Booth v Brooks
[2018] TASSC 35
•24 July 2018
[2018] TASSC 35
COURT: SUPREME COURT OF TASMANIA
CITATION: Booth v Brooks [2018] TASSC 35
PARTIES: BOOTH, Tanya Louise
v
BROOKS, Frances Eileen
WILSON, David Lindsay
WARE, Noel John
FILE NO: 262/2014
DELIVERED ON: 24 July 2018
DELIVERED AT: Hobart
HEARING DATES: 11 and 13 July 2018
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Children – Adult daughters.
Testator's Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1433]
REPRESENTATION:
Counsel:
Applicant: B McTaggart SC
Respondents: K Read SC
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondents: Ware & Partners
Judgment Number: [2018] TASSC 35
Number of paragraphs: 66
Serial No 35/2018
File No 262/2014
TANYA LOUISE BOOTH v FRANCES EILEEN BROOKS,
DAVID LINDSAY WILSON and NOEL JOHN WARE
REASONS FOR JUDGMENT HOLT AsJ
24 July 2018
A claim for family provision
Darrell Vernon Triffett died on 30 October 2013 aged 70 years. He was survived by his 65 year old partner of about 40 years, being the first respondent, a daughter aged 47 and two sons aged 38 and 30. He left a will dated 18 March 2011. Probate of the will was granted to the respondents on 18 February 2014. By application filed 3 April 2014 the daughter, at the time of the testator's death a disability pensioner unable to support herself, applied for an order pursuant to the Testator's Family Maintenance Act 1912 that such provision as is proper be made for her out of the estate.
The applicant is the child of the testator and her mother is the younger sister of the first respondent. She was born in March 1966 when her mother was 16 years old. The applicant's mother and the testator, then aged 22, were married in February 1966, but they did not live together and the applicant was cared for by her mother's parents in her early childhood. The applicant's mother and the testator divorced and the applicant's mother remarried when the applicant was aged about six and she then lived with her mother and stepfather. The testator commenced his relationship with the first respondent in about 1972 and the couple had two sons together.
The testator left an estate having a value of about $6 million. The estate was comprised of about $1.3 million in real estate assets, about $1.1 million, being cash reserves less liabilities, and about $3.6 million, being the value of the testator's 60% shareholding in the company EA Triffett & Son Pty Ltd. The other 40% of the shareholding in the company was held by the first respondent. The assets of the company included cash totalling about $5 million.
The entirety of the estate was left to the first respondent, who is independently wealthy, provided that she survived the testator for a period of one month. The will went on to provide that in the event that the first respondent did not survive the testator, the estate was to be put in trust for the benefit of the testator's two sons. The first respondent executed a will on the same day that the testator executed his will. Under the will of the first respondent the entirety of her estate was to go to the testator provided he survived her by one month and otherwise the estate is left to be put on trust for the benefit of the two sons.
Counsel for the respondents informed me that the sons of the testator, who work on the farm operated by the testator (until his death) and the first respondent, are aware of the proceedings and do not wish to join with the applicant in making a claim.
The legislation
The applicant, being a child of the testator, is eligible to make a claim under the Act, s 3(1), which is as follows:
"If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
To bring herself within the operation of the provision, the applicant must firstly establish as a matter of fact that she has been "left without adequate provision for (her) proper maintenance and support". This jurisdictional question is to be answered as at the date of death of the testator. Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494; White v Barron [1980] HCA 14, 144 CLR 431. The enquiry is undertaken from the perspective of a wise and just testator. Bosch v Perpetual Trustee Co [1938] AC 463 at 478–479. The testator is assumed to have been aware of all of the relevant circumstances, including reasonably foreseeable eventualities existing at the date of death. Litchfield v Smith [2010] VSC 466 at [26].
In making the appraisal the Court is to "connect the general but value-laden language of the statute to the community standards". Vigolo v Bostin [2005] HCA 11, 221 CLR 191.
In the case of a claim by an adult child, abnegation of parental responsibility during childhood increases the moral obligation of the testator to the child. This point has been strongly made in Campbell v Chabert-McKay [2010] NSWSC 859 and also in Doddridge v Badenach [2011] TASSC 34.
In Campbell, White J said at par [119]:
"The plaintiff had nothing to be grateful for. She had been abandoned by her father aged 10. Apart from paying her school fees and providing maintenance to her mother pursuant to orders made in the Family Law proceedings, and providing her with accommodation in Monaco for a week (during which the plaintiff became distressed at the lack of contact with her father) he did nothing for the plaintiff. The deceased’s abnegation of his parental responsibility increased rather than diminished his moral obligation to make adequate provision for her in his will."
In Doddridge, Evans J, after concluding that "(a) view that at one time found some support in the authorities … that where the basis for an applicant's claim is little more than bear paternity, it should fail" is not sound, said at [42]:
"He simply abandoned his daughter emotionally and physically, and made only one contribution to her maintenance. These are matters for which as between her and him, she bears no responsibility, and he bears full responsibility. Consistent emotional and financial assistance from her father throughout her school years might have given her the confidence and means to pursue and obtain a tertiary qualification. Her involvement in the process of obtaining a tertiary qualification may have expanded her friendship group, raised her horizons and increased her opportunity of meeting a partner with whom to share her life. A tertiary qualification would probably have increased her employability and her earning capacity. It is a melancholy reality that insofar as her father failed to provide for her during her childhood, she was no drain on his resources and thereby assisted him to accumulate his estate. From this standpoint the applicant's claim is more formidable than that of a claimant who was supported to adulthood by a parent, but thereafter became estranged from that parent."
The determination of the jurisdictional question "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 etc. 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". Singer v Berghouse (1994) 181 CLR 201.
By virtue of the Act, s 8A, the Court may also have regard to the testator's reasons for making the dispositions made by his will and for not making provision or further provision for any person. Further, by virtue of the Act, s 8, the Court may refuse an application, regardless of any other features, if the character or conduct of the applicant is disentitling.
Where the discretion is enlivened by a determination that the applicant has been left without adequate provision for his or her proper maintenance and support, the exercise of the discretion will be influenced by similar considerations to those applicable to the first or jurisdictional stage of the enquiry. Singer at 210. "(P)rovision for such maintenance can be made out of the funds of the testator as they stand at the date of the making of the order including any capacity for increase which is then present". White v Barron at 437 per Barwick CJ.
If in the exercise of the discretion the Court determines that provision, or further provision, ought be made for an applicant, the provision which can be made is limited to doing only that which is necessary to satisfy the obligation of the deceased to make adequate provision for the proper maintenance and support of the applicant. "… it was never meant that the court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the court". Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, per Dixon CJ at 19.
As to the extent to which a court might intervene, counsel for the respondents submitted that because of the wording of the Act there is no authority to make provision which would improve an applicant's station in life. He said "The jurisdiction of a court in Tasmania is confined to providing an Applicant with the necessities of life".
The submission is based on the wording of the Act which, like the legislation in Victoria and Queensland, speaks in terms of provision being made for "maintenance and support" as compared to the legislation in the Territories, South Australia and New South Wales, which speaks in terms of provision being made for "maintenance, education or advancement in life".
In considering the submission, the first matter to be observed is that family provision legislation is remedial and so is to be construed to give the most complete remedy which the phraseology permits and is not to be construed in a restricted way which suppresses the ordinary natural meaning of words. Barns v Barns [2003] HCA 9, 214 CLR 169 at [42]–[44].
Consistently with the way in which courts should interpret remedial statutes, in Anderson v Tebonears [1990] VR 527 Ormiston J said at 357:
"From time to time it has been suggested that 'maintenance, education and advancement in life' has a wider scope than the words used in the Victorian Act: see, eg, Kleinig v Neal [1981] 2 NSWLR 532, at 543. I cannot accept this restriction on the meaning of the words 'maintenance and support'. Whether one looks to the earlier New Zealand authorities approved in Bosch's Case and cited in the later High Court decisions or to the decisions of the High Court themselves, there has been a consistent interpretation, regardless of the jurisdiction from which the appeal has come. The word 'support' has been taken to comprehend any kind of provision, other than maintenance, which a testator is under a moral duty to make for a member of the prescribed class of applicants. The emphasis on the word 'advancement' in McCosker v McCosker, at 575 and Blore v Lang, at 128 is readily explicable in the context of the known and relatively restricted meaning of the preceding words 'maintenance (and) education' in the New South Wales Act. The natural meaning of the word 'support' is at least as wide as 'advancement in life', but, even if it were not, the combined expression 'maintenance and support' has been given so consistently wide an interpretation by the High Court that apparent distinctions between the criteria for the exercise of the court's jurisdiction in the various States should be seen as insignificant. An exact interpretation may not have been given to each of the words used in the several Acts, but this is indeed an area of the law in which a purposive interpretation of that legislation has been accepted for many years by the High Court. It follows that, in so far as the plaintiff may have made out some claim that the testator overlooked his moral obligation to make provision for the plaintiffs advancement in life, such a claim can properly be comprehended by the requirement in the Victorian Act for adequate provision for his proper maintenance and support."
Counsel for the respondents submitted that Anderson ought not to be followed in this jurisdiction insofar as it contains the assertion that provision for "advancement in life" is comprehended in the words "maintenance and support".
Counsel for the respondents criticised the reasoning in Anderson for the failure to specifically refer to the High Court decisions which were said to have given the words "maintenance and support" a consistently wide interpretation. The fact, however, is that the words of the statute, regardless of variations between jurisdictions, have always been given a wide meaning. In Vigolo, Gleeson CJ referred to a New Zealand case concerned with the phrase "proper maintenance and support" and said at [11] and [12]:
"For example, at an early stage in the history of the legislation there arose a question whether the object of intervention was limited to providing an applicant only with what was sufficient for basic subsistence, or whether it had a wider scope. Salmond J, in the New Zealand case of Welsh v Mulcock, said:
'[T]he testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation - that officium pietatis, as the Roman lawyers called it - which he owes to his family in respect of the testamentary disposition of his estate, and which is recognized and enforced by the Family Protection Act.'
The 'testamentary duty' which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based."
The respondents' submission that the jurisdiction in Tasmania is confined to providing an applicant with the necessities of life is inconsistent with High Court authority and must be rejected.
I accept that provision for "advancement in life" may in the particular circumstances of some cases permit the making of greater provision than might have been permitted if the Court was confined to matters of "maintenance and support". However, provided the "advancement" which a provision made affords to a successful applicant is encompassed within the ordinary meaning of the word "support" nothing turns on the matter. Paying for the tertiary education of an adult child, paying off the mortgage debt of an adult child or assisting an adult child with funding to start a business venture are examples of making provision which could equally be appropriately described as providing support or assisting advancement.
In deciding whether provision ought be made and if so the amount I will neither confine myself to a consideration of the cost of the bare necessities of life nor go beyond what can be properly described as "support" within the ordinary natural meaning of the word within the phrase "maintenance and support".
The evidence
The matters of fact contained in these reasons were almost entirely the subject of evidence which was not in dispute and so the facts have been set out mostly in narrative form without specific reference to the various witness statements.
The circumstances to be considered
The Act, s 3(1) requires regard to be had "to all the circumstances of the case". As set out in Singer the circumstances to be considered will usually include:
·the applicant's financial position,
·the size and nature of the 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.
Further, the Act, s 8A, permits the Court to have regard to the deceased's reasons for making the dispositions made by his will and the deceased's reasons for not making any provision or further provision for any person.
There is no need for me to consider the Act, s 8, as there has been no assertion on the part of the respondents that the applicant is disentitled by reason of character or conduct.
The applicant's financial position
The applicant attended school at the Glenora District High School until the end of year 10 and thereafter obtained intermittent part-time or casual employment in various jobs. When she was about 20 years old she moved in with her partner whom she married in 1992. In the same year she gave birth to a daughter. The applicant separated from her husband in 1995 and moved into a cottage on her father's property rent free. The applicant maintained a relationship with her former partner and had twin sons by him in 1998. The applicant's father evicted her from the cottage in 2008. The applicant then lived in a women's shelter for about six months before being accommodated in a public housing unit at Glenorchy where she still resides.
Whilst living in the cottage on the testator's property, the applicant had alcohol dependency and mental health related problems. Following eviction from the cottage the applicant's mental health issues worsened. The applicant has not held employment for many years other than being paid for walking dogs for about three hours per week.
In an affidavit, sworn about eight months after the death of the testator, the applicant set out her financial position. She received about $1,160 per fortnight, including an allowance for the care of one of her sons who was living with her and aged 15 years at the time. The payments were made by Centrelink. The only assets of the applicant were a car worth about $2,500 and household effects worth about $2,000.
In a further affidavit sworn in November 2017 the applicant again set out her financial position. By that time her son was an adult and the applicant's Centrelink benefit had been reduced to $877 per fortnight. Her asset position had not materially changed. She had no superannuation and owed about $2,000 on a credit card and about $4,000 for a personal loan.
In short, at about the time of the testator's death the applicant was a long term unemployed 47 year old woman dependent upon public welfare with no assets of substance. Because of her mental health problems and her lack of particular vocational skills she did not have good prospects of improving her position in life.
The size and nature of the estate
The makeup of the testator's $6 million estate has been set out at par 3 of these reasons.
The estate was accumulated through the joint efforts of the testator and the first respondent. The testator, at the time he commenced his relationship with the first respondent, had a log carting business and owned two trucks. By 1983 he had built up the business to a fleet comprising 13 trucks. With a downturn in the logging industry the cartage business ceased and the testator and first respondent focussed their efforts on sheep and cattle farming.
At the time of his death the testator held 9 of 10 issued shares in the company Triffett Holdings Pty Ltd, which was registered in June 1984. The other share was held by the first respondent. The company acquired 220 hectares of land at Ouse in May 1997, which had a government value as at 1 July 2014 of $1.25 million. The company acquired about 2,000 hectares of farming land in the Central Highlands in March 2008 which had a government valuation as at 1 July 2014 of $2.7 million. Shortly after the death of the testator the company acquired 246 hectares of land at Ouse which had a government valuation as at 1 July 2014 of $1.15 million. In the estate inventory no mention is made of the testator's shares in Triffett Holdings Pty Ltd and accordingly I infer that the company's assets were held in trust, rather than beneficially for the shareholders.
Plainly the testator and the first respondent were very successful in their farming enterprise which enabled the testator, even with assets being split with the first respondent and other assets being put in trust, to accumulate in his own name an estate worth a little over $6 million. There is no suggestion that the applicant contributed to the accumulation of the estate. The two sons of the testator, however, have made a contribution as they both work in the family farming enterprise.
The relationship between the applicant and the deceased
The applicant was not brought up by the testator but describes having a good relationship with him during her childhood. The applicant's childhood perception of the relationship appears to have been brighter than the reality. The first respondent said in her affidavit sworn 5 April 2018 at par [24] "During our long relationship the deceased showed very little if any affection towards the Applicant and he did not see much of her when she was growing up".
The testator occasionally provided the applicant with pocket money but the uncontested evidence of the applicant is that besides this and purchasing a second hand car for her 18th birthday the testator provided her with "no direct financial support".
After the applicant had separated from her husband, the testator provided her with rent free accommodation in a cottage on the same parcel of land that contained the testator's family home. This accommodation commenced in 1995 and ended, as did the relationship with the testator, when, through his solicitor, he evicted the applicant from the cottage in 2008 causing her to move to a women's shelter.
The relationship between the deceased and other persons who have legitimate claims upon his bounty
The testator and the first respondent had lived together in a marriage-like relationship for about 40 years. Although wealthy, they did not lead an extravagant lifestyle. They rarely socialised outside the family and did not take regular holidays. Their lives were centred around looking after their two sons during their childhoods and developing their farming enterprise through hard work for their own benefit and for the future benefit of their two sons.
The sons of the testator work on the farm and, consistently with the expectation of the testator, they expect to be the primary beneficiaries under their mother's estate. I infer that they enjoyed a good relationship with the testator.
The testator's reasons for making no provision for the applicant
The testator and the first respondent spent about two hours together with their solicitor when they issued instructions for their wills in March 2011. The solicitor raised the question of making provision in the testator's will for his two sons and the applicant. The solicitor's affidavit states at pars 8 and 9:
"8 The Testator told me that he was positive that his sons Ross and Dallas would not challenge his Will since he believed that they would always be looked after by their mother with whom he had discussed this decision and had indicated to him that on her death her estate would pass to Dallas and Ross.
9 In relation to the Applicant the Testator informed me that he did not wish to make any provision in his Will for her because of the history of his relationship with her and that he [sic] had very little contact with each other since he and her mother separated many years ago. The Testator said that only contact he had with her was when Frances allowed her to live in a cottage on his property at 'Tara' for a few years before he [sic] behavior [sic] had forced him to cease this arrangement. He was reluctant to discuss in any detail with me this behavior [sic] and did say that it caused him, Ms Brooks, Ross and Dallas some aggravation."
Further light is shed on the testator's reasons for not making provision for the applicant in the first respondent's affidavit sworn 10 October 2016 where she said at par 58(f):
"The Applicant had a lifestyle that the Testator and I did not relate to. During her years at the cottage we observed a lot of different men coming and going. The Applicant was also involved in court cases involving her children and her family over custody of the children. One of her sons lived with my sister since he was four weeks old. The Applicant sometimes needed to be hospitalized for substance abuse issues mainly relating to alcohol. I recall Faye asking me to ask the Testator if he would help out with the Applicant by taking her to the doctor at the Royal Hobart and he said 'no' because he didn't want anything to do with her lifestyle because it embarrassed him. He told me that she did nothing to help herself and it was a quality he didn't like in people. We all worked hard for what we had and he told me that the Applicant did nothing to help herself. I went to the hospital with Faye and the Applicant. This happened a couple of times. The second time the Applicant went to hospital Faye rang and asked me to ask the Testator again and I did and he said 'No, I don't want anything to do with it because I am embarrassed."
It is apparent from this evidence that, although the applicant and the testator were on speaking terms prior to the eviction of the applicant from the cottage in 2008, the testator had very little interest in the applicant from her early childhood and very little regard for her in adulthood.
Has the applicant been left without adequate provision for her proper maintenance and support?
The estate is relatively large and, in addition to some real estate, comprises cash assets, including the cash held in the company EA Triffett & Son Pty Ltd in which the testator held a 60% shareholding, totalling about $4 million. The first respondent already had substantial assets of her own and led a modest lifestyle. There were ample available funds to enable some provision to be made for the applicant, whilst still providing well for the first respondent and allowing the family farming operations to continue, to expand and to improve, ultimately for the benefit of the two adult sons.
At the date of death of the testator the applicant had been welfare dependent for some years and had the care of a 15 year old child. She lived in public housing and depended upon the payment of Centrelink benefits for her day-to-day expenses. The financial support which the testator had provided to her during her lifetime was the occasional provision of some pocket money as a child, the provision of a second hand car for her 18th birthday and the provision of rent free accommodation in a cottage on the testator's farm for about 13 years.
The testator had never taken much interest in the applicant and by the time he evicted her from the cottage he regarded her as an embarrassment to him and undeserving of anything which she had not worked for. In particular, undeserving of any share of his estate. On the other hand the testator, who had worked hard with the first respondent to accumulate substantial wealth, thought it proper that the first respondent should take the entirety of his estate with the expectation that she would ultimately make provision in her will for the couple's two sons.
Had the estate not been as large as it is, had the testator provided better support to the applicant during her childhood and formative years to improve her chances of coming up to his standards and had the first respondent been in need of the entirety of the estate for her future maintenance and support, the applicant, being an adult child may not have been able to bring herself within the ambit of the Act s 3(1). But having regard to the features mentioned in Singer and notwithstanding the testator's reasons for excluding her from his will, I am persuaded that the applicant, by reason of being left out of the will, was left without adequate provision for her proper maintenance and support.
The jurisdictional question must be answered in favour of the applicant.
What, if any, provision should be made?
Having concluded that a discretion arises to make an order for provision and having regard to the matters which led me to answer the jurisdictional question in favour of the applicant, I conclude that the applicant should have the benefit of some provision from the estate.
Arriving at the amount of the provision which should be ordered has caused me some difficulty. It is not for a court to re-write a will according to the judge's particular view as to what may be fair. The application is to be assessed from the perspective of a wise and just testator looking, within his means, and having due regard to his other obligations, to provide no more and no less than what according to community standards and the Singer considerations is a sum which, if available, would be adequate to properly accommodate the obligation of providing proper maintenance and support for the applicant.
I have rejected the submission of counsel for the respondents that the Court lacks jurisdiction to order provision beyond that which would provide the applicant with the bare necessities of life.
Counsel for the respondents referred to the provision to an adult daughter $200,000 out of a $4 million estate in Rowley v Bouwmeester [2005] TASSC 34. I do not regard the comparison as useful. Every case is to be determined based upon the circumstances particular to it. In Rowley the applicant was in the process of conducting proceedings against her recently estranged husband for a property settlement under the Family Law Act 1975 (Cth) and any provision to the applicant there may have been to the advantage of the husband in those proceedings. The asset pool to be divided included a house, which was unencumbered or practically unencumbered, in Brighton, an affluent coastal suburb of the City of Melbourne. Further, unlike the applicant in the present case, the applicant there had been openly hostile to the testator during the final stages of his terminal illness.
Counsel for the applicant has provided calculations to the effect that the amount required as a lump sum now, to provide the applicant with a weekly income, payment of medical expenses, domestic assistance and accommodation is about $1.9 million. The calculation has been prepared in much the same way as would be expected where a person suffering permanently disabling injury as a result of the negligence of another claims resultant damages.
The amount of the provision to be awarded under the Act, unlike the situation in a personal injury claim, is to be calculated by reference to factors which often will not readily fit in with actuarial calculation for the purpose of assessing damages where there is a legal right as opposed to a moral obligation The factors include an assessment of what is proper by reference to a wise and just testator aware of the all the circumstances of the case and acting upon prevailing community standards. I do not think that prevailing community standards, even in the case of large estates, contain a requirement that a testator should completely remove the welfare burden of the State for his adult children.
I will not assess the amount of the provision by reference to the calculations provided. The testamentary moral duty of a parent to an estranged child who is welfare dependent because of choices in life which the child has made is not to be equated with what in some circumstances may be the testamentary duty of a wealthy parent of a child who otherwise would be welfare dependent through circumstances beyond the child's control.
In any event, I do not accept the premise that the applicant is permanently disabled from working. She is shown in recent video surveillance footage driving her own car and doing her own shopping. She has friends and regularly goes swimming. She is not incapacitated by reason of physical infirmity. Although her mental health problems make occupational functioning problematic, I cannot exclude the possibility that in future she will be able to obtain some work.
The applicant has always lived modestly and the amount to be ordered will not be such as to do more than incidentally improve the living standards to which she has been accustomed. The amount, however, will be sufficient to relieve the applicant of the fear and uncertainty which would be present if the applicant was left to the political vagaries associated with public spending on housing, healthcare, pensions and aged care.
Having regard to the size of the estate, the applicant can be put in a in a position where she has the security of owning a low maintenance home in the area where she currently lives, a fund to pay for the rates, insurance and the upkeep of the home, money to pay for private health insurance, money for medical services which are not fully funded from the public purse, a little extra income to cover the possibility that pension increases may not keep pace with rises in living expenses, including the cost of electricity and petrol, some provision for aged care later in life and a financial buffer against the vicissitudes of life. This will not impact on the lifestyle or future financial security of the first respondent and will have no effect, or only a negligible effect, on the continuing operations, improvement and expansion of the family farming business. I conclude that such provision would be proper in all the circumstances of the case and it is the provision which I will make.
The evidence of a real estate agent is that the cost of purchasing a three bedroom home in the area in which the applicant lives is about $400,000 and the cost of purchasing a two bedroom unit is about $100,000 less. The real estate agent gave a list of comparative sales in the area between 1 January 2018 and 21 June 2018. Three of the houses in the list were about 130m2 in size and the sale prices were between $370,000 and $380,000. Each of these three houses was more than 60 years old. One house on the list, being a brick veneer house with a colorbond roof sitting on 556m2 of land, constructed in 2010 and having a building size of 162m2 sold in February 2018 for a price of $600,000.
Although the amount of the provision which should be ordered in favour of the applicant will have some beneficial effect on her station in life and her lifestyle, this is a necessary incident of making a provision which will provide security for the applicant's future maintenance and support. In any event, some extra benefit is justifiable on the basis that the applicant may have done better in life had she received more paternal support, affection, encouragement and discipline during her childhood and formative years.
The case does not call for precise mathematical calculation. A wise and just testator in the strong financial position of the testator here would be unlikely to have engaged in such an exercise.
At the date of death the testator's cash reserves, including his share in the cash held by the company EA Triffett & Son Pty Ltd, amounted to about $4 million. In my view an amount of $800,000 is appropriate to accommodate the obligation of the testator to make adequate provision for the proper maintenance and support of the applicant without unduly interfering with the wishes and goals of the testator.
There was no submission that an order for payment of a provision should come with any conditions, restrictions or limitations.
Orders
I make the following orders:
(1)Provision for the applicant is to be made out of the estate by payment to her of the sum of $800,000.
(2)In the event that an application for different costs orders is not made within 21 days, and unless otherwise agreed, the costs of the applicant are to be taxed on a party and party basis and paid out of the estate and the costs of the respondents are to be taxed on a solicitor and client basis and paid out of the estate.
(3) The hearing of the application is certified as being proper for the attendance of counsel.
(4)The respondents are to bring into court the grant of probate and a certified copy of these orders is to be made on the probate of the will.
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