Blackmore v Allen

[2000] NSWCA 162

NEW SOUTH WALES COURT OF APPEAL

CITATION:     BLACKMORE v ALLEN & ANOR [2000]  NSWCA 162

FILE NUMBER(S):
40276/99

HEARING DATE(S):           13 June 2000

JUDGMENT DATE:            05/07/2000

PARTIES:
Susan Blackmore - Appellant
Steven Edward Allen and Nicole Allen - Respondents

JUDGMENT OF:      Priestley JA Sheller JA Foster AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        4847/97

LOWER COURT JUDICIAL OFFICER:     Master Macready

COUNSEL:
L Ellison - Appellant
P Nash - Respondents

SOLICITORS:
Teece Hodgson & Ward - Appellant
Peter Ash & Associates - Respondents

CATCHWORDS:
Succession - Claim under family provision legislation by children of testator - Whether adequate provision for advancement in life - Where testator left bulk of estate to life partner - Family Provision Act 1982, ss 7,9 - NR

LEGISLATION CITED:
Family Provision Act 1982
Suitors' Fund Act 1951

DECISION:
1.  Appeal allowed
2.  Set aside Master Macready's order that each plaintiff receive a legacy of $80,000 and in lieu thereof order that each plaintiff receive a legacy of $20,000
3.  Confirm the Master's orders as to costs
4. The respondents to pay the costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified
5.  To the extent to which the appellant's costs of the appeal exceed the amount recoverable from the respondents they should be paid or retained on an indemnity basis out of the estate.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40276/99
ED 4847/97

PRIESTLEY JA
SHELLER JA
FOSTER AJA

BLACKMORE v ALLEN & ANOR

By his will the testator, after some minor legacies, left the residue of his estate to the appellant Susan Blackmore. The two respondents, who were his children from a previous marriage, made a claim out of the estate under s7 of the Family Provision Act 1982.  In the Court below, Master Macready ordered that each respondent receive a legacy of $80,000.  The appellant appealed from this decision.

Held: (by Sheller JA, Priestley JA and Foster AJA agreeing)

1. The appellant’s relationship with the testator was such that her claim on his estate was the same as the claim she would have had had she been married to him.  This was a claim of a high order not to be satisfied by an amount no more than a bare subsistence.  It was a claim which had to be met out of the estate before any claims by the respondents could be considered.  The amount awarded to each respondent was excessive and would have left the appellant without her appropriate entitlement out of the estate. 

2. Before an order could have been made in favour of a respondent, the Court had to be satisfied that that respondent had been left without adequate provision for his or her proper maintenance, education and advancement in life.  The claims in this case were sought only by way of an advancement in life.  Both respondents were young and in appropriate employment with good earning capacity.  Each had already received $22,333 from a trust fund which formed part of the estate.  An adequate provision in the circumstances was $20,000 to each respondent.
   Legislation:
   Family Provision Act 1982
   Suitors’ Fund Act 1951

Cases cited:
House v The King (1936) 55 CLR 499
Singer v Berghouse (1994) 181 CLR 201
McCosker v McCosker (1957) 97 CLR 566

ORDERS

1.       Appealed allowed.

2.Set aside Master Macready’s order that each plaintiff receive a legacy of $80,000 and in lieu thereof order that each plaintiff receive a legacy of $20,000.

3.Confirm the Master’s order as to costs.

4.The respondents to pay the costs of this appeal but to have a certificate under the Suitors’ FundAct 1951 if so qualified.

5.To the extent to which the appellant’s costs of the appeal exceed the amount recoverable from the respondents they should be paid or retained on an indemnity basis out of the estate.

*****

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40276/99
ED 4847/97

PRIESTLEY JA
SHELLER JA
FOSTER AJA

Wednesday, 5 July 2000

BLACKMORE v ALLEN & ANOR

JUDGMENT

1. PRIESTLEY JA: I agree with Sheller JA.

2. SHELLER JA: 

   INTRODUCTION

   The appellant, Susan Blackmore is the executor and trustee appointed under the terms of the will of the late John Nelson Allen who died on 28 June 1997.  By his will made on 31 January 1989 the testator, after giving legacies of $1,000 each to his nephews, Andrew David Perry and Philip James Perry, gave the residue of his estate to the appellant.

3. The testator was survived by his former wife Edwynne June Allen, who made no claim on his estate, and two children of the marriage, the respondents Steven Edward Allen, who was born on 25 June 1963, and Nicole Allen, who was born on 23 September 1968.  The testator and his wife had separated in 1977 and were divorced in 1978. 

4. According to the appellant’s affidavit of 13 February 1998 the assets in the testator’s estate valued at the date of his death consisted of:

“PropertyEstimated or  known value

1. REAL ESTATE  $350,000.00
              Residence at 36 Gladstone Street, Newport being
              the whole of the land comprised in Certificate of
              Title Folio 101/748336

2. MONEY IN HOUSE OR HAND approximately  80.00

3. MONEY ON CURRENT ACCOUNT
              a) Cheque account number 02-866-4765 - National
              Australia Bank - St Leonards branch   4,161.72
              b) Cash Management Trust with Macquarie
              Investment Management Limited
              Money on deposit - Trust Accounts  867.64    
                 c) MLC Australian Trust Account No 1003-58753  36,279.39
              d) GT GLOBAL International Bond Fund A/c A1133   9,157.65

   e) Perpetual’s Industrial Share Fund A/c Allej 024  16,007.97

   f) Jardine Fleming World Wide Strategy Fund A/c

   900010671    23,148.23

   g) Tyndall Equity Performance Fund No 10 A/c

   120440        21,115.58

   h) Rothschild File [sic Five] Arrows Retirement Fund

   A/c ALJ90A  58,994.35

   i) Advance Imputation Fund Acct 502733589  15,821.67

   j) Advance Approved Deposit Growth Fund Acct

   1107267  41,776.65

   k) BT Lump Sum Super Fund  34,754.94

   l) BT Hi-Yield Trust   884.67

   m) BT Select Market Trust - International Fund  15,525.17

   n) GEM Property Securities Fund A/c C0000175034  35,390.10

4. MOTOR VEHICLE
              1993 Toyota RV6 Wagon Reg. No SNV 928                 22,000.00

5. OTHER PERSONAL PROPERTY
              Furniture and Household Chattels   3,000.00

6. Life Policies
   a) Tower Life Policy No 1/276502        13,600.68
              b) AMP Policy No 40604204C           34,999.05

7. Superannuation Policy with Mercantile Mutual -
              deferred annuity 8802412968  92,446.61
   Summary of Assets and Liabilities
              Total value of assets  $830,012.07”

1. According to the affidavit, after the payment of liabilities of $5,128 and funeral expenses of $3,525, the likely value of the net distributable estate was $821,359 less the liabilities of the estate incurred after death which would include the legal costs in connection with obtaining the grant of probate and the administration of the estate and the preparation of income tax returns. 

2. The whole of the proceeds of the superannuation policies with Mercantile Mutual were subsequently paid to the appellant.  The trustees of the Rothschild Five Arrows Retirement Fund distributed the proceeds of that fund, then valued at $67,000, in equal shares to each of the appellant and the two respondents, the amount of payment to each being $22,333. 

   FAMILY PROVISION ACT CLAIM

3. By summons filed on 21 November 1997, the respondents claimed orders pursuant to s7 of the Family Provision Act 1982 (the Act) out of the testator’s estate. The appellant was the defendant to this application. Section 7 of the Act provides that subject to section 9, on an application in relation to a deceased person by an eligible person, the Court “may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.” “Eligible person” is defined in s 6(1) to mean, inter alia, a child of the deceased person. Section 9(2) of the Act provides, so far as material:

   “The Court shall not make an order under section 7 … in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

   (a)the provision (if any) made in favour of the eligible person by the deceased person either during the persons lifetime or out of the person’s estate …

   is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.”

4. On 24 March 1999 Master Macready, who heard the application, ordered that each plaintiff receive a legacy of $80,000 and that their costs on a party and party basis and the defendant’s on an indemnity basis be retained or paid out of the estate. 

5. The appellant has appealed against the orders that the respondents receive such legacies.  By the Notice of Appeal, as amended by consent, the appellant relied upon grounds which included that the amount of the legacies was excessive and that the Master had erred by reason of  misstatements of fact and miscalculations he was alleged to have made.  An order was sought to have the Master’s decision set aside and the summons dismissed with the respondents to pay the appellant’s costs of the appeal. 

   THE MASTER’S REASONS

6. Master Macready proceeded on the basis that, after the deduction of $39,852, the estimated costs of the plaintiffs and the defendant, there would be, in addition to the house and the testator’s motor vehicle, a cash surplus of $298,524.  It seems that the Master calculated this amount without regard to the payment from the estate of the proceeds of the Rothschild fund.  It is uncertain whether this was included at a value of approximately $60,000 or at the payout figure of $67,000.  I am inclined to think the former and would treat the true cash surplus available as reduced by $60,000.  On the other hand, it seems that the Master failed to bring into account the proceeds of the Tower Life Policy of $13,600.  This should be added to the cash surplus.  Making this deduction and addition, the resulting figure is about $252,000.  If the order stands the appellant would be left under the will with the house, the motor vehicle, and assets worth approximately $92,000. 

7. In his reasons for judgment, the Master referred briefly to the relationship between the testator and the appellant, whom he first met in 1981 when their relationship began.  They lived separately until 1982 when they travelled to Europe.  From that time, they began living together as man and wife.  They returned in December 1982 to a flat at Hardie Street Neutral Bay (“Neutral Bay”) and lived there until 1985.  In that year the testator moved out.  Thereafter the appellant and the testator usually maintained separate households, although from time to time the testator would come back and live with the appellant during periods of recuperation after illnesses. 

8. The Master then dealt with the circumstances of each respondent.  At the date of hearing Nicole was 30, single and with no dependants.  She earned a salary of $38,000 per annum as a manager employed by Ikea.  She lived in rented accommodation and owned a motor vehicle worth approximately $21,000, on which she owed $18,200.  She was in good health.

9. Nicole was nine when her parents separated.  Thereafter she lived with her mother and saw the testator at weekends.  Between 1983 and 1988 she lost contact with the testator.  Between 1992 and his death she saw him every few months and would telephone him.  The Master found that, once Nicole matured, she made more effort after 1992 to make contact with the deceased.  The Master was of the view that the lack of contact in those years was not a matter which would seriously detract from any claim that she might have on the testator’s bounty.  The Master stated correctly that it was not the task of the Court to make what might be described as a fair will nor was it the task of the Court to rewrite the will to provide what might be thought to be morally correct.  The Master said:

   “The task of this Court under this legislation is to determine whether or not the plaintiffs have been left without adequate and proper provision for their maintenance, education and advancement of life.”

   He said:

   “The plaintiff Nicole expressed her needs as needing to pay off debts and to buy a house costing about $250,000 in the Maroubra area.  In final submissions, that request was modified to seeking a legacy equal to one-quarter of the estate, namely, about $208,000.

   It is important to realise that one is here dealing with what are the appropriate provisions for a child.  Matters of maintenance are not appropriate, nor has any need for education been advanced.  What is really sought is some sum by way of advancement in life.

   …

   Clearly, Nicole has some need to, perhaps, meet a debt which she has on the car, and some other provisions by way of a sum for advancement in life, provided of course the estate can accommodate that request.  I will come back to that matter later.”

10. At the date of hearing, Steven was aged 35 working on a salary of $50,000 per annum.  He owned a motor bicycle said to be worth $15,000.  He had one dependant child, a daughter of a de facto relationship, who was aged nine.  He had purchased a unit with his de facto partner for $275,000.  The partner had paid the deposit of $25,000.  The balance of $250,000 was borrowed.  They had a joint debt of $25,000.  He owed $4,000 to the Victims Compensation Tribunal. Steven said he was eleven when his parent separated in 1975.  Like his sister, after the separation, he lived with their mother and saw his father at weekends.  In 1982 he obtained a trade qualification in graphic reproduction.  However, when he was eighteen, Steven became addicted to heroin and was imprisoned on three occasions.  During this time, the testator attempted to help him and visited him in prison.  Since 1988 the respondent has lived drug free.  In the following year he obtained employment for some nine years and his relationship with his father improved.  The Master said:

    “There were visits between them and from time to time the deceased would look after his grand daughter Jessica.  Although the evidence is brief, there is a description of occasions when Steven would take his father on outings and rides on the motor bike which apparently he enjoyed.  Particularly in the period when Steven was drug-free he seems to me to have a reasonable relationship with the deceased.  Considering the not unusual situation which arises when the parents separate, I do not think that there is anything which would lead me to devalue the claim which Steven might have on the bounty of the testator.” 

    The Master said this about Steven’s needs:

    “Steven’s needs are also expressed in terms of wanting a house.  However, since advancing that need, he now has one and he has some rather substantial joint liabilities with his partner and his own individual liabilities.  There is nothing advanced on his behalf to suggest that he needs maintenance, or further education, and it is not suggested that he and his partner are not adequately making do, notwithstanding their high levels of debt.”

11. The Master recognised that the appellant had a strong claim on the bounty of the testator.  At the time of the trial, she was receiving a disability pension and, apart from that, did some work one day a week at a gallery.  Apart from moneys she received as a result of and after the testator’s death she had, according to her oral evidence, about forty “something” thousand dollars in the bank.  The Master said she had about $40,000 to $50,000 in cash in savings.  She owned furniture which was insured for $41,000 and a Nissan Patrol worth about $8,000.  She lived in the same rented accommodation in Neutral Bay that she had taken with the testator when they returned to Australia in December 1982 and began living together.  The appellant wanted to move to the house at Newport which she had continued to renovate since the testator’s death.  Her health is not good.  She has had long term treatment for depression since 1976.  Dr Eric Fisher, whose report of 18 May 1998 went into evidence, said that she had seen a number of psychiatrists during this time.  Her depression had shown a tendency to relapse.  Dr Fisher said:

    “She had a co-dependent relationship with John Allen since1989.  Although they lived separately, their co-dependency was such that neither could live without the other.  Susan Blackmore needed the support of John Allen both emotionally and financially, John Allen desperately needed the caring of Susan Blackmore.  Without her he would have died earlier.  They tended to isolate themselves form the world.”

12. As the Master said, Dr Fisher concluded that the appellant was incapable of obtaining gainful employment because of the fluctuation of her endogenous depression as well as her personality.  He considered that she would be incapable of obtaining employment in the open labour market.  He also expressed the view that he would be unable to assess the costs of future treatment.  He considered the appellant would require supportive psychotherapy for at least ten years and possibly for the rest of her life.  Dr Fisher’s evidence was not challenged. 

13. A lot of the testator’s problems in life resulted from his heavy drinking.  The Master found that the appellant had clearly supported him, not withstanding that problem, until he died.  The property at Newport was purchased in 1990 as a diversion for him but the problem continued.  The Master said:

    “There are a number of occasions when the defendant cared for the deceased, even after the period when they moved to separate accommodation in 1985.  These were, for example, after he had a heart attack in 1988, and a stroke in 1990.  Even when they were living separately, the defendant would talk to him, the deceased, on a daily basis, seeing him once or twice a week.  They seemed to lead lives which were not outgoing at this stage and I think one could conclude that, even though they did not live together any longer after 1985, there was a substantial interdependency between them between 1985 and the death of the deceased.  Each of them had problems and each of them helped the other in different ways.  I think it is clear that the defendant was, to use the term, the deceased’s life partner over his last sixteen years.”

14. The Master regarded the appellant’s claim as “clearly an important one”.  They were together for a long time and she contributed substantially to his welfare.  She helped prepare and maintain the Newport home and, since his death, had used her funds to this end.  The Master said:

    “Her present situation is a major factor.  Although forty-five, she has the psychiatric problems to which I have referred and has little future in the open labour market.  Although it is good to see that she is seeking to have other employment, unfortunately, she has no substantial qualifications.

    It is not really clear on the evidence what her future needs will be when she moves to Newport.  Clearly she will not have a substantial payment for rent.  However, I think just a consideration of her circumstances clearly indicates she must have proper accommodation and a sum for contingencies.”

15. That brought the Master back to considering the respondents’ position.  He said:

    “So far as the plaintiffs are concerned, they are still both young.  They have their lives before them and are both in appropriate employment.  They have a good earning capacity.  Steven is earning more than Nicole at the moment, but he has substantial liabilities which he has recently undertaken.  Importantly, of course, each of the plaintiffs will receive from the Rothschild Asset Trust the sum of some $22,000.  In my view, it is appropriate that they have a legacy to provide for some advancement in life.

    Bearing in mind the legacy which I propose, which is $80,000 for each plaintiff, there will still be substantial funds available for the defendant over and above the other assets which will pass to her, as will the house, the car, the funds she receives from Rothschild and the investment she has from the superannuation.”

    APPEAL

1. The appellant submits that the awards were excessive.  Before this Court can interfere with an award it is necessary that the appellant show that the Master made some error in the exercise of his discretion or that the result reached was such that the Court may infer that in some way there has been a failure properly to exercise the discretion vested in him;  House v The King (1936) 55 CLR 499 at 505.

2. I think the Master accurately described the appellant as the testator’s life partner over his last sixteen years.  She supported and cared for him, a factor he undoubtedly recognised when he  made his will in her favour on 31 January 1989.  Some aspects of the relationship are important and it seems to me, with due respect, that the Master did not give them the attention they deserved.  The appellant said that since 1983 she carried out the usual home-maker duties.  She cooked meals, bought the testator’s clothes, arranged social functions, bought gifts for his family, entertained his and their colleagues, maintained homes in which they lived either together or separately and purchased household effects. 

3. The relationship “was not always tranquil”, one can infer from what the appellant says, because of his drinking problem.  But from December 1982 the deceased paid for the whole of their living expenses and gave the appellant $800 per month.  She says they lived well.  They had credit accounts at local stores and she was a signatory to the company cheque book.  In 1984, she accompanied the testator when he went to Dallas on business.  She said they enjoyed an affluent lifestyle.  The testator worked and she shopped and travelled.  They had credit cards to most of the department stores and a joint cheque account into which his salary was paid.  When they returned to Australia on 25 April 1985, the testator upgraded their American Express cards to gold cards, gave the appellant $1,000 per month and paid for their living expenses. 

4. In 1985 the testator moved out of Neutral Bay to live in Cremorne.  However they continued to see each other and spoke on a daily basis.  They shared a motor vehicle and the testator continued to pay rents and utilities for both properties.  He continued to give the appellant $1,000 per month and allowed her to use the credit cards and store accounts without reference to him.  In 1987 the testator attended Alcoholics Anonymous and resumed living with the appellant at Neutral Bay.  In February 1988 he moved out again.  In March 1988 they went on a three week holiday to the Maldives. 

5. In April 1988 the testator was admitted to the Sanatorium Hospital in Wahroonga where he underwent a triple bypass operation on 21 April.  He spent almost four weeks in hospital.  During that time the appellant cancelled the lease on his apartment and moved his belongings back to Neutral Bay.  Upon his discharge from the hospital, he returned to live with the appellant at Neutral Bay.  He was very ill for two months and needed constant care.  The appellant cared for him on a daily basis.  After he returned to work and resumed his former life, he moved out of Neutral Bay to a serviced apartment in Artarmon.  He maintained a room there until he purchased the Newport property in 1990.  He continued to pay the rent and utilities plus HCF and credit cards as well as $1,000 a month.  Frequently they swapped cars. 

6. There were long discussions between them before the purchase of the property at Newport.  The appellant said that the testator was well aware of the age difference between them and his limited life expectancy.  He said that he had been told he had only four or five years to live.  He said it was important that the appellant should own a property.  They looked at a number but found none upon which they both agreed.  When Newport was purchased the house needed work.  The testator regarded it as a way of using his spare time and money thereby reducing the opportunity for drinking.  He said the appellant would be able to indulge her passion for gardening.  Before the Newport property was purchased, the testator said to the appellant:

   “It makes more sense financially to purchase the property in my name only.  I have borrowed the maximum and have appropriate mortgage insurance.  You won’t be stuck with the mortgage payments.  I’ve taken advice from financial planners.  If it worries you we will put the property in both names, but financially it is a better decision to put the property in my name.”

7. The appellant encouraged him to put Newport in his name only, believing he needed to own the property in his own name to encourage his sobriety.  The testator told various people who came to Newport that the appellant was the owner of Newport and he was her tenant.  The appellant delayed moving to Newport to give her an opportunity to observe his new bout of sobriety.  She had been granted a disability pension and suggested he put her allowance towards the mortgage repayments on Newport.  After consultation with the Department of Social Security he continued to pay rent for Neutral Bay, HCF and credit cards.  He continued to give the appellant a monthly cheque for $1,000 but she did not cash them because, as she said in her oral evidence, she felt it was more important that the money go towards the mortgage.

8. In 1990 when the testator was in Paris on business he had a stroke.  The appellant arranged for his return and, when he returned, moved him into Neutral Bay until she was satisfied that his health was good enough for him to be left unattended.  He then returned to live at Newport.  She says that whenever the testator was ill she would keep him at Neutral Bay as it was closer to the hospitals and his doctor.  She spoke to the testator at his office on most days.  If he did not turn up for work or his behaviour was inappropriate, his colleagues would ring her.  In December 1993 he was convicted for driving under the influence of alcohol and lost his licence for six months.  He then arranged for lifts to work and used taxis which, in the words of the appellant, “removed all discipline over his drinking.”  The appellant shopped for grocery items for Newport.  She kept his car at Neutral Bay. 

9. After not visiting Newport for several months she saw it in December 1993 when they bought a new washing machine.  The house was in need of repair.  They had money in the bank so the appellant started work there in January 1994.  She contracted the builder, put on a new roof, replaced walls and ceilings in the office, bathroom and laundry, repaired termite damage, cleared the overgrowth from the garden and removed approximately eight tonnes of rubbish.  She paid the contractors; bills with the testator’s money.  She spent between $10,000 to $15,000 during 1994 on repairs and renovations of Newport. 

10. In June 1994 the deceased’s employment was terminated.  At that time he had a salary in excess of $240,000 per annum.  When he lost his job they reduced their expenses, by amongst other things, cancelling their American Express Cards, HCF and the builder.  The appellant modified the renovation plans.  They undertook most of the work themselves.  That included removing wallpaper, painting, clearing the land, paving and landscaping.  The appellant drove to Newport on most days.  She says that she would use a key-card to the testator’s account at the Advance Bank for cash and an NAB Master Card for credit purchases.  She used her pension for her own living expenses and the testator’s money for Newport.  She managed the testator’s affairs and gave him an allowance.  She tried to keep the testator busy and motivated and spoke to him every day.  She says:

    “I would phone him early in the morning as a wake up call and suggest tasks for the day.  If we were not visiting each other we would usually speak again in the afternoon.  I purchased an answering machine for Newport and put a message on redirecting callers to my number should he not answer.  The computer was at Newport and the fax at Neutral Bay so he would commute between both properties.”

11. In November 1995 the testator had a severe angina attack while they were on an outing.  She took him Royal North Shore Hospital where he underwent another angiogram.  One of his coronary artery grafts was blocked and the other two had build-ups appearing.  He spent one week in hospital. 

12. Over the next year and a half the testator’s health deteriorated.  He had severe claudication and could not walk very fast.  He was coughing constantly, short of breath and his blood pressure was dangerously high.  His medication eased the pain but he did not modify his lifestyle. He became more and more dependent on the appellant.  She tried to keep him active and well-fed.  She continued to work on the house at Newport.  They were short of money.  They saw each other three to four days per week. 

13. In May 1997 she went to Adelaide in the testator’s car.  The testator did not accompany her and maintained Neutral Bay and Newport while she was away.  They spoke to each other everyday.  He told her he had a cold.  She returned home and he died in his sleep of a heart attack in June 1997.

14. The appellant said:

    “I have been financially supported by the deceased since 1982.  I’ve considered myself primarily a homemaker since that time.  We were committed life partners and felt that maintaining separate homes enhanced our relationship.  We were each emotionally dependent on the other.  We each kept clothing, toiletries and personal items in both houses. 

    Prior to being granted a disability pension in 1990 I supplemented our income minimally with some casual work as an office temporary and in 1986 - 1989 I worked as a freelance stylist for several film companies.” 

15. I have set out in a good deal more detail than the Master did the appellant’s account of her relationship with the testator.  None of this was challenged.  It leads me to the conclusion that the claim on the testator’s estate that the appellant had was the same as the claim she would have had if she had been married to him.  It is a claim of a high order not to be satisfied by an amount which is no more than a bare subsistence and it is a claim which, in my respectful opinion, must be appropriately met out of the estate before any claim by the respondents be considered.  The testator had been an astute businessman and there is nothing to suggest that, in making the will he did, he did other than recognise appropriately the claim that the appellant had upon him.  Quite simply, he depended on her for support as she depended on him.  Dr Fisher, who had been her doctor since 1976, said in his report, as I have quoted, “John Allen desperately needed the caring of Susan Blackmore.  Without her he would have died earlier.”  There is no reason to doubt this opinion.

16. The appellant has a fortnightly pension at $274.50.  Her life expectancy is 34 years.  The testator regarded an appropriate allowance for her as $1000 a month in addition to outgoings.  He also, by means of credit cards and otherwise, gave her the security of being able to meet unexpected contingencies. 

17. The respondents are both young, healthy and self sufficient.  They were not dependent in their adult life on the testator nor did they contribute in any way to his fortune.  I have set out the earnings, assets and liabilities of both.  Each has benefited by the payment to them of $22,333 from the Rothschild Trust Fund.  Section 9(2) of the Act required the Master as the High Court pointed out in Singer v Berghouse (1994) 181 CLR 201 at 208 to be satisfied, before an order could be made in favour of a respondent, that that respondent had been left without adequate provision for his or her proper maintenance, education and advancement in life.

18. I have quoted those parts of the reasons for judgement where the Master said, it seems to me correctly, that there was no need for maintenance or education.  What was sought was something by way of advancement in life.  The Master said of Nicole that she had some need “perhaps” to meet a debt which she had on the car and some other provision by way of a sum for advancement in life.  He referred to Steven’s rather substantial joint liabilities with his partner and his own individual liabilities.  The Master noted that it was not suggested that Steven and his partner were not adequately making-do.  The Master acknowledged that both respondents were young and in appropriate employment with good earning capacity.  He noted the receipt from the Rothschild Fund.  His reasons for the award he made is, with due respect, difficult to understand.  He said only “In my view, it is appropriate that they have a legacy to provide for some advancement in life.”  No reason is given for the legacy of $80,000 beyond saying “there will still be substantial funds available for [the appellant] over and above the other assets which will pass to her, as will the house, the car, the fund she receives from Rothschild and the investment she has from the superannuation.”

19. It is not entirely clear how these “substantial funds” should be calculated.  However, in broad terms counsel for the parties agreed that if the orders stand, the appellant would receive the house and the motor vehicle and money and assets to a value of approximately $240,000 to $250,000 without bringing into account the costs of this appeal.  Even if the Master was satisfied that this sum was sufficient to provide appropriately for the appellant out of the testator’s estate, I do not think that it is correct simply to divide the balance between the respondents.  In my opinion, an award of $80,000 to Nicole was clearly excessive.  While I am inclined to think that Steven had a greater claim than Nicole I am satisfied that the amount awarded was also excessive in his case.  With the death of the testator each received an amount of $22,333 from a fund considered part of his estate.  If it were appropriate to award anything more than that on account of advancement in life, it would have to be a small amount. 

20. As the Master recognised, a Court dealing with applications under the Family Provision Act has no charter simply to redivide the estate in some way which appears to be fairer. The charter is no more than, in all the circumstances and taking account of competing claims, to make adequate provision for the proper maintenance, education or advancement in life of the eligible person.

21. However, in my opinion, if the orders made were to stand, the amount left in the estate for the benefit of the appellant would be clearly far too low.  I repeat that the appellant is comparatively young, 44 at the date of the hearing and now 45.  Her life expectancy is approximately 34 years.  Her health is not good.  She requires continuing treatment and will do so possibly for the rest of her life.  The amount left over would be barely sufficient, properly invested, to assure her of the $1,000 a month the testator thought appropriate.  There are contingencies to be brought into account.  Her health may worsen.  She may not survive for the full period of 34 years.  She may remarry.  However, I am not persuaded that the Master was correct in saying that there were substantial funds available to meet what should be her appropriate entitlement out of the estate.  It could not be suggested that her claim was not the greater one. 

22. In my opinion, the awards of $80,000 were excessive.  The amount itself was well beyond what was appropriate in the circumstance and indicates error.  Accordingly, I think that the order for the payment to the respondents of legacies of $80,000 should be set aside.

    ADEQUATE PROVISION

23. It therefore falls upon this Court to decide what, if any, orders should be made in favour of the respondents.  Nicole maintained but slight contact with the testator.  Her debt in respect of her car had no doubt been satisfied by her receipt of the $22,333.  I have great difficulty in seeing how she has made out any claim on the estate beyond this.  Even that, in the circumstances, seems to me of doubtful validity.  It is interesting to compare the evidence placed before the Court in McCosker v McCosker (1957) 97 CLR 566 and set out in the majority judgment of Dixon CJ and Williams J at 572 and following. In the present case we are asked, by contrast, as no doubt Master Macready was asked, to pull a figure out of the air. At most and with some reluctance I have decided that that figure for advancement in life should be $20,000. In coming to this conclusion, I have in mind that the appellant did not make any attack upon the entitlement of the respondents to something, that Steven had given evidence of a continuing indebtedness which gives greater ground for the making of an order and that the Master considered that the respondents should be treated equally. In any event, in my opinion, any order greater than $20,000 in favour of the two respondents and particularly in light of the additional costs of this appeal would intrude into what I regard as the minimum adequate provision for the appellant’s proper maintenance. Accordingly, I propose the following orders:

    1.       Appealed allowed.

    2.Set aside Master Macready’s order that each plaintiff receive a legacy of $80,000 and in lieu thereof order that each plaintiff receive a legacy of $20,000.

    3.Confirm the Master’s order as to costs.

    4.The respondents to pay the costs of this appeal but to have a certificate under the Suitors’ FundAct 1951 if so qualified.

    5.To the extent to which the appellant’s costs of the appeal exceed the amount recoverable from the respondents they should be paid or retained on an indemnity basis out of the estate.

24. FOSTER AJA:  I agree with Sheller JA.

******

LAST UPDATED:    04/08/2000