words to the effect "I do not want Beverley told".

24. In or about September 1998 my mother gave my late brother Gordon and I about 1000 AMP shares each. When she gave the shares to me she said to me "I am not giving Beverley any. She does not deserve them. She has done nothing for me and does not bother with me".

25. I have read the affidavit the affidavit of John Mulvaney sworn 28`" May 2001 and confirm his evidence in paragraphs 5 and 6 therein in relation to the Clarke Parry Trust. I did not receive any benefit from the Trust. My late brother Gordon also did not receive any benefit from it.

26. 1 have the following assets which I own jointly with my husband Bill:-

(i) Home at 40 Cranstons Road, Dural $530,000.00
(ii) Contents including furniture and personal belongings $ 3,000.00
(iii) Money in savings account $ 5,000.00


27. I own solely 400 Commonwealth Bank shares with a current market value of $12,000.00 and 653 NRMA shares with a current market value of $ 1,300.00. 1 own a 1988 Ford motor vehicle which I purchased about twelve months ago for $2,000.00. My husband owns a 1994 Toyota Corolla motor vehicle which is worth approximately $9,000.00.

28. Presently I am employed by the Wesley Mission as a bookings coordinator and earn an annual net income of $25,000.00. My husband is employed as a bus driver with Glenorie Buses and earns a net annual income of $25,000.00 inclusive of overtime of around $5,000.00 annually.

29. My husband has approximately $30,000.00 superannuation entitlements of his employer's compulsory superannuation scheme. My superannuation entitlement is approximately $3,000.00.

30. I estimate the joint weekly expenses of my husband and I are as follows:
- Water rates $14.00
- Land rates $12.00
- House & contents insurance $ 8.00
- Car registration & insurance $12.00
- NRMA $ 1.00
- Car maintenance & service $ 5.00
- Medical & dental Telephone Electricity Fuel Food $10.00
- Telephone $ 10.00
- Electricity $ 20.00
- Fuel $48.00
- Food $150.00

31. 1 have read a copy of the plaintiff s affidavit sworn 25 January 2001 and reply discretely thereto using the same paragraph as appears therein:-

10. As previously deposed herein my mother was illiterate. Up until my father's death I observed many times throughout my life that he read letters, papers and other documents to her. After my father died it was my mother's customary practice to leave any correspondence, cards and anything else she needed to be read to her in a letter holder in the dining room of her home. When I visited her she said to me "Go through the letters for me, love". It was my practice to read to any correspondence she had received to her. I observed that there was rarely anything from the plaintiff to my mother.

17. In 1999 after having saved for ten years my husband and I had a holiday in England. Throughout our married life we had never had a true holiday and in that year we achieved our life's dream. My mother neither paid for nor gave me money towards the holiday.

27. Following the plaintiff s marriage in 1969 she and her husband purchased a house in Epping. Some time after the marriage the plaintiff became involved with the Mormon Church and then she and her husband sold the house. The plaintiff left Sydney and insofar as I now recall she and her husband moved from town to town. She did not keep in contact with me. There were times when my brother said to me "I do not hear from Beverley. She has cut off contact". From time to time my mother said to me words to the effect "I rarely hear from Beverley". It was my perception that the plaintiff had cut off contact with her family.

1 recall that when I was younger and living at home it was my perception that the plaintiff considered my mother and I to be not good enough for her. The plaintiff, my mother and I often walked to work and I recall the plaintiff would walk on the other side of the street to the side rather than walk with my mother and I.

The plaintiff was away from Sydney for about ten years during which time she had very little contact with my mother. At times she sent my mother a card however I recall that it was only on a very rare occasion that a card was sent because when my mother received a card from the plaintiff she said to me in words to the effect "Beverley has sent me a card". Many times my mother said to me "I have been waiting for something from Beverley but I haven't heard from her".
29. My mother did not have annual holidays with the plaintiff.

34. I recall that when the plaintiff went to live at my mother's house towards the end of 1994 my mother telephoned me and said "Beverley, Catherine and Heidi have come to stay because she's left Robert." Beverley stayed with my mother for about three to four months during which time I continued to see my mother weekly. Towards the end of this period, my mother said to me a number of times "I have had enough. She won't talk to me. She won't even eat with me".

39. After the plaintiff left my mother's home she did not keep in contact with my mother. At times my mother said to me words to the effect "I've been waiting to her from Beverley but I have not heard anything from her". Approximately nine months after the plaintiff left my mother's home, my mother said to me "Beverley has rung up and asked for money. I am not giving her any. The only reason she phoned me was to ask for money".

41. Shortly after my mother had her 80' birthday she received a letter from the plaintiff. I was visiting my mother and she said to me "There's a letter there, love. Will you read it?” I opened the envelope in which there was a letter and also a photo. I read the letter to my mother and I recall in it the plaintiff wrote that she had remarried. She had also included a photograph of herself and her husband. I observed that my mother was very hurt and she said to me words to the effect "I am just not good enough to be told". I also recall that my mother was asked to only one of the weddings of the plaintiff's children. When she learnt that the plaintiff's children had been married and she had not been invited to their wedding she said to me words to the effect "Beverley just does not feel that I am good enough". I observed that my mother was very hurt about not having been asked to attend her grandchildren's weddings.
About two years later the plaintiff and her husband visited my mother. My mother told me of their visit.
42. At Easter 1999 my brother Gordon died. He drowned. I received a telephone call from my brother's son who informed me of my brother's death. I told my mother about her son's death and it was one of the hardest things I have ever had to do. I tried to telephone the plaintiff to let her know of Gordon's death, however the telephone number I had was a silent number. I telephoned the plaintiff's son in Queensland and advised him of my brother's death. The plaintiff did not contact my mother until some months following my brother's death.
43. Prior to her death the plaintiff made very little contact with my mother. When the plaintiff contacted her, my mother telephoned me. I noticed that my mother usually was quite upset about the plaintiff's contact. The last time the plaintiff's visited my mother was March 2000. 1 recall my mother telephoned me and said "She does not worry me anymore. I have had enough. They (meaning the plaintiff and her husband) were walking around the house asking me who was going to get what when I died. I told her I had made a will and that my wishes were in there as to who gets what".
44. A previously deposed herein I never suggested to my mother that she sell her home and move into a nursing home.

45. Towards the end of her life my mother informed me of the contents of her Will and said to me "Beverley doesn't care about me. She also said to me "I do appreciate what you are doing for me love". I observed that my mother always appreciated anything, no matter how small, anyone did for her.”

29 It is then necessary to focus upon the degree of contact and the relationship between the plaintiff and the deceased during the years to which I have referred, that is to say 1969 through until her mother’s death. The evidence before the Court suggests and my finding is that the plaintiff and the deceased had not only a relationship which the plaintiff in giving evidence in the witness box herself described as a strained relationship, but a relationship in which the degree of contact was so sparse and absent of the content of the type which one would usually expect of a daughter mother relationship, as to make good the proposition that the plaintiff spent virtually no real time in endeavouring to foster and keep the relationship an ongoing relationship. The evidence treated, for example, with the circumstance that in, as I have said, 1991 the plaintiff’s father died. She did not attend the funeral and on my findings she did not contact her mother after her father’s death in terms of consoling her mother in that regard. This was years before the December 1994 return to her mother’s house dealt with in the judgment.

30 A number of explanations have been sought to be given by the plaintiff for that conduct and in the course of her cross-examination it was put to her that she made no effort to contact her mother after her father died. Her answer was that she could not recall whether or not that was true. Another answer which she gave in terms of the same line of questioning was that whether or not she contacted her mother after her father died, was an awkward question for her. On another occasion she denied the proposition that she had not contacted her mother after her father died. In any event the evidence before the Court included the evidence of Mrs Valerie James who had been a friend of the deceased from 1972, who gave evidence that, following the death of the plaintiff’s father, the deceased said to Mrs James that she was very hurt that the plaintiff did not make any effort to contact her after the death of her husband and had not even come to the funeral.

31 Another matter in relation to which the plaintiff was closely cross-examined concerned the death of her brother, Gordon. As I have said, Gordon died on 31 March 1999. It was put to the plaintiff in cross-examination that after Gordon’s death she did not telephone her mother to comfort her in relation to his death and she agreed with that proposition. It was also put to her that she had not visited her mother to console her in respect of Gordon’s death. Generally, the evidence of the plaintiff in this regard was that she agreed with this, her evidence being that although she later learned of it, she was not in fact told of Gordon’s death at the time.

32 There is then the further evidence in relation to the plaintiff’s conduct in and about the time when her mother was close to and then in fact passed away. In that regard, the evidence given by Mrs Clarke and before the Court and not cross-examined upon, was that the deceased was in Westmead Hospital when she died and was in a coma and that she had been advised that the deceased did not have long to live. On 6 June 2000 Mrs Clarke swore in her affidavit that she had telephoned the plaintiff to let her know about the deceased but was unable to speak to her and left a message on the answering machine saying words to the effect:

“Beverley, Mum is dying and you should ring Westmead Hospital or myself.”

33 Her evidence was that she heard nothing from the plaintiff and that a few days later on 10 June 2000, this being two days before the deceased died, Mrs Clarke telephoned the plaintiff again to tell her about the deceased and that the plaintiff had answered the phone and said, “Yes” and when Mrs Clarke said her name and tried to explain that the deceased was dying the plaintiff slammed the receiver down in her ear. On her evidence, the plaintiff did not return the telephone call and before her mother’s death there were times when the deceased said to her that she did not want the plaintiff told.

34 The plaintiff’s evidence in relation to this issue was that on 6 June she did play an answering machine message when she arrived home which had words to the effect:

“Mum is in Westmead Hospital and she is not very well at all. Can you ring me. [Gave the telephone number] or call the Westmead Hospital”.

35 Her evidence was nothing was said in terms of the deceased dying and that she did telephone Westmead Hospital to find out for herself what the situation was, that she was told by the nurse to phone Mrs Clarke and asked to speak to some medical staff who could tell her what the deceased’s condition was. An intern said that she had not yet seen the deceased and that the plaintiff should telephone in the morning again and ask for a Dr Chaplin and said that the deceased had been taken to hospital on 4 June after she had been short of breath for a week. The plaintiff’s evidence was that she telephoned the hospital each day and finally spoke on the Thursday with a member of the medical staff who said that the deceased would go into palliative care and that it was at that time only that she was aware that the deceased was dying and that when she phoned on the Friday evening the nurse had told her words to the effect:

“Your mother is unconscious at the moment but I will tell your mum that you have phoned.”

36 Her further evidence was that on the Saturday Mrs Clarke telephoned and said that she was at the hospital the previous night and did the plaintiff know that the deceased was dying. The plaintiff said “Yes”. Mrs Clarke said “okay then, see ya”, and hung up and that she had not slammed the receiver down in Mrs Clarke’s ear and that Mrs Clarke did not phone again and that she subsequently had to contact St Johns Church to find out details about the funeral.

37 The circumstances of the return to Sydney of the plaintiff and Catherine have already been briefly referred to. A deal of affidavit evidence was adduced in relation to this period of time. The plaintiff’s evidence was that she and Catherine had moved back to Sydney. There being a delay in settlement of her property interest they house-sat for some time but on 10 December 1994 they moved in with the deceased who had said that the plaintiff was a godsend. The deceased said that she was going to have an operation for a cataract on her eyes and that the plaintiff would be able to help her put the drops in her eyes. The plaintiff’s further evidence was that she took the deceased shopping and cared for her and took her to visit friends and to the doctors and set her hair and that they kept one another company at night by watching television and that she removed paint from windows in the house so that they could be opened and that she attempted to do some gardening, painting and sometimes cooking for the deceased. She also gave some evidence of cleaning the house and washing the curtains before a visit by Mr Mulvaney to discuss the Hawksley Trust Account and that she had tried to teach the deceased to read.

38 Her evidence as to the so called lockout was that it was not long after she started to teach the deceased to read that the deceased locked the plaintiff and Catherine out of the home on 18 February 1995 after she had taken Catherine to a youth activity at church on a Friday night. The deceased, on her evidence, had become angry and yelled when they arrived home and said this is not a boarding house. Early on the Saturday morning the deceased had said, “Get your friend at church to find you somewhere to live”. The deceased had waved her arms and begun to verbally abuse the plaintiff saying, “You are no good and never were any good”. When she and Catherine, as I understand the evidence, left the house the plaintiff’s evidence is that they returned the following morning to try to speak to the deceased and obtain some clean clothes for Catherine and herself to wear, but the deceased had placed a chain on the door from the inside and she could not get in when she tried to use her key.

39 On this issue the evidence given by Mrs Clarke was that she recalled when the plaintiff went to live at the deceased’s house because the deceased had telephoned her and said “Beverley, Catherine and Heidi have come to stay because she has left Robert”. Mrs Clarke’s evidence was that the plaintiff stayed with the deceased for about three to four months during which time she, Mrs Clarke, continued to see her mother weekly. Towards the end of that period, the deceased said to Mrs Clarke a number of occasions:

“I’ve had enough. She won’t talk to me. She won’t even eat with me.”

40 In response to that evidence, the plaintiff’s evidence was that Heidi had not gone to stay with the deceased and that it was not true that she did not talk to and would not eat with the deceased. Her evidence was that the deceased said to her one day “I would like to have my main meal before Catherine and you get home” and she said that was fine. Her further evidence was that by the time that Catherine and she arrived home the deceased had already had her main meal and she then had attended to cook for Catherine and herself and used to give the deceased some of their desert for which the deceased thanked her. Her evidence was that often when Catherine and she were having that later meal, the deceased would be on the telephone and that she sat near the kitchen table when speaking on the telephone and to give the deceased some privacy, Catherine and the plaintiff ate out on the verandah.

41 Evidence given on affidavit by Mrs James was that in 1995 the deceased said to her that she had not heard from the plaintiff in years. The deceased had said to Mrs James that the plaintiff had telephoned to say that she and her husband were separating and that the plaintiff was coming back to Sydney from Queensland. The deceased told Mrs James that the plaintiff had asked if she and Catherine could stay with the deceased until the plaintiff found permanent accommodation. Not long after the plaintiff and Catherine had come to stay at the deceased’s home the plaintiff’s other daughter Heidi, on Mrs James’ evidence, also came to stay. Mrs James’ evidence was that the plaintiff and her two daughters stayed with the deceased until April 1996. Mrs James’ evidence was:

“During that time the deceased visited my home on numerous occasions and as time went on I observed she became very agitated . I recall she said to me on a couple of occasions words to the effect ‘I was under the impression that she was only going to be staying for about a month’”.
[Emphasis added]

42 It seems clear from the evidence that the relationship between the deceased and the plaintiff, well prior to the deceased and Catherine arriving back in Sydney and staying for a few months with the deceased, had become a relationship of extremely rare communication and that in these few months the difficulties of feeling between the plaintiff and the deceased were exacerbated with the plaintiff on several occasions during the course of cross-examination having referred to being “locked out” of the house or some such.

43 In treating with the relationship between the plaintiff and the deceased it is necessary to take into account that at least for a period of time the plaintiff was living at Castle Hill which was not far from Parramatta. She did not attend her father’s funeral and on my findings she did not contact the deceased after her father’s death. Mrs Apps evidence was that she had met the deceased in 1988 and at that time observed her to be in a state of distress. The deceased had said that she would like some help. Mrs Apps interviewed the deceased to see if the church could be of some assistance to her. The deceased said:

“I am having some difficulty with my family. I am particularly upset that my daughter Beverley is not keeping in contact with me. My other daughter Lynette helps me but Beverley does not even take the time to ring me or see that the grandchildren keep in touch.”

44 There were occasions when the deceased spoke to her about Beverley. The deceased said to her:

“When Beverley left her first husband I felt obliged to take in her and her daughters because they had nowhere else to go. I was not very happy about this but I felt Beverley pressured me to agree.”

45 There was also evidence before the Court given by Mr Stewart Hogan. In his affidavit of 12 December 2001 he gave evidence that he married the plaintiff in June 1996 in an inexpensive country church which I understand took place in Canberra. Some of his relations attended the wedding. The plaintiff had said that she was reluctant to invite people from Sydney because of the travel. On his evidence, having come from an emotionally close family, he was keen to get to know his new mother-in-law, but the plaintiff was reluctant. His evidence was that the plaintiff was hurt by the circumstances of her eviction from the deceased’s home and that he looked for opportunities to make gradual progress to meeting the deceased. Some two years later he and the plaintiff had visited Sydney from time to time and on one occasion in July 1999 on heading back towards Queanbeyan on the afternoon of the Friday, he notes:

“We had some time to spare and I was able to prevail upon Beverley to take us to her mother’s place.”

46 He also gave some evidence about another occasion, namely 16 April 2000 when the plaintiff and he:

“Had managed to accomplish more than expected on a two day visit to Sydney and found ourselves with plenty of time for our loosely planned longer visit with her mother.”

47 That evidence given by Mr Hogan, as the defendant’s counsel submitted, does not suggest any or any particular or particularly strong or heightened desire by the plaintiff to visit the deceased on these occasions.

48 Ultimately, when one focuses upon all of the detailed evidence as to the number of communications and type of communications between the plaintiff and the deceased during the period between June 1996 and the date of death of the deceased in June 2000, a period of some four years, aside from the two occasions of the visits to which I have referred there were a limited number of written communications and these are generally to be found as the annexure marked “B” to the affidavit of the plaintiff of 17 December 2001. Those are letters of 1 August 1999, 2 October 1999, 7 November 1999 and 5 March 2000 and 6 April 2000 from the plaintiff to the deceased.

49 There was also evidence given in relation to the eightieth birthday party of the deceased held at the home of Mr and Mrs Clarke which the plaintiff had not attended. The plaintiff’s evidence was that that birthday party was held on a Sunday and that as a member of the Church of Jesus Christ of Latter Day Saints it was against her beliefs to attend parties on the Sabbath and that she told the defendant of this at the time. On her evidence, a similar situation arose in respect of the deceased’s fiftieth wedding anniversary and there was some evidence given in that regard in relation to the suggested receipt by the plaintiff of the invitation the evening before the wedding anniversary took place.

50 Mr Terrence Seymour also gave evidence on affidavit, he being a first cousin of the plaintiff, to the effect that he saw the deceased at least once a fortnight for very many years before she passed away and that he had never heard her speak critically or unkindly of the plaintiff or of any of her children or grandchildren and that he could recall the plaintiff saying to him over the period of his visits that she would leave everything amongst her three children and never speaking favourably about one child against any of the others.

51 Mr Mulvaney’s fourteen paragraph affidavit of 28 May 2001 is of some importance and will be set out in the judgment in its revised form with the exception of the second sentence of paragraph 14 which was not read. Having been objected to it was rejected.

1. “I am a defendant herein.

2. I was in practice as a chartered accountant in Parramatta for approximately forty years and retired in 1990.

3. In or about 1953 the deceased started working for me as a cleaner in my offices at Parramatta. She worked for me as a cleaner until about 1966.

4. After the deceased stopped working for me she kept in contact with me. She phoned and came into see me from time to time.

5. In or about early 1981 the deceased contacted me for advice on making some provision for her grandchildren. In April 1981 I set up for the deceased the Clarke Parry Trust of which the deceased’s daughter, Dorothy Lynette Clarke, was the sole trustee and the beneficiaries were the deceased’s grandchildren, namely Peter Clarke, Suzanne Clarke, Eliza McCann, Heidi Parry, Catherine Parry, Roger Clarke and Mark Parry. To the best of my knowledge, information and belief the trust was wound up on 22 July 1998.

6. In the 1997/98 financial year $9,700.00 was distributed to the seven beneficiaries. The trust had monies invested with AMP and as a result the trust received an allocation of 772 shares. Of these 72 shares were sold to cover costs and go towards the distribution of $1,346.40. Each of the beneficiaries elected to have the shares transferred to them and this occurred on 22 July 1998. The trust was wound up after the shares were transferred.

7. After the trust was established the deceased kept in contact with me and I called to see her approximately every six months and telephoned her regularly. The deceased also kept in contact with my family and I and telephoned regularly.

8. In the last few years of the deceased’s life I observed that she became preoccupied with her estate. More than once, on the exact dates of which I cannot now recall, she said to me words to the effect “I want my estate distributed according to my wishes. You are one of the few people I can trust. I want you to look after my estate for me after I have died. I want you to be one of my executors”.

9. Thereafter a number of times the deceased sought assurance from me that her wishes would be carried out. A number of times she said to me words to the effect “Lyn has been very good to me over the years. She has looked after me, shopped for me, taken me out. Lyn is a real daughter to me. Bev is not”.

10. The deceased was not literate and could neither read nor write. However in all of the years that I knew her I noticed that she was very definite in what she wanted. I noticed that the deceased was a very articulate woman who expressed herself well and was certain about what she wanted.

11. In or about the mid 1980's the deceased spoke to me about the plaintiff. The conversations I had with the deceased generally occurred over a cup of tea. Over the years and on several occasions the dates of which I cannot now recall, the deceased discussed the plaintiff with me and said to me words to the effect “Bev is a disappointment as a daughter. She does not contact me. I do not see her. She has nothing to do with me. I have had very little contact from her children. Lyn is a real daughter to me. Bev is not”.

12. Over the years I met the deceased’s daughter Lynette Clarke at the deceased’s home on occasions when I had called in to see the deceased. I went to the deceased’s eightieth birthday party at Mrs Clarke’s home.

13. I recall one specific occasion when the plaintiff came into the deceased’s conversation at a time when I was visiting her. She said to me “Bev has asked me for money. She came to Sydney. I’m not going to lend it to her”. In all of the years that I knew the deceased I never met the plaintiff nor have I spoken to her.

14. I have read a copy of the plaintiff’s affidavit sworn 25 January 2001. As previously deposed herein the conversations I had with the deceased concerning the plaintiff usually arose in the context of the deceased discussing her estate with me. I observed that the deceased was dogmatic in what she wanted to happen to her estate. Over the years the deceased said to me words to the effect “I’ve given a great deal of thought to my will and I want to acknowledge Lyn’s long time care and consideration for me”.

52 It seems to me important to note that the deceased obviously trusted Mr Mulvaney to the extent of appointing him as an executor and having had an employee/employer relationship with her and he having given her advice and set up the trust to which I have referred. In the last few years of the deceased’s life he observed that she became preoccupied with her estate and on more than one occasion said to him:

“I want my estate distributed according to my wishes. You are one of the few people I can trust. I want you to look after my estate for me after I have died. I want you to be one of my executors.”

53 On a number of occasions thereafter she sought assurance from him that her wishes would be carried out and on a number of occasions said words to the effect:

“Lyn has been very good to me over the years. She has looked after me, shopped for me, taken me out. Lyn is a real daughter to me. Bev is not.”

54 His evidence was also:

“The deceased was not literate and could neither read nor write. However, in all of the years that I knew her I noticed that she was very definite in what she wanted. I noticed that the deceased was a very articulate woman who expressed herself well and was certain about what she wanted.”

55 He also said to her:

“Bev is a disappointment as a daughter. She does not contact me. I do not see her. She has nothing to do with me . I have had very little contact from her children. Lyn is a real daughter to me, Bev is not.”
[Emphasis added]

56 His evidence was also that he observed that the deceased was dogmatic in what she wanted to have happen to her estate and that over the years she said to him that she had given a great deal of thought to her will and wanted to acknowledge Lyn’s long time care and consideration for her.

57 I turn then to the position in relation to the principles of law which the Court is to apply, conscious of the fact that I have not yet treated with the detailed position of the assets and liabilities and income and expenditure of the plaintiff or of her sister.

58 The majority of the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 209-210 restated the approach to be taken by a Court as follows:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and proper maintenance et cetera were explained in Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise , involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take for example a case like Ellis v Leader where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”
[Emphasis added]

59 I turn then to consider the asset and income circumstances of the plaintiff having already outlined early in the judgment the estate which was and is available.

60 The plaintiff’s assets comprise the unit at North Parramatta to which I referred which is unencumbered and valued in the order of approximately $245,000, some $10,000 in value of furniture and a motor vehicle worth approximately $3,400. She has a liability of approximately $11,300 owing to the Commonwealth Government under the Higher Education Contribution Scheme for a four year Batchelor of Education Secondary (Social Sciences) teaching degree she recently completed. She is employed under contract as a teacher with an annual gross income of $37,500. Her estimated annual expenses are $8329, being $160 per week. The unit at North Parramatta is rented to her daughter at a weekly rent of $150, a sum which the plaintiff accepts is a reduced rental and less than a market rental. As I have indicated the plaintiff is now married. The evidence is that her husband has an annual gross income something above $42,573, superannuation benefits of $93,000 and a unit worth $75,000 on which there is secured a mortgage of approximately $21,000. The plaintiff has stated that she has needs including anticipated dental work of $9,615, costs of repairs to the unit at North Parramatta of $40,154, a new motor vehicle $37,825, the HECS debt of $11,003 and payment out of the husband’s mortgage of $21,280.

61 It is fair to say that in the course of address the plaintiff’s counsel certainly did not press heavily, if he ultimately pressed at all, any suggested obligation to pay out the husband’s mortgage. Rather, Mr Rundle put the matter in terms of the plaintiff’s husband being the sole registered proprietor and mortgagor and the plaintiff being, in that fashion, presently dependent upon being entitled to continue living in his unit.

62 A closer examination of the above figures suggests that the plaintiff is receiving in the order of approximately $88,000, including the reduced rental to which I have referred. On my reading of the above figures the plaintiff has sufficient income to meet her weekly expenses and has a surplus of income. The submission made by Mr Rundle on her behalf was that it is essentially necessary for her to have some sort of buffer in that regard by way of provision. Mrs Clarke as the residuary beneficiary and the charity’s position have also to be taken into account.

63 Mrs Clarke’s assets owned jointly with her husband comprise the home at Dural, valued at $530,000, contents valued at $3,000, savings valued at $5000. She also owns some CBA shares and NRMA shares together valued at $13,300 and a motor vehicle valued at $2,000. Her annual net income is $25,000 and her husband’s annual income is $25,000. Her husband’s superannuation benefits are approximately $30,000 and her superannuation benefits are approximately $3,000.

64 Returning to the authorities, the decision of the New South Wales Court of Appeal in Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 includes an extremely close examination of the decision of the High Court of Australia in Singer v Berghouse. The High Court of Australia in Singer v Berghouse made certain comments in relation to moral duty and moral obligation which comments the New South Wales Court of Appeal in Permanent Trustee v Fraser has held to have been obiter dicta. That is to say comments of the majority in Singer v Berghouse. It is true that as Handley JA in his judgment in the Court of Appeal in Permanent Trustee Company Ltd v Fraser made plain, a very extensive set of precedents which his Honour identified and summarised, had in years prior to the decision in Singer, included references to moral duty and moral claims, as, for example, to provisions of the testator family maintenance legislation being designed to provide for relief where testamentary dispositions had been made without regard to the moral claims of a child, for example, upon a parent’s bounty. Handley JA referred inter alia to a statement by Stephen J in White v Baron (1980) 144 CLR 431 where, referring to the classic test in Bosch’s case, he said:

“No doubt this requires the judge to recognise and to apply prevailing community standards of what is right and appropriate since it is by those standards that the content, both of the moral duty owed by a just husband and father to his wife and children and the departures from it, will be measured.”

65 Young J observed in Shearer vPublic Trustee re the Estate of Smith [1998] NSWSC 87, until the High Court judgment in Singer, courts considered that one of the major matters to look at was the testator’s moral obligation towards the plaintiff. Certain dicta in that case indicated that some of the justices of the High Court considered that such a matter, that is the matter of moral duty, was an unhelpful judicial gloss on the statute and might be abandoned. As Young J pointed out, despite a very strong dissenting judgment by Handley JA, the majority in Permanent Trustee v Fraser made it clear that reference to moral duty and moral obligation should not be used when applying the Family Provision Act 1982:

“ Despite a vigorous dissenting judgment, as Fraser’s case is a decision of the local Court of Appeal, it must be followed by judges in this Division. However, the way in which Fraser’s case has been applied by some counsel for applicants… is to put that all that a plaintiff need establish is that she or he is an eligible person and has needs, and as one does not have to consider the moral obligation or moral duty of a testatrix, the plaintiff must succeed.
As I pointed out in Gregory v Hudson (No 2) 18 September 1997 unreported all that Fraser’s case really did was to focus not on moral duty as such but rather on the community standards which had been enunciated by Mahoney JA in Kearns v Ellis (Court of Appeal 5 December 1984 unreported). “

66 His Honour made plain that:

“Involved in the assessment is the conduct of the [plaintiff] qua the testatrix, the freedom of the testatrix to deal with what is hers according to her own wishes, and the idea of a right and just testatrix to deal with what is hers according to her own wishes, and the idea of a right and just testatrix recognising that she has freedom to do what she likes with her estate, but also that the community would expect her to be just before she is generous.” [emphasis added]

Whilst the circumstances in that case differed from those presently before the Court, as here, the Court did have occasion to deal with independent lives lived by daughters who, in that case, had not spoken to their mother for the last two years of her life. Each had her own family and each had lived independently of their mother financially and emotionally for many years. Here, as there, the testatrix took a particular view in relation to the conduct of her daughter which has not been shown to be unjustified in terms of being unable to forgive her for effectively having had “ nothing to do with [her]”.

67 His Honour also referred to the comments of Mahoney JA who said:

“I don’t think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression has generally been understood or used by the Court. However, it avoids doctrinal and inflexible judge made rules and fulfils the Court’s function adverted to by Mahoney JA at p 8 and speaking for the feeling and judgment of fair and reasonable members of the community.”

68 It seems to me that that the above described recitation and application of principle by Young J ought be accepted as correct. As Sheller JA said in Permanent Trustee:

“Singer v Berghouse contains an authoritative restatement of the approach that should be taken by the Court when considering an application under s 7 of the Family Provision Act. However, although the Family Provision Act specifies matters which may be taken into consideration and allows the Court to take into consideration unspecified circumstances existing before and after the death of the deceased person and any other matters which it considers relevant in the circumstances it leaves undefined the norm by which Courts must determine whether a provision is inadequate for the applicant eligible person’s proper maintenance, education and advancement in life. To achieve what is seen to be the legislative intention and bring some certainty into the application of the Family Provision Act the Courts have developed principles and standards which have been applied in determining applications under the Family Provision Act and its predecessors. One such was the provision a just and wise testator would have thought it his or her moral duty to make in the interests of the prescribed claimants had he or she been fully aware of all the relevant circumstances.
In deciding whether the provision for an eligible person is inadequate for that person’s proper maintenance, education or advancement in life the Court should be guided by consideration of the provision which in accordance with prevailing standards of what is right and appropriate and in the circumstances mentioned in the Family Provision Act and then obtaining ought be made in favour of the eligible person. I do not think that this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the Courts.”
[At 46, emphasis added]

69 Returning then to the facts the subject of the evidence which has been outlined, it is necessary for the Court now to determine on those facts and on that evidence, whether the provision made by the deceased in favour of the plaintiff in the present circumstances is inadequate for the plaintiff’s proper maintenance, education and advancement in life. Applying that test, in my view, bearing in mind the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who had legitimate claims upon her bounty, in particular here, Mrs Clarke, in the circumstances before the Court and guided as the Court is by consideration of the provision which in accordance with prevailing community standards of what is right and appropriate in the present circumstances, the plaintiff has failed to establish an entitlement to the orders sought from the Court on this application. The result is no different from that reached by reference to the question: Would a just and wise testator have thought that it was his or her moral duty to make, in the interests of the plaintiff, additional provision to that here made, had they been fully aware of the relevant circumstances?

70 In my judgment the relationship between the plaintiff and the deceased was a relationship so ruptured during the thirty year period from the date of the plaintiff’s first marriage until the date of the plaintiff’s death, that applying the prevailing community standards test set out above, the appropriate order is to dismiss the application. Such an order will be made, when short minutes of order are brought in, in due course.

71 Costs are reserved for submissions.

Directions

72 The proceedings are stood over to 9.30am on 6 May. The plaintiff is directed to serve by Wednesday 1 May 2002 and to furnish to my associate submissions in support of any costs orders which the plaintiff suggests are appropriate and the defendant is directed to furnish to my associate and to serve by 2 o’clock on Friday 3 May 2002 responsive submissions.

I certify that paragraphs 1 - 72
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 30 April 2002 ex tempore
and revised on 21 May 2002

___________________
Susan Piggott
Associate
21 May 2002

Last Modified: 06/21/2002