Borham v Montague

[2006] NSWSC 1289

CITATION:	Borham v Montague [2006] NSWSC 1289
HEARING DATE(S):	27/11/06, 28/11/06
JUDGMENT DATE :	28 November 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	11/28/2006
CATCHWORDS:	Family Provision. Application by second wife. Provision for maintenance granted. Provision of fee simple in residence refused.
PARTIES:	Mavis Olive Borham v William Errol Montague (Estate of Frank Anthony Borham & anor)
FILE NUMBER(S):	SC 6478/2004
COUNSEL:	Mr R Wilkinson for plaintiff Miss S Norton SC and Miss A Healey for defendant
SOLICITORS:	Harris Wheeler for plaintiff Stacks Taree for defendant
LOWER COURT JURISDICTION:	Compensation Court

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 28 NOVEMBER 2006

6478/04 - MAVIS OLIVE BORHAM v WILLIAM ERROL MONTAGUE - ESTATE OF FRANK ANTHONY BORHAM and ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Frank Anthony Borham who died on 12 July 2003 at the age of 72 years. He was survived by his widow, the plaintiff, his second wife and his six children by his first marriage. The plaintiff and the deceased had no children of their relationship.

The will of the deceased

2 The deceased made his will on 19 June 2003, shortly before his death. In paragraph 4 of that will he gave an option to his son, Philip, to purchase his dairy farm, subject to various purchase conditions. Clause 5 of the will dealt with his residency at 33 Kolodong Road, Taree in which he provided in a sense essentially for a right of residence for the plaintiff, his widow. Clause 5 of the will is in the following terms:

“I direct my Trustees, concerning my property at 33 Kolodong Road Taree (hereinafter referred to as ‘the home’) as follows:
(a) my wife Mavis Olive Borham may reside in the home for as long as she wishes provided she pays the rates and taxes levied on the home, the premiums on any insurance policies taken out by my Trustees on the home and keeps it in repair to the satisfaction of all of my Trustees.
(b) Until my said wife has ceased to live in the home permanently or to comply with the conditions of her right of occupation, it shall not be sold without her consent.
(c) At the written request of my said wife, my Trustees shall sell the home and buy another residence or interest in a retirement village to which the same provisions as those expressed in this clause shall apply.
(d) Any cash balance arising from the sale and purchase shall form part of the residue of my estate and any deficit shall be met by my said wife and any costs whatsoever incurred in the sale and purchase shall also be met from the sale proceeds of the home.
(e) Once my said wife has either ceased to live permanently in the home, or in any new residence provided in substitution therefore, or dies, or remarries, or enters into a de facto husband and wife relationship, then the home, new residence or interest shall forthwith be sold by my Trustees and the proceeds of sale thereafter shall be divided equally among my children Philip Francis Borham, Peter John Borham, Gary Richard Borham, Carmel Mary Hurrell, Marie Bernadette Eggins and Terese Wallace.”

3 In clause 6 he gave his furniture and chattels to his wife and in clause 7 he gave his investments to his son and that was in the sum of $100,000. In clauses 8 and 9 he gave various personal bequests of items and chattels amongst his children. In clauses 10 and 11 he gave any accumulated income, and the residue of his estate, to be shared between his widow and six children equally. In other words in one-seventh shares.

Assets in the estate

4 The estate has now been realised and consists of cash. The amounts are:

The house at 33 Kolodong Road, Taree $450,000
The amount due from the sale of Taree $551,545
Investments $100,000
Interest $ 89,733
Total $1,191,279

5 There has been a claim by Gary Borham and that has been settled with the payment to him of an additional $10,000 plus his costs. This brings the balance of the estate down to $1,151,279.

6 The plaintiff’s costs to date are $37,000 and the defendants’ costs are $89,465. This brings the net estate down to $1,024,814.

Family history

7 The deceased was born on 26 September 1927 and the plaintiff, who is now aged 70 years, was born on 9 July 1936. The deceased first married in July 1954 and had six children by his first wife. Philip was born on 28 April 1955, Peter was born on 9 May 1956, Gary was born on 10 June 1957, Carmel on 29 October 1959, Marie on 29 December 1961 and Anne on 14 June 1967.

8 The plaintiff herself has three children, Julie born on 1 November 1958, Debbie on to April 1962 and Janelle on 9 April 1964.

9 The deceased and his first wife originally purchased a dairy farm at Comboyne in 1968 and they purchased a property at Dumaresque Island in 1977 but that unfortunately was flooded and was sold and a house at Cundletown was purchased.

10 In 1980 the plaintiff’s first husband, Cecil Harwood, died. At that stage he had a half share in a property at Wang Wauk and that share was transferred to the plaintiff. I will come back to the details of what happened to that later.

11 The deceased first wife, Alma, died in 1983. Shortly thereafter the deceased sold the Cundletown property and bought the property and Taree in which he subsequently resided. He built a house on the property and moved in there once the house was completed. At that stage his son Philip took over the Taree farm at Comboyne and operated it thereafter.

12 The deceased and the plaintiff were married on 23 February 1991. Mavis, the plaintiff, still held her property which she had and in which she lived separate from the property at Wang Wauk. She sold that for $81,000 and invested the sum of $76,000 with Stacks, solicitors, which company she retained during the course of the marriage.

13 It was in mid-2000 the deceased was diagnosed with cancer. He had needed some help with matters and from that time on his care mainly fell to the plaintiff. As I have said, he made his will on 19 June 2003 and died in the July.

14 Events overtook the provision for Philip to purchase the dairy farm because he had in fact purchased before the date of death in accordance with the arrangement in the will. Probate was obtained in September 2003 and, on 13 July 2004, the plaintiff transferred her half share in the country property at Wang Wauk that she owned with her brother-in-law to her three daughters and made a gift of it to them. In that month she also withdrew $55,000 from her investment to purchase the annuity. These proceedings were commenced on 30 November 2004 within time.

Eligibility

15 The plaintiff clearly is an eligible person, being the wife of the deceased at the date of death. In applications under the Family Provision Act the High Court in Singer V Berghouse (1994) 181 CLR 201 has set out the two-stage approach Court must take. At page 209 it said:

“The final 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’ etc were explained in Bosch V Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for the assessment of whether the provision (if any) made was inadequate, or 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.
The determination of the second stage, should it arise, involves a similar consideration. 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 have refused 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 Leeder 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"

The plaintiff’s situation in life

16 The plaintiff is single, aged 70, and she has no dependants. Her three children are all self-supporting. On the life tables her life expectancy is 17 years. So far as her health is concerned, she has shoulder pain for which she undergoes physiotherapy. She has a problem with her bladder, has had cataracts removed from her eyes. She suffers from arthritis but that is not a disability.

17 As far as her assets are concerned, she has a car and a trailer worth $9,000, investments of about $89,000 and some shares worth $2221. Her house contents, although she values them at $1000, are insured for a sum greater than that. She also has some jewellery but she has no liabilities.

18 Her current income comes from a pension and an annuity and she has a small amount of interest and dividends. At the present time that income is $370 per week but it will further reduce in 2019 because at that stage there will be some $55 per week from the annuity which will no longer be payable and her income will diminish by that amount. She has expenses for food and other items of $470 per week and at the moment that is a shortfall of $100 a week, which is likely to grow in 2019.

19 The other interest which she has, of course, is her interest in the residue of the estate to which she is presently entitled in the sum of $67,259.

20 The question which often arises is a matter of whether there have been contributions to the estate by the plaintiff. She at the commencement of the marriage had her own property, which she sold and which she retained and still had those funds at the date of death of the deceased to a large extent. It seems that during the period of the marriage the largest contribution to her expenses came from the rent which the deceased received from the dairy in the sum of $600 a week. The home, of course, which I dealt with earlier, was provided by the deceased before his marriage to the plaintiff.

21 There were contributions by the plaintiff to the property. In paragraph 16 of her account she talks of using her moneys to pay for re-grouting the kitchen and bathroom; front fence repairs; re-turfing and landscaping the garden; a garden irrigation system, paths; shed edging; steps; and installation of a security system.

22 She does not quantify these amounts but they are not substantial amounts from the description of them. It is also clear there are two amounts which she paid into the joint account from the fund of approximately $7,250.

23 The question of the relationship between the plaintiff and the deceased is one which needs to be looked at. Quite often people have different views as to how people get along. In this case it is plain that the deceased and the plaintiff lived together for the whole of the 12 years. There were no separations and although there were complaints from time to time by the deceased it seems that the plaintiff and the deceased did have a life together which they enjoyed. Before they met the deceased was extremely lonely and he appreciated the relationship which he had with the plaintiff. They travelled from time to time and talked of their travels to the children when they came back.

24 Unfortunately, as often happens in these situations, the second wife did not probably get along as well with the children of the first marriage, but that is not unusual stop there is nothing in the circumstances of the relationship between the plaintiff and the deceased that would indicate in any way that I should decrease any claim that the plaintiff should have upon the deceased's bounty.

25 It is also necessary to consider the situation in life of those having a claim on the bounty of the deceased. In this situation these are, of course, the six children of the deceased. I turn to each of those in turn.

Philip Francis Borham

26 Philip in is 51 years of age, he is presently divorced and has two children. He is a dairy farmer. He, of course, now owns the dairy which the deceased had in which was purchased for a price of $850,000 after allowances in 2003. His stock and vehicles are valued at $293,000. He has $250,000 of shares in Dairy Farmers. His present outstanding mortgage is in the sum of $670,000 and his assets obviously have increased since those valuations since he estimates the dairy is now worth some $1.3 million. His income was $25,271 per annum and his present taxable income at the moment is somewhere in the order of $30,000.

27 Although there is no express evidence of the relationship between the deceased and his children, there is no evidence to suggest that they did not have other than the ordinary relationship with the deceased. They continued to see him, although in the years after he re-married, sometimes due to pressures of distance, they did not see him as often as they may have earlier on in his life. However, plainly all the children had a reasonable relationship with the deceased and they looked to him as a trustworthy person and as a father.

Peter John Borham

28 Peter is 50 years of age. He has four children who are over the age of 18 years and two of them live with him and are particularly dependent upon him. All except one is working and that one is working part-time. He only has a few items of property totalling some $3,700 and some shares worth $1,087. His current income is $576 net per week and his expenses are $425.

Gary Richard Borham

29 Gary, is 48 years of age, single and has one child. He has a motor vehicle worth $1,500 and no other assets other than, like his siblings, an interest in the estate which he may receive. He is on a New Start income of $215 per week and he has child support expenses. Plainly he has little in terms of assets and income at this stage.

Carmel Mary Hurrell

30 Carmel is 46 years of age, married and has three adult children. Those children do not live at home. She has the property at Koocumbat Lane and her half share is worth some $300,000. She has stock and vehicles worth $105,500, shares of some $65,000 a she and her husband are also dairy farmers. They have a loan of $44,822. Her income from her other employment is $538 net per week and her husband's income is $1,160 per week. They have the usual expenses.

Marie Bernadette Eggins

31 Marie is 44 years of age and has two children. Her husband runs a lawn mowing business. They have a house which is worth $180,000 and they have a small number of shares and a motor vehicle of small value. Her income is approximately $340 per week net and her husband, who runs the motor mowing business as I have said, earns $1,436 per annum.

Anne Terese Wallace

32 Anne is 39 years of age and has two dependent children. Her present position is a pastoral administrator in a church body. She and her husband have a home worth $400,000, a motor vehicle and small savings and a load of some $120,000 on the house. They owe Centre Link $20,000. Her income per week is $402 and her husband as a Pastor earns $1,420.

Discussion

33 The plaintiff in this application has sought provision from the estate in a number of different areas. First, she seeks a sum of $210,000 as a fund to supplement her income deficiencies. She seeks the sum of $50,000 for contingencies, and she also seeks to obtain a fee simple in the house in which she has lived and for which she has a life estate. There is also in her affidavit evidence of claims by her for various household items, including the renewal of beds and other items. It is fair to say her existing cash assets will enable her to meet those sorts of expenses.

34 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of the standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

“Where the marriage of the deceased and his widow has been long and harmonious, where the widow has loyally supported a husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worries; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

35 There have recently been reminders about the limited use of such formulations. In Marshall v Carruthers, NSWCA Young JA said:

“73. It must be remembered that Powell J put his proposition as a ‘broad general rule’. However, there is in fact, no ‘standard form of spouse’ to which one can just apply the proposition as a rule of thumb.
74. Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broader general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th-century show that as far as widowers were concerned, the proposition was quite untrue.
75. I also take this opportunity to reject Mr Ellison's submission that a person who has a claim as a class (a) eligible person ipso facto has a stronger claim on a person who comes under class (b). Indeed, in many cases, such as where there are infant children, this may not be so.”

36 Palmer JA concurred in these sentiments.

37 The matter was again dealt with in more detail in Bladwell v Davis & Anor (2004) NSWCA 170. In that case Bryson JA, with whom Ipp JA concurred on this aspect, said:

“There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts, vary widely and in truth are unique to each particular case. ‘Widow takes all’ is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under section 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned.

13. Observations on the claims of widows were made by Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 in these terms:
‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.’
These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However, they are frequently, almost universally, cited in applications where provisions for widows are under consideration.
14. In Golosky v Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the Will beneficiaries whose interests were affected were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring ) ordered further provision for the widow, and Kirby P. referred to Luciano v Rosenblum briefly for comparison, but also said:
‘Matters such as these rule out an inflexible rule that every spouse or every widow was entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an “able bodied son” was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this state. See [ Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575F], 580F; Cf Anderson v Teboneras and anor [1990] VR527. So should inflexible rules about spousal provision.’
In Hertzberg v Hertzberg [2003] NSWCA 311 provision ordered by acting Master Berecry for a widow, second wife of the testator, out of a large estate was confirmed by the Court of Appeal. There was no competing claim or circumstance of need of any Will beneficiary. McColl JA said at [325] in that context of the claim of a widow for the matrimonial home (which in this case the claimant owns):
‘His honour's judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the deceased may well have contemplated he had left the respondent appeared to have altered.’
The statement in the first sentence of this passage should be understood in this context of a claim in a very large estate where there was no competing claim based on need.
16. In Sayer v Sayer [1999] NSWCA 340 at [34] Sheller JA (with whom Davies AJA concurred) accorded primacy to the claim of a widow (of a second marriage) over the claim of a granddaughter, who was an eligible person ‘in the circumstances and in accordance with prevailing community standards.’ this does not in my opinion express any general principle of paramountcy.
17. In Cropley v Cropley [2002] NSWSC 349 at 56 Barrett J said:

‘When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrative requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow's claim to maintenance out of the estate of her deceased husband is a claim which is “paramount” and ”of high order” is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows:
“In my opinion, the question is whether [the grandchild] has satisfied the Court that in the circumstances, and in accordance with prevailing community standards ( Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46), sufficient in the estate to provide for the widows proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her.”
This was accepted as an accurate statement of the law by Palmer J. in Latimore v Latimore (2003) NSWSC 364 at [59]. At [57] Barrett J proceeded to approach the application according to the two-stage approach described in Singer v Berghouse (1994) 181 CLR 201.
18. In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstances of each case of section 7, and the approach established by Singer v Berghouse. Preconceptions and predispositions are unlikely to be the source of inadequate consideration of the process required by the Family Provision Act 1982.
19. In the application of the test in section 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widow’s general primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse , in full and with reference to the instant facts. Defeat of the opponent's claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person concerned can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.”

38 That usefully sets out the fact that there is no primacy to be attached to widows’ claims.

39 In this case I am dealing with the plaintiff’s claim in circumstances where they had a 12 year marriage. They did not have children and it was a second marriage for both of them. The deceased's children had all left home by the time the marriage commenced. Apart from some minor matter the plaintiff has not contributed to the assets in the estate. Plainly, she should have accommodation of some type while she can still live in the house. However, in the circumstances of this case the question is whether it can afford the removal of $450,000 and whatever else is needed for the plaintiffs support.

40 Apart from Philip all the children are not well off. Some have no assets and even Philip has a large mortgage to support. All of them would benefit in terms of their lifestyle from funds received from the estate. There are at least five, if not six, needy children who have to share what funds are left over if provision is made for the plaintiff.

41 There is a question which came up in evidence as to the plaintiff's disposition of her property at Wang Wauk. It is apparent that in her husband’s will he gave all of his assets to his wife, in the words of the will:

“To be hers absolutely for her use and benefit and for the care and maintenance of our children.”

42 The plaintiff, of course, treated the residence in which she resided in with her husband as hers under the will and she seems to be of the view in affidavits, and in cross-examination, that the property at Wang Wauk, which is of some hundreds of acres, was in not in fact held by her but was held for her children. The property was held by her as tenant in common with her brother-in-law and he is still occupying that property and probably there is no reason why she would wish to sell it or force a sale of it. What happened occurred after these proceedings commenced. She then transferred the property by way of gift to her children.

43 The circumstances in which that happened certainly excite some speculation as to what were her motives. Although she was cross-examined at some length about whether it was appropriate for her to hold the view which she held, I am not satisfied that she did it deliberately in order to denude herself of assets so she could advance her claim in this court. It seems she believed in her mind it was held for her children and that was one of the reasons for the transfer.

44 Plainly there is a need for the plaintiff to have some additional income. Simply looking at the shortfall of $100 a week in respect of the life year expectancy the multiplier is 697.3 on the 3% tables. That would translate into a capital sum to provide for that now in the sum of $69,730. That is slightly more than she would be entitled to under the will of the deceased by virtue of her interest in the residue and in the estate.

45 However, in terms of an estate of this size, before one gets to the question of the life estate in property, plainly she needs quite a reasonable sum for contingencies. In those circumstances I think although the deceased and endeavoured to be fair and clearly gave a lot of thought to the decision which he made for his will, there has been a demonstration that there is not adequate provision under the will. The present funds which the plaintiff has are not sufficient to keep maintaining the home, do the necessary repairs and provide for the future.

46 The question of what is an appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a long-standing de facto partner has been dealt with in a number of cases.

47 In the 1970s and 1980s there are a number of decisions of single judges of this Court where they have held that a life interest with particular attributes was appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd, Holland j 18 December 1979; Banks v Hourigan, Waddell CJ in Eq, 2 March 1989; Cameron v Hills, Needham J, 26 October 1989). This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 Mason J said:

“A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in the position in which she could benefit her relatives from the proceeds of the legacy. As has been pointed out in Elliott v Elliott that statement was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased.”

48 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Warladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was one of the majority in White v Barron at pp 438-440, went to some length to point out that the jurisdiction was one which should not be unduly confined by Judge-made rules of purportedly general application. By the late 1980s other Judges in this Division were taking a slightly different view. For instance, in Court v Hunt 14 September 1987, unreported, Young J said:

“Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one Judges the appellants in these sorts of proceedings against that background knowledge.”

49 His Honour went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have that to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution.

50 After talking about the evidence necessary, his Honour went on to say:

“In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a Court to alter a life estate to a more flexible non-capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper division is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. She also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow.”

51 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky, 5 October 1993, unreported, the Court summarised the proper provisions for widows (and thus the plaintiff in these proceedings) in the following terms:

“In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:
(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing rights of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth, v Scales (1962) 107 CLR 9, 19; White v Barron & Anor, above 458 ; Hunter, above 576.
(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is adequate for that person’s proper maintenance and advancement in life. See Heyward v Fisher, Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.
(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it has been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; See Luciano (above) 69-70.
(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal pre-supposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984, per Hutley JA.
(e) Considering what is ‘proper’ and by inference what is ‘improper’ as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate, and of any relevant dispositions which might have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or the welfare of the deceased. See Re Fullop (deceased) (1987) 8 NSWLR 679 (SC): Churton v Christian & Ors (1988) 13 NSWLR 241 (CA) 252.”

52 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott, unreported, 29 April 1986, such a type of provision only applies where it can be said that there has been a long and happy marriage and a widow has helped build up the estate of the deceased.

53 In Permanent Trustee v Fraser 36 NSWLR 24 at p. 47, Sheller JA had the following to say:

“Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security.”

54 In Salmon v Blackford, 18 February 1997, the Court of Appeal was dealing with the case where the trial Judge had given the fee simple to the deceased widow. Sheller JA said:

“The Principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widows advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.
The matter that this Court must consider is whether the order that his Honour made was in such terms that could only come to the conclusion that in some way his discretion must have miscarried. It is well established a proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over 11 years of the time of the hearing. If one comes to the conclusion that for her proper maintenance and orders such as the present is appropriate, it seems to me to matter not at all that she has an adopted son on an earlier marriage and that he may be the ultimate beneficiary of her bounty.”

55 This seems to indicate a different approach to that referred to by the High Court in White v Barron.

56 When one stands back and looks at this one of the things one looks at is the marriage of 12 years and there was not a large build-up of assets by the plaintiff. Although they were together for 12 years they seem to have spent their time happily travelling and those things that those who are retired can do. This is a long way from a situation where a plaintiff and the deceased spent the whole of their married life together, raise a family and put their efforts into providing a home for the family.

57 In those circumstances, as the Court said in Luciano v Rosenblum , there is certainly a case for provision of accommodation, proper maintenance and funds for contingencies. In other words the widow should be left comfortable if the estate will allow that to occur.

58 In the present circumstances, although the estate in one sense is large, there are claims by, I think, six children all of whom have needs. The only person who has substantial assets also has a substantial mortgage and obviously a reduction of that in the difficult circumstances of the dairy industry today would no doubt be appreciated by him.

59 I do not think, having regard to the extent of the relationship and the contributions, that this is a case where one necessarily would provide for a fee simple to be transferred to the plaintiff. I think, however, that there are some difficulties with the life estate provision that has been provided. I think that an appropriate accommodation provision for her would be a life estate in the property which should, of course, not be subject to termination on re-marriage or entering into a de facto relationship. There is a provision for repair to the home to the satisfaction of the trustee and I think that provision ought to be just that the property be kept in repair.

60 There is provision for substitution. I have some difficulties in that the costs of such substitution will have to be met by the plaintiff. I think it is perfectly reasonable for there to be substitution of any home as selected by the plaintiff, or any provision for accommodation which requires a bond and those costs be met thereafter.

61 The other provision that I think needs to be considered is that it may well be in some years time the plaintiff ceases to be capable of residing in the home by herself. At that stage there should be provision, in my view, for the home to be sold and for the income to be retained for the benefit of the plaintiff for the remainder of her life. It is often the case that people of that age do need expensive services which are commonly not provided for in nursing homes but are of great benefit to people in their advancing years.

62 Accordingly, in my view it would be, appropriate to those matters I have indicated, to indicate that there should be a life interest.

63 It remains to consider what is the appropriate lump sum provision which ought to be provided for the plaintiff. She will be in the house, or some substitute house, for many years. She seems to be fit and well at the moment and there is no reason to believe she would not enjoy the things she does now, the bowling club and matters of that kind. There are always problems associated with maintenance of houses and it does not need any evidence to show that they are expensive things to day, and things can go wrong with them when they are old. I think she needs a sum to supplement her income, and also to provide for contingencies.

64 On the assumption that she is getting the sum I referred to earlier from the estate I think that the provision of another $75,000 would be appropriate. I think any less provision would not adequately provide for her. Accordingly, that should be expressed on the basis that she will receive a total amount from the estate and the total amount should be reduced by whatever is received on the distribution of the estate.

65 Accordingly, I direct the parties to bring in short minutes. In respect of costs, the plaintiff's costs on a party and party basis and the defendants’ on an indemnity basis should be retained or paid out of the estate. I direct the exhibits be returned. I stand the matter over to 10 am on Friday 2 December 2006 for short minutes.

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