Bramwell v Bramwell

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BRAMWELL v BRAMWELL & ORS
[2022] SASC 12
Judgment of the Honourable Auxiliary Justice Bochner
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO SPOUSE OR PARTNER
Inheritance (Family Provision) Act 1972 (SA); Evidence Act 1929 (SA); Family Law Act 1975 (Cth), referred to.
Lang v Davey [2020] SASC 160; Singer v Berghouse (1994) 181 CLR 201; Carter v Brine [2015] SASC 204; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; Slack v Rogan; Plaffy v Rogan (2013) 85 NSWLR 253; Sgro v Thompson [2017] NSWCA 326; Steinmetz v Shannon & Anor (2019) 368 ALR 161; Luciano v Rosenblum (1985) 2 NSWLR 65, considered.

BRAMWELL v BRAMWELL & ORS
[2022] SASC 12
CIVIL

Donald Gordon Bramwell (“the deceased”) died on 6 December 2018, at the age of 84. His will, dated 5 December 2017, was admitted to probate on 3 July 2019, with his widow, the applicant, and his daughter, the third respondent, appointed executors. I will refer to his widow and his daughter as the applicant and the respondent.
The applicant has brought a claim for further provision from the deceased’s estate, pursuant to the terms of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”). I note that the applicant’s claim was brought outside of the time limit prescribed by the Act; the respondent consents to an extension of time to bring this action. I mention this for completeness.
The estate
At the time of the deceased’s death, his estate comprised:
·A half share in the home of the deceased and the applicant (and in which the applicant still lives), valued at $385,000;
·The refundable accommodation bond from the nursing home in which the deceased lived at the end of his life, in the sum of $459,276.65;
·Furniture and household effects, valued at $7,000;
·Superannuation in the sum of $518,456.92;
·Shares to the value of approximately $1,000; and
·Cash of around $34,000.
The estate had no liabilities; the net estate was in the region of $1,405,000.
The applicant and the deceased owned their home as tenants in common.
In 2016, the deceased completed a Binding Death Benefit Nomination (“BDBN”) in respect of his self-managed superannuation fund, the DG Bramwell & Co Superannuation Fund (“the Super Fund”). In effect, he divided his benefit in half, and directed that half go to the applicant, as a pension, to be paid at the minimum pension rate. The terms of the BDBN prevented the applicant from amending the pension terms to permit commutation of the pension or any increase of the pension drawdown. On the applicant’s death, the residual capital value of the pension stream was to be paid into his estate. I will refer to this portion of the superannuation benefit as the pension stream. He directed that the remaining 50% of his superannuation benefit be paid into his estate.
The will
By his will, the deceased:
·forgave any debts owed to him by the respondent;
·left a number of personal items to the respondent;
·allowed the applicant to have the use of the household furniture and household effects contained in their home for her lifetime, after which they were to go to the respondent;
·directed that any benefit from his superannuation fund which was paid into his estate was to be paid to the respondent;
·gave, following the applicant’s death, four legacies in the sum of $10,000 each, to be paid from the pension stream, with the balance of the pension stream to go to the respondent;
·gave a legacy of $400,000 to the respondent;
·gave a legacy of $60,000 to the applicant;
·gave the applicant a right to reside in the home during her lifetime, on the basis that she pay all rates, taxes, and other outgoings, keep the property in good repair, and keep it appropriately insured. In the event that the applicant wished to live elsewhere, the property was to be sold, and three quarters of the deceased’s share of the proceeds of sale were to be placed in a trust and used for the purpose of providing a residence for the applicant, but only on the basis that resort was only had to the trust once the applicant’s own share of the proceeds of sale was exhausted.
·the residuary estate was to be divided equally between the applicant and the respondent.
The evidence called on behalf of the applicant
The applicant gave the following evidence in support of her case.
The applicant was born in 1943. In 1958, she commenced working for a chartered accountant; it was here that she met the deceased for the first time. While working, she undertook tertiary study, and qualified as an accountant.
In 1965, at the age of 22, the applicant married for the first time. Her husband was killed in an accident less than two years later; at that time, they had resigned their employment with the intention of becoming dairy farmers. After her husband’s death, the applicant returned to work as an accountant at the South Australian Seed Growers Co-operative, and sat her final exams to become a chartered accountant in 1966.
In about 1968, the applicant encountered the deceased again, after not seeing him for some years. He offered her a job at the firm where he was working at that time, which she accepted.
The applicant remarried in 1974. She and her husband had two daughters, and in 1981, she, her husband and children moved to Victor Harbor to run a motor vehicle franchise. She and her husband retained the deceased’s firm to do their tax.
In 1987, the applicant’s marriage came to an end, and shortly thereafter, she and the deceased commenced their relationship. The deceased, by this time, had separated from his first wife.
The applicant and the deceased commenced living together in 1987, first at a house in Gilberton. In early 1988, they bought a house at Wattle Park together, making equal contributions to its purchase. During this time, the applicant’s daughters lived with them; the respondent lived with them intermittently. In January 1989, the applicant and the deceased were married.
Over the course of their marriage, the applicant and the deceased lived in a number of different houses. They moved to the house in which the applicant still lives in about 2008. Each house that they purchased after the house at Wattle Park was funded by the sale of their previous house.
Their social life was a very active one. They both played tennis at the Memorial Drive Tennis Club, and were involved in the running of the club. They enjoyed music, and frequently attended jazz festivals. They enjoyed the theatre and the opera. They both played golf, the applicant taking it up after receiving encouragement from the deceased. They were both active members of sporting, business and social clubs, including the Adelaide Club and the Queen Adelaide Club.
In about 1989, the applicant and the deceased set up their own accounting practice, DG Bramwell & Co. The practice started as a partnership between them, with an equal sharing of profits and losses; the deceased, however, refused to sign a partnership agreement,[1] and after two years, he made the decision to make the applicant a salaried partner. The applicant was not happy with this arrangement. Her evidence in this regard was:
A.Business was better than what he thought it was going to be so he said 'You can just go on a straight share, a straight salary. You will be a salaried partner'.
Q.    Were you happy with that.
A.    Not really but I learnt fairly quickly that that was it.
Q.    Did he explain why you would earn less than him.
A.Well, he said 'You are not putting the hours in that I'm putting in' and I said 'Well, do you want to take over looking after the house and the children and doing the things that I'm doing and I'll come in here' and he just laughed and just said 'That's not on'. He said 'That's what it's going to be'.[2]
[1]    T93.25-34.
[2]    T94.1-12.
The applicant remained working at DG Bramwell & Co until 1997, when she moved to another accounting firm. By that time, she was having difficulty working with the deceased. She returned to work with him, however, when the goods and services tax was introduced, as she knew that this would cause increased pressure to the deceased at work and she wished to assist him to deal with this. Throughout the marriage, the applicant worked as an accountant either full-time or part‑time until her retirement in 2005.
In 2004, DG Bramwell & Co merged with another accounting firm, Shearer & Elliss. Initially, the deceased retained some ownership of the business, but ultimately, he took on the role of consultant, and ceased any ownership of the business. He remained a consultant until about 2014.
During their marriage, the applicant’s salary was paid into an account at the National Australia Bank in the deceased’s name.[3] Once the deceased became a consultant at Shearer & Elliss, he arranged to have his consultancy fees paid into an account in his sole name at Macquarie Bank. None of those fees was paid into a joint account.
[3] T147.14-18.
Prior to their marriage, the deceased set up the Super Fund with both the deceased and the applicant as members; the relevant member benefits were accrued from 1990. The deceased made all of the arrangements for payments into the Super Fund. The applicant says that she was not aware of what was paid in on her account, or the basis on which amounts were paid. She had no input into decision making in respect of the Super Fund.[4] It is clear that, throughout, the deceased paid significantly more into his account than into the applicant’s. His closing balance at the end of each financial year was consistently at least double the applicant’s; some years it was three times as much as hers.[5] Until about 2013, the pension paid to each of them through the Super Fund was paid into a National Australia Bank account solely in the deceased’s name. Approximately five years before his death, he arranged for it to be paid into an account in joint names. The balance in the account in his sole name was not transferred across; it remained in the account solely in his name and the joint account was opened with a zero balance.[6]
[4]    T94.13-17, T142.8-21.
[5]    A21.
[6]    T128.28 – 129.22.
The pensions for each of the deceased and the applicant were paid on a monthly basis. At the end of each financial year, amounts were allocated against their respective member funds according to their individual expenses. Their travel expenses and capital expenses were allocated on a 50/50 basis.
In 2016, the applicant and deceased replaced their cars. Each car was traded in to purchase a vehicle that was easier for the deceased to access. The balance to be paid after the trade-ins came from the Super Fund and was allocated to each of them on a 50/50 basis. The deceased then withdrew the amount of the trade-in of his vehicle from the Super Fund and deposited it in his Macquarie account.[7]
[7] T130.23 – 38.
During their marriage, the applicant and the deceased travelled extensively, initially within Australia, but increasingly overseas in the latter years of their marriage. The cost of the trips was shared equally, with the funds drawn from the Super Fund, and charged back as a debt. Their last overseas trip was in 2015.
Throughout their marriage, the applicant undertook the vast majority of household tasks, including all of the cooking, cleaning, shopping, washing and gardening. On Saturdays, the deceased worked in the morning and played tennis in the afternoon; it was not unusual for him to contact the applicant during the day and tell her that he had invited guests for dinner. It was the applicant’s responsibility to prepare the meal and ready the home for guests. They regularly entertained clients of the practice at home; again, it was the task of the applicant to make all of the necessary preparations for the dinner party.
In 2013, the deceased and the applicant purchased a holiday home at Victor Harbor. The house was funded from the Super Fund, as well as from an account that the deceased had in his sole name. The house was registered in the deceased’s name, although it is the applicant’s contention that it was funded from their joint earnings (through the Super Fund). Ultimately, it was sold to fund the deposit for his accommodation at Estia Health, the aged care facility where the deceased lived for the last approximately eighteen months of his life.
In 2014, the deceased was diagnosed with Parkinson’s Disease. Some months later, the diagnosis was changed to progressive supranuclear palsy (“PSP”) a degenerative condition which leads to progressive physical disability and cognitive impairment. As well as becoming increasingly infirm, the deceased became increasingly suspicious of the applicant, which was characterised by an obsession with her sexual history and the belief that she would remarry as soon as he died. While he had always been controlling with money, he became more so, demanding that she resign from her various clubs because of the expense and scrutinising her shopping expenses and so on. He would require her to justify certain expenses if he did not believe they were necessary. He said on numerous occasions that there was no need for him to provide for her in his will because she would remarry soon after his death. He became argumentative about minor things. The deceased maintained control of his financial affairs until he was admitted to Estia. It was the applicant’s evidence that over this period, his priorities in respect of his financial arrangements changed.[8] She said that, while he had always told her what she could and could not spend money on:
… he would complain about the costs but if he didn’t have what he wanted because I hadn’t bought it well he couldn’t see the correlation between the two, that I didn’t buy it because he didn’t want it but then he wanted it and he was angry because he didn’t have it. You couldn’t – reasoning, I suppose the ability to reason, he had lost a lot of that.[9]
[8] T149.13-25.
[9] T149.34 – 150.3.
By the time of his diagnosis of PSP, the deceased had relinquished his driver’s licence as his condition had affected his vision. From this time, the applicant drove him wherever he wanted to go. Increasingly, his balance, speech and mobility became difficult.
In 2017, the deceased entered Estia. By this time, the applicant had become his full-time carer. Initially, his admission was for respite care for the applicant; it soon became clear that it was unsafe for him to return home, not only because of his own physical needs, but because there was a concern that he would become violent towards the applicant as a result of his condition. He remained at Estia, until his death.
When the applicant and the deceased commenced their relationship, the applicant’s daughters were eight and six years old and the respondent was 12 years old. Initially, the respondent was at boarding school and subsequently lived with them from time to time. The applicant’s daughters lived with them on a full‑time basis. The deceased would drop all three girls to school in the morning, and the applicant would pick them up after school. The applicant says that the deceased did not have a close relationship with her daughters; she says that she endeavoured to treat the respondent in the same way that she treated her own daughters. The applicant paid for all of her daughters’ expenses from her own salary. In addition, she used the child endowment payments that she received to meet their expenses. The applicant received inheritances from her former mother‑in‑law and from her own parents; she kept this money separate from her other funds to use for her children and grandchildren. It was the deceased’s position that she should look after her daughters and he would look after the respondent. Despite this, when the respondent lived with them, the applicant did all of her washing and other household tasks required for her.
At the time of the applicant’s marriage to the deceased, the deceased had yet to finalise his former wife’s claim for spousal maintenance. This was finally concluded in 2004. It was the applicant’s evidence that the deceased’s superannuation from his employer, prior to the establishment of DG Bramwell & Co, in addition to a further payment, was paid to the deceased’s first wife by way of maintenance.[10] The result of this was that, when the Super Fund was set up, the deceased had no existing superannuation; all the superannuation in the Super Fund at the time of his death had been accumulated since his marriage to the applicant. This evidence was not challenged. The applicant was unclear of the details of the arrangements with the deceased’s first wife; her evidence was that it was a matter organised by the solicitors and one to which she was not privy.[11]
[10] T120.21 – 121.4.
[11] T143.8 – T144.6.
In support of this evidence, the applicant sought to have admitted into evidence a letter from the deceased’s family lawyer, Mr Peacock, to the Public Trustee as administrator of his first wife’s financial affairs. The letter is dated 25 October 2004, and encloses a draft application for final orders for lump sum spousal maintenance and a draft affidavit of the deceased. The paragraphs of the affidavit on which the applicant seeks to rely read:
26.I re-married to my second wife, also called Jean, and Jean worked with me as an Office Administrator in my own Practice.
27.Because Jean so worked I was able to keep up with and continue the payments to my former wife.
28.My present wife’s the (sic) income was vital to our financial viability. Without it we simply could not have got by.[12]
[12] Document 13.
The applicant says that these statements support her evidence that she made an important financial contribution to the marriage.
Mr Cox QC, on behalf of the applicant submitted that the letter and draft affidavit should be admitted into evidence, as business records pursuant to s 53 of the Evidence Act 1929 (SA). He relied on the decision of Bampton J in Lang v Davey[13] (“Lang”).
[13] [2020] SASC 160.
In Lang, Bampton J said the following:
[52] In my view, the Playford letter is admissible as a business record under s 53. It is well-established that the purpose of s 52 and s 53 is to prevent the exclusion on technical grounds of evidence which is of undoubted probative value. As noted by Lander J in Southern Equities Corporation Ltd (In Liq) v Bond (No 2) (“Southern Equities”), in relation to the previously numbered s 45A and s 45B of the Evidence Act, the sections “are remedial in character and were enacted for the purpose of facilitating proof of evidence in both civil and criminal proceeding. Because they are remedial, they should be given the most liberal construction and any technical construction should be eschewed”.
[53] There is no dispute that a solicitor’s practice is a business. As articulated by Lander J in Southern Equities, before s 53 can operate to permit admission of the Playford letter, three threshold matters must be established. The first is that the Playford letter is “an apparently genuine document”. There was no suggestion it is not. Secondly it must be a business record. A solicitor’s letter to a client providing advice is a document prepared or used in the ordinary course of business. I am satisfied it is a business record. Thirdly if it is an apparently genuine document which has been prepared or used in the ordinary course of business, it must have been prepared “for the purpose of recording any matter relating to the business” that is the solicitors practice. The Playford letter is a document recording advice provided to a client. It records legal advice which is a matter related to the business of a solicitor’s practice. The three threshold matters have been established.
[54] Even though the Playford letter passes the threshold requirements it must not be admitted if I am of the opinion that it should not be admitted for any of the three reasons in s 53(2). First, I am not of the opinion Mr Playford can and should be called to give evidence. Second, I am not of the opinion that the evidentiary weight of the letter is outweighed by any prejudice which might result to any party. Third, it would not be otherwise contrary to the interests of justice to admit the document. The Playford letter will be received into evidence as exhibit E3. Pursuant to s 53, the Playford letter is admissible without further proof and may be used as evidence of any facts stated in it, or any fact may be inferred from it (whether the inference arises wholly from the matter contained in it, or from the matter in conjunction with other evidence).[14]
(citations omitted)
[14] Ibid, [52]-[54].

I accept that the letter from Mr Peacock amounts to a business record within s 53 of the Evidence Act. It is apparently genuine, it is a business record and it has been prepared in the ordinary course of business for the purpose of recording any matter relative to business. The letter was prepared by Mr Peacock for the purpose of conveying his client’s instructions to the Public Trustee. I note that the question of whether Mr Peacock could be called to give evidence of the letter’s contents was not addressed. I will assume that this is not possible.
According to s 53, if it is admitted into evidence, it is evidence of any fact stated within it. For present purposes, the relevant fact is that it encloses a draft affidavit of the deceased. In my view, however, this does not allow me to infer that the contents of the affidavit are true, or even that its contents were the subject of the deceased’s honest belief. The affidavit has not been sworn, and there is no evidence before the Court of the contents of the document that was eventually filed with the Family Court. The filed document may be identical to the draft attached to the letter; it may have undergone minor or indeed, substantial amendment.
As a result, I am prepared to have the letter and draft affidavit admitted into evidence, however, only as evidence of the fact that Mr Peacock sent a draft affidavit in those terms to the Public Trustee. It is not evidence of the truth of the matters set out in the affidavit. I attach little weight to it, as the affidavit is unsworn and there is no evidence before me about the contents of the affidavit that was filed with the Family Court.
At the date of the deceased’s death, the applicant’s assets (in her sole name) consisted of her half share in the property, superannuation in the amount of $464,000, shares valued at $118,000, and cash in the region of $25,000. At the date of the trial, the property had appreciated significantly in value resulting in an increase in the value of the applicant’s share, her superannuation was worth $472,000, her shares had increased in value to $170,000, and her cash balance remained at $25,000. The pension that she would receive through the pension stream amounts to $23,000 per annum.
It was the applicant’s evidence that she did not learn of the contents of the will until after the deceased’s death, when she received a copy from his lawyers. The deceased had made many wills during his lifetime; the applicant gave the wills that she located after his death to her lawyers. She said that she was never informed of the contents of his various wills, although the deceased:
… had made various comments along the lines of “Amanda’s needs are greater than yours. You will re-marry in 12 months after I die” and all sorts of things like this …[15]
[15] T155.15-18.
At the time of the trial, the applicant was 78 years old. She remained living in the house that she had shared with the deceased. The house is in reasonable repair, although there are a number of issues of ongoing maintenance that will need to be dealt with in due course.
The applicant’s health is reasonably good, for a person of her age. She has regular physiotherapy, for muscle strengthening and to assist with her balance. She also suffers from asthma, and takes regular medication for high blood pressure, arthritis and cholesterol.
The applicant remains a member of the Queen Adelaide Club, the Grange Golf Club and the Meadows Golf Club.
The applicant’s evidence was that, over the course of their marriage, the deceased provided the respondent with significant amounts of money, regularly paying her bills and assisting her with other expenses. While she was not aware of any written loan agreement between the deceased and the respondent, she said that both the deceased[16] and the respondent[17] talked at various times of the money, or some of it, being repaid.
[16] See for example, T163.28-29.
[17] See for example, T164.34-35, T165.6-12.
The applicant called four witnesses to support her evidence. They were Elizabeth Mary Henwood, Rosalind Ada Neale, Estella Marjory Farwell and Lorraine Clare Deere. Each is a friend of the applicant, and knew the deceased for many years before he developed PSP. Their evidence was uncontroversial.
The applicant was described by her friends as a devoted wife and an excellent hostess, who was very supportive of her husband and his endeavours. They described the deceased as a demanding man, who did not appear to be particularly appreciative of the applicant. Ms Neale described the applicant as “waiting on [the deceased]”[18] and she went on to say:
Whatever [the deceased] wanted her to do she seemed to just go ahead and do it to please him.[19]
[18] T181.25.
[19] T181.33-35.
In describing the deceased, she said:
He was probably that generation, dare I say, where women have a place in the home, it’s to look after the men.[20]
[20] T181.37 – T182.1.
Ms Farwell described the deceased in the following way:
He was very demanding and he seemed not to express much gratitude to Jean for the things that she had done. I was also concerned or a little uncomfortable when he always referred to her as “my wife” rather than the more intimate term of his wife’s name, Jean.
…
Sometimes [the applicant] was quite hurt and she seemed powerless to do anything about it. She certainly didn’t correct him at all and I observed that as a general rule [the deceased] did not like being contradicted in anyway.[21]
[21] T184.12-22.
All of the witnesses called in support of the applicant’s case, including the applicant herself, were witnesses of truth. They were credible in the evidence that they gave. I have no hesitation in relying on the evidence that they gave.
The respondent’s evidence
Only the respondent gave evidence in support of her defence of the applicant’s claim.
The respondent was born in 1975. From her early years, her mother suffered from mental health problems and as a result, the respondent’s relationship with her mother was “traumatic”;[22] her evidence was that the deceased always tried to shelter her from these issues. She said that the deceased looked after her in a way that her mother was never able to. They did many activities together, such as horse riding, skiing, tennis and other after-school activities. She described her relationship with her father, over her lifetime, as:
Very loving, very kind, very warm. Very safe.[23]
[22] T219.8.
[23] T246.30.
The respondent was at boarding school in 1987 and 1988; after that, she lived intermittently with the applicant and the deceased, and then with her mother. She said that she “was back and forth a lot.”[24] The respondent finished school at the end of year 12 and moved out to live with a friend at the age of 18.
[24] T220.33.
After she left school, the respondent worked for the deceased as his receptionist for a period of time, and also collected money for charities. She ceased working for her father when she started getting migraines on a regular basis. In addition to migraines, the respondent also suffered from other health problems, including asthma and bronchitis.
The respondent lived in a number of different rental properties. After a period of time, the deceased bought a unit at Glenunga, in which the respondent lived; for a period of time, the respondent paid a small amount of rent, and eventually, she lived there rent free. The deceased paid for all of the maintenance and upkeep of the unit. During this period, the respondent continued to suffer poor health, as a result of which she did not work on a regular basis. She then became pregnant with twins, but lost the babies late in the pregnancy. She spent some time in intensive care and suffered a number of serious complications which led to further ongoing health problems.
After living at the Glenunga property for several year, the respondent moved to a rental property at Marden. During the time that she lived here, she undertook studies at Marden Senior College. Her father continued to help her financially.
From about 1997 to 1998, the respondent worked full-time for an internet company; she subsequently moved to Melbourne:
The primary reason was to get away from my mother, so, and there was a course that I wanted to do in Melbourne as well.[25]
[25] T228.2-4.
The deceased assisted the respondent with the costs related to moving to Melbourne, including paying for removalists. He also paid her household bills, as she was working on a voluntary basis and her only income was a government benefit.
The respondent returned to Adelaide after about a year at which time she lived with her then-partner, and worked at a supermarket as a checkout operator. While working at the supermarket, the respondent suffered a work injury, and spent time receiving WorkCover payments. Subsequently, the respondent undertook a diploma in multimedia, and then a course in photography. She then obtained work in a camera shop, but sustained another work injury, which led to spinal surgery.
In about 2008, the respondent obtained work at the University of Adelaide, and remained working at the University in various roles until 2016. She left her employment at the University in 2016, because the area where she was working was being restructured, and because her health had deteriorated. She currently receives a disability support pension. In addition, she undertakes some casual work through an online education business. The respondent expressed the view that her prospect of returning to full-time work was low.
There is no doubt that, during his lifetime, the deceased provided significant financial support to the respondent. Her evidence was that, rather than giving her cash, he would pay her bills, take her shopping and pay for her groceries, and pay other day to day expenses. At one period he provided her with low rent, and then rent free accommodation. The respondent’s evidence was that, while she talked about wanting to pay him back, and about “borrowing” money from him, there was no real expectation that the money would be repaid to him:
Q.You were present in court and you heard evidence from the applicant relating to a conversation where you allegedly said words to the effect of pay him back one day.
A.    Yes.
Q.    Do you ever recall having that conversation.
A.    Yes, I would often have that conversation that I wished I could pay him back.
Q.    Do you now recall what was said during such a conversation.
A.Dad would say different things to me and different things if Jean was around, so to me he would say, 'Don't worry about it, I can afford it, you can't.' I would say, 'What about Jean?' He would say, 'You let me worry about her.' I hated borrowing money off dad.
Q.And so, you agree that from time to time you would say things like 'I hope to pay you back'.
A.I hope I can, I wish I could. It was more I wish I could because I knew that that hope was just - it's more a wish than a hope.
Q.    And when you expressed that wish or hope, did your father say anything to you.
A.Things like 'Don't worry about it, it's okay I can afford it, you can't.' Sometimes he was worried about how Jean would react.[26]
[26] T241.14-38.
She said that she used the word “borrow” because it made her feel better:
Q.And then earlier, when were you discussing the payments that are recorded in that handwritten sheet of payments, when my learned friend Mr Ower was asking you about them you said in one answer 'I had to borrow money off dad', do you remember giving that evidence.
A.    Yes.
Q.That's the case, wasn't it, even before 2017 and '18, you were borrowing money off your father.
A.I would use the term 'borrowing' because it made me feel better about the amounts. It was giving but borrowing.
Q.Start with your evidence in the court and that was that you said 'I hated borrowing money off dad'.
A.    Yes.
Q.    And that was the truth, wasn't it, that you had borrowed money off your father.
A.    Being given money from my father.
Q.    Why did you use the term 'borrowing' then.
A.    As I said before, it made me feel better about the situation I was in.
Q.    In your evidence in this court you used the term 'borrowing'.
A.    Yes.
Q.    You're not trying to feel good when you're giving your evidence today.
A.    I guess it's habit.[27]
[27] T251.24 – 252.10.
The respondent could not recall any discussion with the deceased where he indicated that she would be required to repay money to his estate after his death, on account of the money that he had given her, although her evidence was that there was a conversation to that effect with the applicant and the deceased’s lawyer. The respondent was adamant that none of the money given to her by her father could properly be classified as a loan.
The respondent said that, once the deceased entered Estia, regular payments to her were organised by the applicant and the deceased’s lawyer. She confirmed that these moneys were referred to as a loan, and that they would be repaid to his estate after his death.[28]
[28] T264.33 – 265.6.
The respondent conceded that there was a number of entries in her bank statements which were described as “loans”. Her evidence in this regard was that:
If there were transfers referred to loans, it was because [the applicant] did those transfers, not because Dad – Dad never referred to anything as a loan.[29]
[29] T275.10-13.
The respondent’s evidence was that the deceased discussed his will with her on a number of occasions, but that she did not understand much of what he told her.[30] He told her that she would be cared for in his will.[31]
[30] T246.36-37.
[31] T247.1.
The respondent said that, from time to time, she typed emails for the deceased for him to send to his lawyer about his will. The deceased would dictate to her, and she would transcribe his words, to send instructions to his lawyer.[32] Nonetheless, her evidence was that she was unaware of the contents of his final will, that she did not understand the effect of the emails that she typed on his behalf, and that she did not recall the contents of the emails.[33] She said that she did not receive a copy of the deceased’s last will until after his death.
[32] T256.32 – T257.24.
[33] T258.18-32.
The respondent lives in her own home which is subject to a mortgage. Initially, she purchased the house with her then-partner; when that relationship ended, she purchased his share of the property from him and is now the sole registered proprietor. She has a lodger who pays rent, to assist her with the mortgage repayments. She owns a motor vehicle that is almost twenty years old.
The respondent’s health remains poor. She suffers from degenerative disc disease, fibromyalgia, chronic fatigue, thoracic outlet syndrome, Lyme disease and a stomach ulcer amongst other things. She also suffers from PTSD, an anxiety disorder and an attachment disorder.
I consider that the respondent was a truthful witness, who was doing her best to assist the Court. There was a number of matters about which she was somewhat vague; I do not, however, consider that she was being deliberately obstructive or evasive. There is no doubt that the respondent has suffered a number of traumatic events in her life which have had a significant impact on her physical and mental health. It is also clear that she and the deceased had a very close and supportive relationship.
The legal principles
There was no dispute between the parties in respect of the principles to be applied when determining whether a claimant is entitled to further provision from the estate of a deceased person; rather, it was in the application of those principles that the parties differed.
For completeness, I set out the relevant section of the Act:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
There is no doubt that the applicant is a person entitled to claim the benefit of the Act.
In determining whether a person is entitled to further provision, the Court is required to undertake a two stage enquiry. This was described in Singer v Berghouse[34] in the following way:
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant.[35]
[34] (1994) 181 CLR 201.
[35] Ibid, 208.
Blue J, in Carter v Brine,[36] described the role of the Court in the following way:
[36] [2015] SASC 204.
The question whether by reason of the testator’s testamentary dispositions the claimant has been left without adequate provision for his or her proper maintenance, education or advancement in life is a question of fact involving the exercise of value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs or intentions of the testator.
The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death.
The words “adequate” and “proper” in the composite phrase “adequate provision for his proper maintenance, education or advancement in life” are both relative. This requires an examination of all relevant circumstances. Factors to be assessed and weighed relative to other factors include but are not limited to:
·the age, condition, general situation and other factors relating to the claimant;
·the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed;
·the claimant’s capacity and resources to meet those needs, lifestyle and standard of living;
·the relationship between the testator and the claimant;
·the nature, extent and character of the estate;
·the relationship between the testator and other persons for whom the testator provided or having claims against the estate;
·other claims against the estate.
When considering the claimant’s “needs” and the lifestyle and standard of living to which the claimant has become accustomed, the Court does not make an assessment in absolute terms of what a person needs to survive or even to live comfortably but a relative assessment by reference to the claimant’s history and circumstances and all other relevant factors including those identified above.[37]
[37] Ibid, 591-594.
It is clear that, in determining whether the applicant was left without adequate provision by the deceased, I must make a holistic assessment of the relationship between the applicant and the deceased, the life that they led together, the financial resources of the applicant, the size of the deceased’s estate, and the other claims on the deceased’s testamentary bounty.

The applicant submitted that the primary duty of a husband is to provide for his wife after his death, particularly where the marriage has been a long one. Mr Cox, on her behalf, put to me that (while not submitting that a widow’s claim was paramount) the duty extended to ensuring that the applicant was secure in the matrimonial home, and had sufficient income to allow her to continue to live in the same style in which she had lived prior to the deceased’s death, with enough resources to meet unforeseen expenses. He submitted that the provision that the deceased had made for the applicant was inadequate, once the full extent of his estate was taken into account. Mr Cox argued that the applicant, in fact, received very little from a large estate, receiving only a conditional right to use his half of the matrimonial home and household effects, and a small pension. He submitted that, on current calculations, there would be no residue, nor would there be sufficient cash to pay her the legacy of $60,000 in full.
Mr Cox submitted that the true value of the deceased’s estate was around $2,000,000. This is on the basis that the pension stream will be paid into the deceased’s estate after the applicant’s death. Thus, the estate was undervalued to this extent, in the statement of assets and liabilities filed with the Court. Mr Ower QC, on behalf of the respondent, rejected the contention that the pension stream should be treated as part of the estate.
Mr Cox submitted that, given the length of the marriage, and the fact that the applicant’s contribution, in both financial and non-financial ways, greatly enhanced the value of the Super Fund, it is clear that the applicant has been left without adequate provision. The deceased controlled all of the couple’s finances, including the relative contributions to the Super Fund, and made no allowance for the fact that the applicant’s contributions at home enabled him to spend longer hours at work. In failing to acknowledge this, the deceased increased the value of his own superannuation contributions at the expense of the applicant’s.
The applicant submitted that the deceased’s moral duty to the applicant was clear. She had been a devoted wife for thirty years, and in the last years of his life was his carer, until he moved to Estia. The years after the deceased’s diagnosis with PSP were particularly difficult for the applicant, as he became disinhibited, controlling and demanding. Even before his diagnosis, the deceased was demanding and failed to appreciate the contributions that she made.
The applicant worked for a significant portion of their marriage, and so contributed to the couple’s wealth. In addition, she managed all of their household matters so that the deceased could work longer hours, thus allowing him to build up a significant superannuation fund. Her preparedness to attend to all of their domestic tasks resulted in her inability to work longer hours in their business and so build up her own superannuation account to the same or a similar degree. Thus, the deceased was able to maximise his contributions to his superannuation at her expense. In this regard, the applicant referred to the matter of Devereaux-Warnes v Hall (No 3),[38] where the Court said:
[38] [2007] WASCA 235.
The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman per Gibbs J at 496 - 497; Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P at 575; Singer per Mason CJ, Deane and McHugh JJ at 209 - 210.
Plainly, the totality of that relationship would include:
(a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b) any contributions by the claimant to building up the deceased's estate; and
(c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.
See Coates per Dixon CJ at 510; Hughes per Gibbs J at 147; Goodman per Gibbs J at 497.
Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 per Kirby P at 28, per Sheller JA at 42.[39]
[39] Ibid, [74] – [76].
Mr Cox submitted that, where there are substantial differences in superannuation benefits between a couple, because of the way that they structured their different contributions to the marriage, it is just and equitable to equalise the superannuation benefits between them. In this regard, he drew an analogy between a claim for provision under the Act and the balancing exercise carried out by the Family Court on the dissolution of a marriage. He submitted that community expectation would be that a wise and just testator would take this into consideration when making his will. By failing to do so in this case, the deceased failed in his moral duty to the applicant.
The applicant submitted that she was entitled to at least half of the estate, given the length of the marriage and her undisputed contributions to it. In particular, she should receive the deceased’s half share in the house. Mr Cox submitted that it was not appropriate that, after thirty years of marriage, the applicant should be left without her own home. While she retained the right to use the house, she remained dependent on the trustee (the respondent) to determine that she remains compliant with the terms of the will relating to the house. He submitted that it was undignified for the applicant to become dependent in this way. Further, it was inappropriate for there to remain such a link between the applicant and the respondent given their inability to resolve this dispute without a trial. They should be allowed to have a clean break from each other.
Mr Cox submitted that, on the basis of the applicant’s current assets and income, her future was uncertain; she had few resources to meet unexpected contingencies. If she wished to take part in the activities that she had enjoyed prior to the deceased’s death, such as membership of the golf club and the Queen Adelaide Club and regular travel, then she would need to access her capital, as her income was insufficient. Given the size of the estate, it was not appropriate that the applicant should be left with insufficient resources to enjoy the same or similar lifestyle to that which she had enjoyed prior to the deceased’s death.
Mr Cox submitted that appropriate provision for the applicant was receipt of the deceased’s half share of the house, the share of the deceased’s superannuation death benefit that was paid into the estate, and a further $260,000. He submitted that this would leave the respondent with very substantial provision, particularly in light of the fact that she would receive the pension stream after the applicant’s death.
Mr Ower, on behalf of the respondent, submitted that the applicant had, in fact, been left with adequate provision by the deceased, once proper consideration is made of her own financial position, the assets of the deceased at the date of his death, and the provision made for her in his will.
Mr Ower submitted that, in determining whether the applicant has been left without adequate provision, it was appropriate to consider the age, capacity, means and competing claims of the other beneficiary under the will, the respondent. He said, however, that it should not be treated as a competition between the applicant and the respondent; the respondent, in fact, is not required to establish anything as her prima facie rights are set out in the will.
In my view, this submission is correct. This is not a “competition” between applicant and respondent. It is for the applicant to establish the breadth of the deceased’s moral duty to her and her relevant financial need; no such obligation falls on the respondent. For the purpose of the first stage, or the jurisdictional question, it is only the financial position and the moral claim of the applicant that are relevant. If there is a finding that she has been left without adequate provision once these questions have been assessed, the relevant circumstances of the respondent, including her age, capacity and means must be considered, to allow an appropriate calculation to be made as to the further provision to be granted to the applicant. It may be said that the first stage involves an assessment of the deceased’s duty as a testator vis-a-vis the applicant. The second stage incorporates the circumstances of the respondent in that assessment.
The respondent relied on the case of Slack v Rogan; Plaffy v Rogan,[40] where White J Said:
In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136])…[41]
[40] (2013) 85 NSWLR 253.
[41] Ibid, [127].
This position was restated by White J in Sgro v Thompson,[42] where he said:
I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.[43]
[42] [2017] NSWCA 326.
[43] Ibid, [86].
Mr Ower commended this approach on the basis that it admirably fits the circumstances before me: there was no question that the applicant was a dutiful and devoted wife, and that the marriage was a long one. He accepted that this was uncontroversial. I note, in this regard, that the respondent was not, at any point, critical of the applicant or her relationship with the deceased, nor did she seek to impugn her conduct towards him.
Mr Ower was careful to submit that the Court was not in any way prohibited from exercising its discretion by any notion of testamentary freedom; his point was that care should be taken when considering whether that discretion should be exercised. The Court must accept that, in many circumstances, the testator is in a better position than the Court to determine the best way in which to fulfil his moral duty. Mr Ower emphasised that both need and moral duty needed to be considered at the jurisdictional stage.
The respondent submitted that, at the date of the deceased’s death, the applicant had assets of around $1,000,000, made up substantially of her share in the house, worth around $385,000, and her own superannuation, worth $464,825.88. In addition, she held a share portfolio to the value of approximately $120,000. By the date of trial, the applicant’s assets had grown substantially, with her share in the house worth $562,500, her superannuation worth $472,827 and the share portfolio valued at $170,000. The applicant’s income from her own superannuation was, in the year ended 30 June 2018, $31,320. For the year ended 30 June 2019, she received, $17,920 from the pension generated by the pension stream, and $41,985 from her own superannuation. For the year ended 30 June 2020, the pension payable to her was $30,222 and her superannuation generated $47,778. In the year ended 30 June 2021, she received $26,001 and $51,998 respectively from her two sources of income. Thus, in the year ended 30 June 2021, her income was both substantial and tax free. In addition, the applicant received a small income each year from her share portfolio.
The respondent submitted that an applicant who has assets in her own name of more than $1,000,000 and a tax free income of around $80,000 to $85,000 each year, should not be considered to have been left without adequate provision. Even taking into account the statement of living expenses provided by the applicant, he submitted that the only “need” not met by her current income, was a fund to allow her to go on holiday. I note, that in submissions, the respondent removed the one‑off costs required for home maintenance from her required living expenses.
It was the respondent’s submission that, taking into account both the deceased’s moral duty and the applicant’s financial position, the applicant has been left with adequate provision. The deceased made adequate provision for the applicant in respect of her living arrangements by giving her a portable life interest in his share of the home. By the nature of the interest that he has left her, the applicant is able to remain in her house, sell it and move to alternative accommodation if she wishes to do so, or sell it and use 75% of the deceased’s share for the proceeds of sale to generate income for herself. In addition, she has been left a legacy of $60,000 and half of the residuary estate (although both parties agree that this will not be significant in value).
Thus, the deceased has appropriately provided for the applicant’s accommodation and income, while allowing for the fact that her own assets are available to be used for the luxuries of life, such as holidays. The respondent submitted that, if the applicant wished to go on holiday, it was open to her to sell some of her shares, or use some of her superannuation to do so. Mr Ower submitted that, given the applicant’s age, her assets were sufficient to allow her to do this without substantially diminishing her income.
The respondent referred to Steinmetz v Shannon & Anor,[44] (“Steinmetz”) and the analysis by Brereton J of claims made by widows. Mr Ower submitted that the proper approach was that adopted by the Court in Luciano v Rosenblum[45] (“Luciano”) and endorsed by Brereton J. In Luciano Powell J said:
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.[46]
[44] (2019) 368 ALR 161, from [101].
[45] (1985) 2 NSWLR 65.
[46] Ibid, 69-70.
Once this is taken into account, it can be seen that the deceased appropriately discharged his moral duty. The applicant is secure in her home, she has sufficient income to allow her to live in the style to which she is accustomed and she has a fund for contingencies. Her own assets and the provision made to her by the deceased in his will, clearly allow all of this.
Mr Ower argued that there was no principled basis on which a large sum, such as that proposed by the applicant could be grounded.
While Mr Ower contended that I should adopt the approach set out by Brereton J in Steinmetz, he otherwise argued that Steinmetz was distinguishable from the case before me. In that case, the estate was significantly larger than the one here (in the region of $6,000,000) and there were no competing claims, in that the other beneficiaries had no real need.
In this matter, the respondent has real need. Her health is poor and she receives a disability support pension. It is most unlikely that she will ever be in a position to return to full-time employment. It is clear from the deceased’s earlier wills, that his intention was always to provide the capital of his estate to his daughter, no doubt to provide her with the funds that she would obviously need for her ongoing maintenance throughout her life.
Mr Ower submitted that the deceased sought to balance the interests of his wife and his daughter by allowing the applicant the largely unfettered use of his assets during her lifetime, but ensuring that they passed to his own daughter after his wife’s decease.
Mr Ower submitted that it was clear from the terms of the email dated 9 May 2016 (Exhibit R33) that the deceased was making a considered decision as to how to dispose of his estate in light of the principles surrounding testamentary freedom, set out in Slack and Srgo. Credit should be given to the deceased, as being in a better position than the Court to determine where his moral duty lay.
The email of 9 May 2016 says, in part:
I might appear very pernickety but I want to avoid any arguments later, particularly as Georgina, Jean’s eldest daughter would do anything to upset or challenge Amanda. Incidentally, Jean has not heard anything from Georgina for close to 2 years, following the breakup with her de-facto same-sex partner, from which Georgina has a current court case in regard to this relationship breakdown. This shows that Georgina is more than willing to take matters to litigation regardless of cost and validity. I have heard second-hand that Georgina’s court costs are currently in the range of $30,000 of which Jean has funded $10,000, although Jean has said she was not aware the funds would be used for this purpose.
…
The crux of the matter is that I don’t want any funds of mine being used before Jean has exhausted her share of the proceeds of Hyland Terrace and I would like any funds that Jean has used from the trust to ultimately be returned to the trust and then distributed to Amanda.
Can we split my ½ interest in Hyland Terrace into 2 parts. With ½ of my part of Hyland Terrace being available for Jean as the “The Residence Trust Fund” with income available to her, while it is invested, with he other ½ of my part of Hyland Terrace direct to Amanda. I would prefer that one ½ of my proceeds of sale of my ½ interest be available whether Jean is purchasing a substitute residence or Nursing Home Bond. This is to replace up to $100,000 we have amended, which in any event will ultimately go back to Amanda.[47]
[47] Document A33, p2.

I do not set out the email in full, as these passages provide an adequate example of its contents.
There is no doubt that the deceased had a very firm opinion as to how his estate should be distributed after his death. I consider, however, that it would be wrong to place too much weight on his intention in this regard, despite the fact that it was firmly held, for a long period of time. The adequacy of the provision made for the applicant is not determined by the strength of the feelings held by the deceased as to how his estate should be distributed. It is clear that the deceased was concerned to ensure that the respondent was provided for; if this intention, however, leaves the applicant without adequate provision, then his intention must be overridden, no matter how considered or long held it is.
In my view, the applicant has been left without adequate provision from the estate of the deceased. I do not consider that the interest in their home, portable though it is, provides a widow in the circumstances of the applicant with sufficient certainty in respect of her place of residence. It is clear that the first house bought by the applicant and the deceased was contributed to equally by them. Over the nearly thirty years of their marriage, their place of residence changed a number of times. Each time, they both made a financial contribution, and there is no doubt that the applicant made the vast majority of the non-financial contributions to their various homes.
While contribution, both financial and non-financial, is important, however, it is not the only factor to be considered in this context. In my view, it is inappropriate to render the applicant beholden on the respondent to a large extent, in respect of her residence. The will, for example, requires the applicant to keep the house and other improvements “in at least as good a state of repairs and condition as the same are in at the time of my death reasonable wear and tear excepted”. This immediately invites dispute between the applicant and the respondent as to the state of repair and condition the house was in at the time of the deceased’s death and what amounts to reasonable wear and tear. Without setting out the relevant clause of the will in full, the following further disputes are invited by it:
·What insurance is deemed necessary and expedient; and
·In what circumstances would the applicant be considered no longer to reside in the home, given that it need only be in the opinion of the trustees that she has ceased to reside there.
Further, if the applicant wanted to sell the home and move to a different accommodation, she must seek the acquiescence of the respondent before doing so, as the respondent must sign all of the documents necessary for a sale.
In my view, such provision is not proper in circumstances where, after thirty years of marriage, the applicant should be entitled to feel that her home is her own. It is not appropriate to require her to go from being mistress of her own home to being dependant on the reasonable behaviour of the respondent.
In saying this, I do not mean to suggest that there has been exhibited any likelihood that the respondent would behave unreasonably. One of the factors that has been notable about this case is the respectful manner in which each party has conducted herself. Neither has sought to criticise the other, or to impugn the other’s relationship with the deceased. Nonetheless, it is only natural to assume that their relationship will have been damaged, significantly or perhaps irretrievably, by the public nature of this trial. In my view, provision which requires the applicant to maintain against her will a relationship with the respondent, and to be reliant on the respondent’s reasonable conduct is not proper.
I am further of the view that the applicant has been left with inadequate provision in respect of the legacy left to her. On the basis of her usual expenses, set out in exhibits A7, A8 and A9, her income is insufficient to allow her to continue with the interests she pursued during the deceased’s lifetime, including golf, membership of the Queen Adelaide Club, and travel, and to ensure that the house receives the maintenance and upkeep that it requires. To achieve an income sufficient to allow her to continue to live in the same or similar way in which she lived prior to the deceased’s death, it is clear that further provision is required.
This leads to the question, what amounts to appropriate provision, taking into account the applicant’s unmet needs, the size of the estate and the circumstances of the respondent. It is clear that, while the respondent was not dependant on the deceased, he provided her with significant financial support throughout his lifetime. I do not consider that the evidence before me was sufficient to make a finding that the money that he gave her were loans. I accept the respondent’s evidence that she referred to them as loans to make herself feel better about accepting the money. Otherwise I do not consider that any evidence has been adduced to lead me to conclude that the deceased wanted or expected the monies to be repaid.
I have reached the conclusion that the deceased was concerned that his daughter was provided for as generously as possible, because he recognised that her life had been a difficult one, and that her ability to earn an income had been substantially affected by her physical health and by her circumstances when she was growing up. It is clear that he wished to leave substantial provision for his daughter. This should be disturbed no more than necessary to give the applicant adequate provision.
As previously set out, Mr Cox submitted that the applicant was entitled to the deceased’s half share of the property, all of the superannuation death benefit that was paid into the estate, and a legacy of $260,000. Mr Ower, on the other hand, submitted that this was unprincipled, and that a much smaller amount should be allowed as appropriate further provision.
I do not accept the applicant’s submission that she is entitled to the whole of the superannuation death benefit paid into the estate plus a further legacy of $260,000. There is no basis for making an award of this magnitude. Mr Cox urged me to consider “equalising” the superannuation benefits between the applicant and the deceased, because the actions of the applicant allowed the deceased to accumulate more superannuation than her. In my view, this in not the way in which the Act operates. While it may be “fair” to do what the applicant contends for, and while that may occur in a different forum, such as a Court exercising jurisdiction under the Family Law Act 1975 (Cth), that is not the basis on which appropriate provision under the Act will be assessed. The amount of further provision to which a claimant is entitled is based on need, as dictated by her financial circumstances and moral claim. An award that might be made pursuant to the Family Law Act does not act as a benchmark for an award under the Act. The circumstances in which each is applied, and the criteria they require, are not like.
There was a dispute between the parties as to whether the pension stream should properly be regarded as part of the deceased’s estate. The applicant contended that it was part of the estate, on the basis that it reverted to the estate after the deceased’s death. The respondent submitted that it did not form part of the estate, as it currently belonged to the applicant. In my view, this is not a matter that I need to decide. There was no challenge to the use of the pension stream by the applicant during her lifetime, nor was there any dispute that on the applicant’s death the respondent would receive the benefit of it. It is not money that is currently available for distribution under the will, nor is it money from which the respondent will receive any benefit until after the applicant’s death.
In my view, the applicant should receive by way of further provision, the deceased’s share of the house, outright. This will give her complete security in respect of her accommodation and the ability to make decisions about her future residential needs, without the need to defer to the respondent. It will allow the applicant and the respondent to live independently of each other, should they wish to do so.
In addition, I am of the view that the applicant should receive a legacy of $200,000, in lieu of the legacy provided for her in the will, but in addition to the interim payments already made to her. This will allow her to ensure that her house receives the repairs and maintenance that it requires, when they are required. Further, it will be sufficient to provide the applicant with a fund on which she can draw, to allow her to continue to pursue the interests she pursued during the deceased’s lifetime. This will still allow a substantial sum of money to be paid to the respondent to meet her undoubted needs.

[2022] SASC 12

11 February 2022