Carragher v Crook

[2009] NSWSC 191

CITATION:	Carragher v Crook [2009] NSWSC 191
HEARING DATE(S):	23/03/2009, 24/03/2009
JUDGMENT DATE :	25 March 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	25 March 2009
DECISION:	Paragraph 86
CATCHWORDS:	Family Provision. Application by stepdaughter. Whether she was part of household and partly dependent. Order made for provision. - Costs. Whether costs should be capped due to small legacy and uplift factor.
PARTIES:	Judith Anne Carragher v Joyce Mary Crook
FILE NUMBER(S):	SC 1829/2008
COUNSEL:	Mr PE Cullen for plaintiff Mr M Gorrick for defendant
SOLICITORS:	Alfotern Solicitors for plaintiff Wilkinson Throsby & Edwards for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 25 MARCH 2009

1829/08 JUDITH ANNE CARRAGHER v JOYCE MARY CROOK - ESTATE OF THE LATE RAYMOND MATTHEW McINERNEY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Raymond Matthew McInerney who died on 1 January 2008 aged 94 years. He was survived by his two children by his first wife and the plaintiff, who was the daughter of the deceased's second wife, Violet Carragher. Violet had predeceased the deceased some years earlier in 1991.

2 According to the plaintiff, she was part of the deceased's household and dependent upon him.

The last will of the deceased

3 The first will of the deceased was made in 1983 and in it he left his property to his second wife and in case she did not survive him, then for his children and his stepchildren equally.

4 His last will was made on 2 October 1991 just after his second wife Violet died on 21 September 1991. In that will he left the whole of his estate to his two daughters of his first marriage, Joyce Mary Cook and Valerie Joan Sangster.

Estate of the deceased

5 The estate consists of an un-registered car worth $1,000 and a house at Mittagong. That was valued in June 2008 by a Mr Davies at $300,000. Subsequently the defendant obtained an appraisal in February 2009 at a sum of $229,000. Mr Davies also gave evidence that in his view the market had not decreased but had increased to $315,000. Having regard to the lack of cross-examination I will accept the valuation of $300,000. The debts of the estate are as follows:

Debt due to the defendant $9,924.47
Administration costs $2,000.00
Defendant's costs $26,650.00

$38,574 47

Estimate of the plaintiff's costs $35,000.00

Total $72,574.47

6 These cost estimates were for a one day hearing; there would be more for a second day.

Family history

7 The deceased was born in 1914 and his first child, Valerie Sangster, was born in 1935. His second child, Joyce Cook, the defendant, was born in 1937.

8 The plaintiff's mother, Violet Florence McInerney married Norman Carragher in 1936 and the plaintiff was born in 1948. Shortly after her birth the father left the household and the plaintiff never saw him thereafter. The father left behind six children for his wife to manage.

9 In August 1949 the deceased and his first wife Mary purchase their own home at Thirroul. In the 1960s the plaintiff lived with her mother in a Housing Commission house at 25 Strudee Street, Towradgi. On 7 January 1963 the deceased first wife Mary died. In October 1963 the plaintiff's mother had the opportunity to purchase her Housing Commission house; she purchased it a price of £2,355. She had finance for the purchase.

10 It was in June 1964 that the plaintiff alleges she and her mother moved in to the deceased's home at Thirroul. Both the deceased and the plaintiff's mother had known each other as they had both worked on the railways together, and that is apparently how they met.

11 In August 1964 the plaintiff’s mother sold her Thirroul property for a sum of £3,150. The amount paid on discharge on the sale would have been close to £2,851, leaving a net surplus of £289.

12 According to reports the plaintiff’s mother bought a car at about this time. There was a suggestion she also helped her daughter to set up in a flat.

13 It was on 28 August 1964, only a few days later, that the plaintiff’s mother and the deceased married. At that stage the plaintiff was only 16½ years old. Between 1964 and 1973; both the deceased and his new wife continued to work in the New South Wales Railways.

14 In late 1965, probably in about September, the plaintiff alleges she moved out of the deceased home at Thirroul. The early in 1966 she found herself pregnant with her first child and she then confessed the matter to her mother and moved in, according to her, to live with her mother and the deceased at Thirroul for about three months. That was early in 1966.

15 She then apparently was shipped off to Sydney for four months to have the birth of the child, which was on 1 June 1966. In October, according to the plaintiff, she moved back to live with her mother and the deceased for a period of about four months. I will come back to the various items of evidence and the other matters.

16 In late 1966 or early 1967 she moved to a unit at Bellambie. In February 1967 the plaintiff suggested in her evidence her mother purchased property at Gwynneville and she was able to live in it rent free with her newborn child.. She lived there about six months. There is no evidence that the plaintiffs mother purchased it and it is unlikely she did having regard to what she received on sale.

17 The plaintiff, however, felt lonely at that place and she moved to a Housing Commission unit in Cliff Road, Wollongong where she stayed between 1968 and 1972.

18 In December 1971 she had another child, Raymond Carragher apparently born to her fiancee at that stage. At the time he was born she said she stayed at the Thirroul property for two to three months with her mother and the deceased before returning to the Housing Commission unit in Cliff Road Wollongong.

19 In 1972 she moved to another Housing Commission unit in Bulli and in 1973 the deceased retired from the railways and his wife retired in December of that year. At that time the plaintiff moved to a Housing Commission home at Mangerton near Wollongong. In 1974 the deceased sold his home at Thirroul and they purchased a property at Mittagong as joint tenants. This was with the assistance of a bridging loan from the defendant and her husband.

20 In 1978 the plaintiff moved to a different home at Mangerton; and in 1980 she moved to a home at Fairy Meadow. Between 1982 and 1991 the plaintiff had an unstable off again, on-again de facto relationship with a Mr Michael Hitchcock.

21 I have already mentioned that from 19 August 1983 the deceased and the plaintiff’s mother made wills with each other as sole beneficiaries and their children and stepchildren as substitutionary beneficiaries. In 1984 the plaintiff with her de facto partner, Michael Hitchcock and the plaintiff's children Raymond and Michelle moved to Queensland.

22 In January 1988 there was a break-up of the relationship between the plaintiff and her de facto partner and he in fact left the plaintiff with her two children with her mother and the deceased at the Mittagong property. According to the plaintiff they remained there for some four months.

23 They then in April of 1988, after obtaining a rented property, then moved to Balarang in New South Wales near Albion Park. Quite some time later Mr Hitchcock returned for some time but for how long is not clear.

24 The plaintiff’s mother died in September 1991 at the age of 72 years and immediately thereafter, within a day or two of her death, the plaintiff's last will was made on 2 October 1991. In November 1991 the property was transferred to the deceased with the filing of the notice of death and there was no need for Probate to have been taken out.

25 In 1994 Mr Jack Sangster, the husband of the deceased's daughter Valerie, died. In 1998 the plaintiff moved to a property on the Gold Coast in Queensland with her daughter, who was that age 16 years. In 2002 there was correspondence between the plaintiff and the deceased asking for a copy of her mother's will. The defendant replied by letter sending a copy of the will and suggesting all the jewellery and watches had been picked up by the defendant's sister Fay. The plaintiff was also enquiring about the jewellery. I will return to the terms of that letter later.

26 On 18 July 2002 the plaintiff wrote to the defendant about her mother's will and that prompted a reply from a solicitor. By 2003 Valerie Sangster had moved to a small one-bedroom Housing Commission unit in Mittagong and she used to visit the deceased on a continuous basis. In December 2003 the deceased became ill and bedridden and his daughters moved in to his house to care for him. He died on 1 January 2008 at the age of 94 years. Probate was granted in due course and the proceedings were commenced within time.

Eligibility

27 The plaintiff claims to be a part of the household of which the deceased was a member and that she was also dependent in part of the deceased. The plaintiff says she lived in the deceased household at Thirroul on a number of occasions. These periods were set out as follows in paragraph 14 of her affidavit of 18 July 2008:

“(a) About June 1964 to late 1965 for about 16 months (prior to and after my mother and the deceased were married);


(b) Early 1966 to mid-1966 for four months (immediately after the birth of my first child);

(c) About October 1966 to early 1967 for about four months (immediately after the birth of my first child);

(d) Mid-1971 on four occasions for from three days to one week (intermittently during relationship break-up);

(e) Mid-December 1971 to about February 1972 for two or three months (immediately after the birth of my second child);

(f) January 1988 to about may 1988 for about four months (immediately after returning from Queensland)."

28 The defendant suggested that she did not recall the plaintiff living there on the first occasion that is mentioned by the plaintiff. The defendant gave evidence that at the time shortly before his marriage the deceased said:

“ No one is going to move in with me and Vi. Everyone will have their own place so me and Vi can start a brand new life together."

29 There was also a conversation between the defendant and the deceased when the deceased said in 1966 about the plaintiff that she was living with them for a few months whilst she was waiting for a Housing Commission flat This confirms the occasion in 1966. In respect of the first period there was affidavit evidence of the plaintiffs brother that suggests some corroboration of the first occasion but in cross-examination he was plainly wrong.

30 In respect of the year 1988 evidence was given by the plaintiff's son Raymond. At that time Raymond was 17 years of age. I accept his evidence on the matter. The plaintiff says she stayed with her mother in 1971 after the birth of her son but she still maintained her Housing Commission flat in Cliff Street, Wollongong.

31 Both the defendant and her sister had well before 1964 moved away to start their own homes. At the time that the deceased and Violet and got together in 1964 the plaintiff was the only one of Violet’s children still at home. Her young age and her leaving school early to help her mother makes it likely that she would still be a responsibility of her mother at the time she re-married.

32 Although she had left school she was only 16½ years of age and had only very intermittent casual employment. This was not enough to have allowed her to support herself.

33 Notwithstanding the deceased's stated intention at the time of marriage, I am prepared to accept the plaintiff's evidence about the first period as I think it was highly probable. Her eventual leaving was not unsurprising given the deceased's stated intention.

34 Some of the other occasions are corroborated and those that are not I think are quite likely in respect of a person who only ever has had disability benefits and has had at least two stable relationships. It would be very natural for her mother and stepfather to take her in after the birth of a child and during a period of domestic upheaval. I accept the plaintiff's evidence as to the times when she lived with the deceased.

35 It is necessary for the plaintiff to establish that she is part of the deceased household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe [1989] VR273. It seems clear that that word in its ordinary sense is as set out in the Oxford dictionary:

“The ‘holding’ or maintaining of a house or family; housekeeping; domestic economy… the inmates of the house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".

36 His Honour McLelland CJ in Eq in Munro v Lake (unreported, NSWSC, 8 February 1991) dealt with the situation where a step-daughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

37 In Mankulin v Drew (unreported NSWSW 12 August 1993) Young J dealt with the matter at some length. He returned to it again in Nagatami v Hudson (unreported 18 September 1997) where he said:

“The High Court in another connection, considered the word ‘household’ in Cormick v Cormick (1984) 156 CLR 170, where, at 178, Gibb CJ said that ‘household’ was ‘a wide word which would include any relative, friend or servant ordinarily living in the house.’ The High Court did not seem to take the distinction between inner household and of a household which has been taken in most of the cases under the present Act.
Mr Hallen relied on Gobbo J’s decision in Kingsland v McIndoe [1989] VR 273. Although in that case Gobbo J examined many of the decisions on the word ‘household’, the phrase which his Honour had to construe was ‘ordinarily a member of the household of the person’ in the Crimes (Family Violence) Act 1987 of Victoria. The word ‘ordinarily’ itself committed some sense of continuity so the question was whether 39 weeks residence was enough. The Judge held that the learned magistrate's decision that there was no household was, on the facts, unimpeachable. At 278 he said that a person living in a household should share some bond with other members of the household.
In Munro v Lake McLelland J, 8 February 1991, unreported, his Honour said simply this ‘The concept of membership of a household… connotes a degree of continuity and permanency of mutual living arrangements’. He held that a step daughter who had stayed with the deceased (and her mother) each weekend for several years prior to her mother's marriage to the deceased was not a member of the household. His Honour contrasted this with the situation where a person was absent from the home for some temporary or special purpose.
Finally, I dealt with the cases again in Markulin v Drew 12 August 1993, unreported; see also Wagstaff v Wagstaff, Windeyer J, 6 November 1991, unreported, and Light v Anderson [1992] DFC 95-120, cases which show that a person can be a member of more than one household.
It does not seem to me that the plaintiff has satisfied the test laid down by McLelland J of demonstrating continuity and permanency of mutual living arrangements merely by showing that the deceased and his mother spent holidays at the Yokohama unit and/or that the plaintiff spent a holiday in Sydney. The evidence as to the nameplate outside the Yokohama flat brings the case closer to the borderline, but it does not seem to me sufficient even with the other matters to show that there was a household. It is not at all uncommon to find a professional person such as a barrister putting his or her nameplate on a set of chambers to which he or she has only a temporary connection, and whilst this is more uncommon with domestic living arrangements, it does not seem to me that it is enough to show that there was a continuity of the bond of a familial household between the plaintiff and the deceased."

38 As I have accepted that the plaintiff lived with the deceased 18 months when she was a young teenager who had negligible income, it seems to me she was part of the household at that time.

39 I turn to dependency which, of course, does not have to be established at the same time as the person was a member of the household. I will firstly refer to the general cases dealing with dependency.

40 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. Samuels JA at page 490 said:

“His Honour concluded that ‘dependent’ meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6 (1) the definition of ‘eligible person’ paragraph (d) (i).
In the present case, however, only financial dependence is relied on and I approach the matter on that basis. “Dependent’, in the ordinary sense of the word, means the condition of depending on something or someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 40 at 53; 21 BWCC 401 at 408, that in ‘deciding whether or not there is dependency the factors to be considered are past events and future probabilities’. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

41 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms:

“ Counsel then suggested, as I understood him, that these circumstances produce no dependence because each of them were separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirement of basic necessity or sustenance: cf in a different context certainly, the meaning of ‘needs’ in the Liquor Act 1912 as ‘ reasonable demands or expectations’: Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists as a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455.
It is not to be determined upon theoretical considerations. It is ‘the actual fact of dependence or reliance on the earnings of another for support that is the test’: Per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. ‘The standard of support is set by the parties themselves’ (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other."

42 This passage emphasises the factual nature of dependency, be it financial or otherwise.

43 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The Court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

44 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again conceded that the meaning of dependency. At page 346 the Court had the following to say:

“ I would respectfully disagree with the Master in both respects. The word ‘dependent’ is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.
But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to be to be a misuse of the language.
This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on some one for what is needed’.
If the correct view were that the context of the statute requires a limitation of the word to ‘financial or material’ matters as McLelland J said in Re Fulop Deceased or to ‘other forms of dependence analogous to the distinct from financial dependence’ as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfies the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for there well being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

45 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), his Honour Meagher JA, although in the minority, further discussed dependency and described it as ‘financial, economic or material dependency, not a mere emotional dependency’. Important in that case the majority held that the word ‘partly’ in the phrase ‘partly dependent’ does not mean ‘substantially’ but meant ‘more than minimally’ or perhaps ‘significantly’.

46 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

47 It is principally the provision of accommodation which would found dependency in this case. There was evidence that the deceased paid the bond or $480 on the plaintiff's new flat in 1988 and paid $400 for dentures on three occasions but this appears to be the only financial dependency linked directly to the deceased.

48 In respect of grandchildren and stepchildren, a question often arises as to whether they are dependent upon the deceased or their parent who is also staying with the deceased. The matter has been considered in several cases. For example: In Sherborne Estate: Vanvalen & Anor v Neaves & anor [2005} NSWSC 593 Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said:

“The following is a convenient summary of the principles which I understand to be applicable to determination whether a grandchild is an eligible person:
The authorities make it clear that a grandchild is not normally regarded as to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator has come to assume, for some significant time in a grandchild's life, a position more attuned to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see eg Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer (1999) NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O’Dea v O’Dea [2005] NSWSC 46.
The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799; MacEwan Shaw v Shaw (above).
Further, the fact that the testator occasionally or even frequently made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of section 6 (1) (d) . To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assume a continuing and substantial responsibility for the grandchild’s support and welfare: se eg Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (above); Pearson v Jones (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223.”

49 The quotation of Palmer J perhaps reflects the submissions that were made to him which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. He went on to say in respect of that period:

“I am unable to accept that the period of three months in 1976 when Ellen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of section 6 (1) (d) of the Act. My reasons are as follows:
First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased daughter, rather than as direct support and maintenance of Julia."

50 It was in reliance on these principles that led the defendant to submit that no dependency was available in the period from 1964 to 1966. That is probably true as the plaintiff's mother still had the responsibility to support the plaintiff when she was under 18 years of age.

51 There is, however, the period of four months in 1988 when the plaintiff and her two young children, aged 17 years and 6 years, were abandoned by her partner in Sydney. This was for a period of four months when the deceased and her mother provided accommodation which could not be described as minimal or insignificant and was a substantial benefit. In my view the plaintiff was dependent on the deceased at the time and accordingly is an eligible person.

52 It is necessary under s 9(1) of the Family Provision Act that the Court should first determine whether there are factors warranting the making of the application. The Courts have dealt with this on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between ‘factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are ‘factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1)(former spouses, and sometime dependent grandchildren all household members) are as such not generally so regarded. This suggests that the ‘factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but ‘refuse to proceed with the determination of the application'".

53 In Churton v Christian (1988) 13 NSWLR 241 the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added:

"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

54 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

55 As pointed out in Deven v Neale [2009] NSWCA 54 it is necessary to carefully look at the relationship over the whole period when considering section 9 (1) even though conduct in that period would also fall to be considered under section 9 (2) and (3).

56 I have already set out examples in this judgment of the periods when the plaintiff stayed with the deceased and the circumstances in which they arose. The taking in for nurturing after a sole parent pregnancy and after a relationship breakdown are powerful indications that the relationship was a substantial one as far as the deceased was concerned. They were not the only visits as the plaintiff gave evidence of she and the children travelling on weekends to see the deceased and her mother at Mittagong up until 1982. Although the extent of this was challenged due to the fact that the deceased and his wife played competition bowls, they were often away but I will accept there were some visits in this period. There were also in this period visits on most Christmas days. The deceased’s children visited on Boxing Day.

57 This is all inherently likely because in 1983 the deceased made his will in which the plaintiff was one of the default beneficiaries. This is an important indication, even though the clause included all children and step-children. If he had been unhappy he could have excluded her. From 1984 of course the plaintiff was away in Queensland.

58 It is interesting to note that the deceased was prepared to be the godfather for the plaintiff’s youngest daughter Michelle who was christened in his own Catholic Church, this event occurring on 10 April 1983.

59 It is true that after the death of the plaintiff’s mother the deceased changed his will in favour his own children.

60 In the period before the death there was correspondence, principally from the decease’s wife, in which she would also makes small amounts available to the plaintiff

61 Unfortunately, later in the deceased life the plaintiff’s habit in asking for assistance became too much for him and in 2002 the defendant wrote giving a copy of the will of Violet and asked the plaintiff to stop asking the deceased for money as it was causing him distress. I accept that the requests did cause him stress; indeed, so much that he asked a solicitor to write to the plaintiff concerning her requests for copies of her mothers will and asking her not to write again.

62 There seems to have been little contact thereafter except that the plaintiff spoke to the deceased two weeks before he died. I mention that because of her injuries to her back in the 1984 car accident it was difficult for the plaintiff to travel from Queensland, and this was also hampered by her difficult financial situation. She only ever had Social Service benefits.

63 It seems to me that although the plaintiff was a trial to the deceased, particularly later in his life, he was quite involved at earlier stages. The involvement was that which one would normally show towards a natural child and so in my view on the traditional basis I am satisfied there are factors warranting the making of the application.

64 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 that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an 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 similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v 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

65 The plaintiff is single, aged 61 years, and lives with her son Raymond, who is 37 years of age. He is on a disability pension and his mother is on an age pension. Their total pension is $678.10 per week, and their rental after rental assistance is $395 per fortnight. They find it difficult to exist on the balance remaining.

66 They have minimal possessions and no car. Their possessions are worn out. It is unlikely the plaintiff will ever work given her age, history and injuries.

67 The plaintiff did not, of course, contribute to the deceased’s estate. I have also referred to her relationship with the deceased. The problems since 2002 were as a result of the plaintiff bothering the deceased for money and her ongoing concerns with the will of her mother. That problem was partly caused by the deceased denying that her mother had a will. I do not regard these matters as sufficiently serious to cause me to refuse or greatly reduce the plaintiff’s claim.

68 It is also necessary to consider the situation in life of others having a claim on the penalty of the deceased. They are, of course, his two daughters.

The situation in life of Joyce Mary Cook

69 Mrs Cook is 72 years of age, married, with no dependent children. They own their own home at Woonona worth $500,000. They have two cars and cash savings of about $7,418. Her husband has a superannuation account in which they have a sum of $228,813. Mrs Cook still works as a clerk earning net $1,170 per fortnight. This just covers their outgoings and if anything significant arises they have access to their superannuation.

70 Mrs Cook, although 72 years of age, intends to keep working and her husband is retired. She does not now how long she will be wanted in her present employment.

71 She, like her sister, had a good relationship with their father. They visited and saw him at important times. In particular both moved to live in with the deceased to help him in his last years of his life.

The situation in life of Valerie Joan Sangster

72 Mrs Sangster is 73 years of age, widowed, with no dependent children. She lives in a small one bedroom Housing Commission unit at Mittagong New South Wales. The only assets are household effects and she has debts of $6,147. She lives on the aged pension of $546 80 per fortnight. She is in reasonable health, except for epilepsy for which she takes medication.

73 I have mentioned her relationship with her father and she, like her sister, has not contributed to the estate of the deceased.

Discussion

74 It is necessary to see how the plaintiff has been left without proper provision for her maintenance, education and advancement in life.

75 The plaintiff’s main concern is the frugal existence she has and the fact that she finds it difficult to cope with her rent. She identified in her affidavit evidence the following matters in respect of which she would like assistance:

Reserve fund for rent $6,000.00
Second-hand car $10,000.00

Furniture $3,000.00
Clothes $1,000.00
Computer $2,000.00
TV, DVD and music player $1,400.00

Total $23,400.00

76 So far as the car is concerned, she does not drive and neither does her son, who does not want to, so that can be put to one side. She would also like to improve her food and ability to eat and asks for $200 per week to improve the quality of her and her son's life. In that regard, of course, this application is only in respect of her; she cannot make a claim of her son's behalf. He is responsible for himself and must make ends meet on his own. No estimates based on the actual costs were given, nor have I been given any figures based on appropriate tables. Overall she asks for a fund for contingencies and for a legacy of up to $80,000.

77 Plainly the house will have to be sold, if only to cover the costs of this application and to repay debts. Allowing selling costs of $10,000 and the expenses including the defendant’s costs for two days, then the distributable estate is likely to be $247,000.

78 The defendants have suggested that if any order were to be made that it should be charged, together with all costs, on the share of the estate passing to the defendant because of the difficult situation of Mrs Sangster. That does not mean that I should only have regard to that share passing to the defendant.

79 I should have regard to both the beneficiaries, and particularly I note the difficult situation of Mrs Sangster, which is almost as bad as that of the plaintiff.

80 The impact of costs on this estate has the potential to be large. Those of the defendant are quite modest, $15,050 for the solicitor and $11,600 for counsel and disbursements prior to today’s hearing. For two days I would estimate $30,000. The plaintiff’s solicitor’s fees were substantially greater than the $16,500 which the plaintiff purports to charge and this includes an uplift factor of 25%. Counsel’s fees prior to trial were said to be $23,000 but reduced to $15,000 or $19,000 for a two-day hearing. The total fees, including $2,500 for disbursements, comes to $38,000. The estate is only $240,000 and a half share is $120,000.

81 In Day v Perpetual Trustee (unreported 3 August 2001) I dealt at length with why the Court will not usually allow the charge of an uplift factor. It is a financing cost which should not be passed on to the residuary beneficiaries.

82 The problem in this case can probably be resolved by an order capping the plaintiff's costs. As to this see my comments in Dalton v Paull (No 2) [2007] NSWSC 803.

83 In my view, and having regard to all relevant factors, I think it is appropriate for the plaintiff to have some modest legacy. I think an appropriate amount is $30,000. The case has gone on the two days and, accordingly, I think it is appropriate to cap the costs at $30,000 to take account of the nature of the small estate and to avoid any uplift factor in those solicitor’s costs.

84 In the summons in order 3 there was an order that the plaintiff receive the deceased mother’s jewellery and watches. The first thing to note under this heading is that under the will the plaintiff is not entitled to receive those and, in any event, the executor has distributed those items, on the evidence before me, to the plaintiff's sister. There is no, therefore, ability to make any order in respect in respect of that part of the summons.

85 I do note, further, that there apparently does seem to be a photograph album which has some personal significance for the plaintiff and, although I will not express any orders, I express the hope that the executor might make that available if there are photographs in it that are appropriate to be given to the plaintiff.

86 The orders I make are as follows:

1. That the plaintiff received a legacy out of the estate of the deceased in the sum of $30,000 within three months of today's date.
2. I order that the plaintiff's costs on the ordinary basis, not including any uplift factor and not to exceed $30,000, and the defendants costs on an indemnity basis, be paid or retained out of the estate of the deceased.
3. Interest to be payable at the rate provided for under the Succession Act if the legacy is not paid within three months on and from that date.
4. I otherwise dismiss the summons.
5. I order the exhibits be returned.

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