Christodoulou v Papageorge

[2010] NSWSC 1434

CITATION:	Christodoulou v Papageorge [2010] NSWSC 1434 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/11/2010
JUDGMENT DATE :	16 December 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
DECISION:	In these circumstances the trust in clause 4 of the deceased’s will should be varied to provide for: (a) A right to substitute alternative accommodation for the Cox street premises; (b) A continuance of Anthony’s interest in the Cox Street premises or in alternative accommodation to be held in trust for Anthony until his death, or if June is to survive Anthony, to be held in trust until June’s death, at which time the interest will pass equally to Melissa and Tahlia.
CATCHWORDS:	Family Provision. Application by son who was given a life interest. Orders for provision by way of Crisp order and an increased share of residue.
PARTIES:	Anthony Christodoulou v Katerina Papageorge (Estate of Neoclis Christodoulou)
FILE NUMBER(S):	SC 2009/291349
COUNSEL:	Mr L Ellison SC for plaintiff Mr J Smith for defendant
SOLICITORS:	Robert Mann Solicitors for plaintiff Emmerson and Emmerson for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 16 December 2010

2009/291349 ANTHONY CHRISTODOULOU v KATERINA PAPAGEORGE (ESTATE OF NEOCLIS CHRISTODOULOU)

JUDGMENT

1 His Honour: This is an application under the Succession Act 2006 in respect of the estate of the late Neoclis Christodoulou who died on 29 June 2009. The deceased’s wife had predeceased him and the plaintiff, Anthony Christodoulou and the defendant, Katerina Papageorge, who are respectively his son and daughter, survived him. Melissa Christian is the daughter of Anthony and she has taken her mother’s maiden name. Theano Papageorge is the daughter of Katerina.

Will of the deceased

2 The deceased made his last will on 16 February 2003. He appointed his children as executors but the plaintiff renounced and Katerina is the executor who has taken out probate.

3 At the date of his death, the deceased owned two properties in Cox Street, Windsor. I will refer to the property in which Anthony resides as the Cox Street premises and the second property as the second Cox Street premises.

4 In clause 3 of his will, the deceased gave the second Cox Street property to Katerina and a sum of money equal to the difference between the value of the two properties – it being expected that Anthony’s Cox Street property would be more valuable than the deceased’s Cox Street property.

5 In clause 4, he gave Anthony and his family the right of residence at the Cox Street property until Anthony’s death. Thereafter the property was to be held in trust for Melissa, Anthony's daughter. The deceased gave some Cyprus real estate of little value to Katerina and the residue of his estate was divided equally between his daughter, his son, and their children Theano and Melissa.

Estate of the deceased

6 Valuations of the properties were tendered in evidence as well as a market appraisal. I will put the market appraisal to one side and note that the valuation of Anthony’s Cox Street property was $310,000 and that of the second Cox Street property was $290,000. The other assets in the estate consist of cash of $335,192.78 and shares of $12,800.84.

7 The liabilities in the estate total $41,095.54. The plaintiff’s costs are estimated at $37,250 on an indemnity basis and on a party and party basis $32,800. The defendant’s costs are estimated at $40,400. The net estate after allowance of these costs on a party and party basis, if that is appropriate, will be $833,698.

History

8 The deceased and his wife had two children, Anthony Christodoulou born in July 1940 and Katerina Papageorge (nee Christodoulou) born in December 1944.

9 In 1952 the deceased migrated from Cyprus to Australia and a few years later his family followed him to Australia. Anthony worked in his father’s cake shop in Windsor from 1957 until 1973. He married in July 1969 and his daughter Melissa born in June 1971. He and his wife and Melissa lived in a house at George Street, Windsor until the family split up in 1975. Anthony left the house and his ex wife. Melissa remained in the home until it was sold a few years later. The proceeds of sale were divided between Anthony and his ex wife. In 1983, Anthony married his present wife, June Fay Leonard.

10 In 1987, the wife of the deceased died. In October 1993, the deceased purchased Cox Street, Windsor, in which he allowed Anthony and June to live. When they moved in he said, “Here are the keys. One day this house will be yours.” From that time they paid rent of $120 a week and later $130 a week for the property. The amount was below the market rental but they had to maintain the property. In 1994, the deceased bought the second property in Cox Street, Windsor, which the deceased rented out.

11 In 2000, Katerina Papageorge and her husband moved to Cyprus.

12 In 2001, the deceased sold his house at Church Street, Windsor and moved in with Anthony and June. Later that year the deceased moved into a nursing home.

13 The deceased made his last will in February 2003. Apparently he had made an earlier will in which he had provided for Anthony and Katerina to each have one of the two Cox Street properties absolutely.

14 The deceased died on 29 June 2009 and probate was granted in October 2009. The summons for provision under Succession Act was filed within time on 12 November 2009.

Eligibility

15 Anthony is an eligible person. In applications under the predecessor of this Act the High Court has referred to the two stage approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210:

“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. The first stage has been described as the "jurisdictional question". ….

….

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 Ltd [1938] AC, at p 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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 (1951) 82 CLR 645, 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

16 Anthony is aged 70 and is married to his wife, June, aged 65 years. They have custody of their great granddaughter, Tahlia, who has been placed in their care pursuant to an order of the Children’s Court. The order is permanent and they are responsible for her upbringing. She is now aged six.

17 Anthony owns a 2003 model Holden Commodore vehicle valued at about $10,000. He and his wife have $4,000 in cash and household furniture and contents of about $10,000 to $20,000. Anthony receives a fortnightly pension from Centrelink of $530. June receives $410 per fortnight by way pension and $462 per fortnight by way of a carer allowance for Tahlia. The total income is $701 per week for the household, which is expended by the household expenses.

18 Anthony suffers from very poor vision and he has had to relinquish his driving licence. Unfortunately his vision will continue to deteriorate and it cannot be rectified.

19 Tahlia attends a special class at school because she suffers moderate intellectual delay. She is too young at this stage to have a full assessment of her learning difficulties and this will occur next year.

20 June suffers from hypertension and has been prescribed a number of medications.

21 The plaintiff had a good relationship with his father throughout his life. He worked with him in his cake shop for many years until 1973 when he took a job with Coles where he stayed until he retired in 1996. It will be recalled that the deceased lived with Anthony and June at one stage in 2001. Unfortunately there were problems with the relationships at that stage, which related to the deceased’s personal hygiene. In due course the parties resolved this problem and the relationship continued.

22 Anthony made a decision not to make provision in his will for his daughter Melissa and the deceased did not agree with this decision.

23 I will now consider the situation of others who have a claim on the bounty of the deceased.

Katerina Papageorge

24 Katerina is aged 66 and is married. Her daughter, Theano, is not dependant upon her mother and in fact Katerina is dependent upon her daughter for accommodation. Katerina and her husband, Kiriakos, live in one of her daughter’s Cyprus holiday villas. Katerina and Kiriakos each receive a pension of $480 per fortnight, which appears to be their only income. Apart from savings of $17,000, they own a property at Bennett Street, Curl Curl, valued at $840,000, furniture valued at approximately $25,000 and a nine year old Honda four wheel drive valued at approximately $10,000. Under the will she receives the second Cox Street property and a sum of $20,000.

25 Katerina left school at 15 and worked full time in the deceased’s cake shop. She lived with her parents until she was 21 years old, when she married and moved to the marital home at Curl Curl.

26 Katerina has a second daughter, Anna, who was born in 1975. She suffers from microcephaly and is severely disabled. Since Anna’s birth, Katerina has suffered from depression, which at times has been severe and has required hospitalisation. Anna’s disability appears to have had a financial impact on Katerina’s family due to medical costs and Katerina’s subsequent inability to work for a number of years.

27 Katerina has suffered from depression for the last five years and her medical costs in relation to her illness equate to $22,530. Katerina’s husband Kiriakos has required two knee operations, one back operation and two prostate operations in the past five years. Katerina and Kiriakos’ pharmacy and medical expenses equate to $6,000 a year. Katerina only travels to the local town about once a month and it seems unlikely that she will travel to Australia to live in her home.

Theano Papageorge

28 Theano, Katerina’s daughter is aged 41 and married. She and her husband have two children, one aged four years and a baby son a few months old. Her husband is in employment and earns a salary equivalent $49,000. Theano manages the holiday rental villas she owns and the villas have been in the family for some time. She and her husband have provided one of the seven holiday villas to Katerina and her husband as a permanent residence. Her income from the holiday rentals has seen a decline in the past three years due to the economic crisis that is particularly affecting the United Kingdom, which is her main client base. The villas themselves are worth $3,080,000. The family own several cars worth approximately $24,000 and they have modest savings of some $15,000. Theano and her husband presently have debts on the properties of $210,210.

29 For the year 2009, the rental from the villas was $85,436 and the actual expenses incurred in running the business were $65,390. They have loan repayments totaling $34,039, creating an overall loss of $13,993. The expenses in a normal year, which include the repayment of one loan, amount to $44,048.

30 In addition Theano incurred expensive medical expenses during the course of her pregnancies.

31 Theano had a good relationship with the deceased and she was someone the deceased trusted: he gave her his power of attorney and asked her to assist with his affairs.

Melissa Christian

32 Melissa is aged 39. She has two daughters aged four and two years who attend preschool and day care respectively two days a week. She is divorced from Steven Chandler, the father of her children and they are in the process of resolving their property settlement. Mr Chandler lives in the family home and Melissa is waiting for the home to be sold or to be bought out by her husband. She expects a property settlement of $500,000 less legal fees of $60,000. Her living expenses were $1,882.90 per fortnight and her income was $1,550.24 per fortnight.

33 However, her rent has increased to $450 per week and child support has also increased to $814 per month. Thus, her fortnightly income is $1,722.86 and her expenses $1,925.93. Her part time work as a school teacher does not support her and the children and it is difficult for her to increase her work levels this year, although she hopes she will be able to do so next year.

34 Earlier this year Melissa was diagnosed with breast cancer. She has undergone a mastectomy and has had three months chemotherapy to be followed by a further twelve months of medicated treatment. She is still in the early stages of treatment but there is no evidence that the cancer has spread.

35 Her medical diagnosis has adversely affected her income and her medical expenses have increased. She has now used all her available sick leave and holiday leave as a result of her illness.

36 When her parents divorced Melissa went to live with her mother although she had regular contact for some time with her father. It is apparent that when Anthony met his new wife there were difficulties between his new family and Melissa. Anthony paid $25 per week child support for Melissa until she was fourteen, when she took a part-time job in a supermarket to help pay for her school fees and living expenses. She continued to work to support herself right through her undergraduate and postgraduate degrees. She has a Bachelor of Arts degree, Diploma in Education and a Master of Education in English, which support her in her profession as a school teacher.

37 Plainly she has had little contact with her father over the last 20 years and the last time she visited him when she was 21 years old.

38 So far as Melissa’s relationship with the deceased is concerned there was contact, although it was not substantial, between 2001 and the deceased’s death. She saw him on two occasions. One occasion she took him to her home for a weekend. From the evidence, it is apparent that the deceased wanted Melissa to have some property because he considered that Anthony’s decision to leave Melissa out of his will was unjustified.

Discussion

39 It is necessary to see how Anthony says he has been left without adequate and proper provision for his maintenance, education and advancement in life. He suggests that he should have the fee simple in the Cox Street house and that he receive $125,000 to cover contingencies, a stove at a cost of $800, replacement cost of a fridge at $1,400 and a replacement car at $30,000.

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

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

"A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing the proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceedings of the legacy."

42 He appears to be the only member of the court to have adverted to this aspect.

43 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1 that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was one of the majority in White v Barron at pp 438-440, went to some lengths to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application.

44 In Elliott v Elliott (New South Wales Court of Appeal, 24 April 1986, unreported), Glass JA said in reference to the above quoted statement:

"The statement there was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased. The residuary beneficiaries here have none and it seems to me that no fairness is owed to them."

45 McHugh JA agreed with his judgment and the President agreed substantially with the reasons given by Glass JA. He added nothing on this aspect. I do not think that it can be said that the Court of Appeal has adopted the statement of Mason J in White v Barron. All that can be said is that they distinguished the situation before them.

46 By the late 1980s the Judges in this Division were taking a slightly different view. For instance, in Court v Hunt (14 September 1987, unreported) Young J said:

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

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

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

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

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

" 2. In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:
(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor , above, 458; Hunter , above, 576;
(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testators household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher, Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.
(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70;
(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;
(e) Considering what is “proper” and by inference what is “improper” as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252."

50 When talking of the need to provide a house and a sum for contingencies Kirby P is clearly referring to passages in Luciano v Rosenblum (1985) 2 NSWLR 65. In the judgment of Powell J at first instance in Elliott v Elliott (New South Wales Supreme Court, 18 May 1984, unreported) his Honour said that such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. This seems to have been generally adopted over the years in many subsequent cases.

51 In Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 47 Sheller JA had the following to say:

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

52 In Salmon v Blackford [1997] NSWCA 274, the Court of Appeal was dealing with the case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:

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

53 No reference was made in either of these cases to the comments of Mason J in White v Barron. In Permanent Trustee v Fraser there were no competing claims by children of the first marriage. In Salmon v Blackford there were children of the first marriage but they appeared well off and their claims were thus minor.

54 Recently in Hertzberg & Anor v Hertzberg [2003] NSWCA 311 McColl JA referred with approval to Golosky v Golosky and said [34]-[35]:

"34.... section 9 (2) of the Family Provision Act directs the Court to consider the issues of jurisdiction and the exercise of discretion at the time of the proceedings, not the time of the will, and in this case the deed, were made. In reaching his decision the Acting Master took into account community expectations. He referred to Young J's observations in Blackford v Salmon , unreported, 27 July 1994, in which his Honour said:
'It seems to that for a widow of a 30 year marriage who has lived in the house for some time and who continues to wish to live there, the expectation in the community would be that a wise and just testator would have left her the house in fee simple.'

35. His Honour's judgment recognized the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors."

55 This also was a case where there was no competing claim. It seems to me that the comments of Mason J in White v Barron should still be given consideration when one is considering a situation of competing claims.

56 Recently, in O'Leary v O'Leary and Eccles [2010] NSWSC 1347, Hallen AsJ considered making a provision for a plaintiff by way of Crisp order and small capital sum and stated:

“ [77] It should be noted that Hertzberg v Hertzberg and Blackford v Salmon was each a case in which there were no competing claims. A different principle may be applicable where there are competing claims: Robertson v Pearce [2010] NSWSC 124, per Macready AsJ at [45].

[78] Not infrequently, the jurisdiction of the court to interfere with the deceased’s testamentary intentions, comes to be exercised upon the application of a spouse, of advanced age, and in circumstances where tensions arise between other family members as to the real probable beneficiaries in the event that an order be made and that the applicant’s remaining number of years may prove to be relatively short. Whilst such tensions sometimes provide, at least, part of the backdrop and reasons for the respective stances taken in the litigation, the task of the court is, no more and no less, than to exercise its jurisdiction in accordance with the Act ( Hertzberg v Hertzberg per Einstein AJA at [44]).

[79] This tension often presents a fundamental division on the question whether adequate provision requires an interest less than an absolute interest, namely a life interest, or Crisp order, in the property of the deceased.

[80] What is described in the cases as a “Crisp order” is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported), except in part, in Mason and Handler’s Succession Law and Practice New South Wales at p 13580 at [9433]). Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant’s benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”: Court v Hunt NSWSC, 14 September 1987, unreported, cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109 at [47]–[48].”

57 As is apparent, the question of the appropriateness of a life estate most frequently occurs in the context of widow or widower applications. Here we have an application by a son. In McGrath v Eves [2005] NSWSC 1006, Gzell J referred to the court’s approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

“ [67] When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.

[68] In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]–[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.

[69] White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.

[70] It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.”

58 The large estate that existed in Mayfield is not present in this case and there are other people who the deceased wished to benefit, particularly his granddaughter Melissa. He was perhaps motivated in part by a desire for the estate not to pass to June but the deceased also strongly believed that a share of the estate should pass to Melissa.

59 Melissa has of course made no claim and under the will she takes an interest in remainder on Anthony’s death. His life expectancy is apparently 15 years. She also takes a quarter share of residue, which after allowing costs on a party/party basis and after paying the estate’s liabilities would be $58,424.52.

60 Her situation is uncertain at the moment both in terms of her prognosis and the resolution of her property settlement. As I have indicated she does not earn sufficient to support herself and her children. This situation may deteriorate further if she needs time off work for treatment.

61 Melissa’s interest in the residue is thus necessary to give her some support in the difficulty she faces at the moment in making ends meet. Her interest in the remainder of the estate gives her some buffer for the future to help her when her children complete their secondary education. The evidence does not address a time frame for the resolution of her property dispute. However, it is likely that any capital that she receives will be used to purchase accommodation for herself and her children.

62 Anthony now has a difficulty, which was unexpected. That is the fact that he and June now have the permanent responsibility of Thalia who is six years of age.

63 It is unlikely that Katerina will return to Australia. Although she relies on her daughter for accommodation, she has a house worth $840,000, which is a very substantial asset that would help provide for any uncertainties in the future.

64 So far as immediate needs are concerned it seems appropriate that Anthony should have some more cash to help in the short term. In the circumstances and noting the particulars of the other residuary beneficiaries, I think it appropriate for the plaintiff to receive the share of the residue passing to his sister Katerina and that the gift in clause 3 of a sum of money equal to the difference between the values of the Cox Street properties will be restricted to the terms of that clause.

65 So far as the request for the absolute interest in the Cox Street property is concerned there are a number of matters to note. It is a limited interest that does not allow the capital to be realigned and applied to the purchase of some alternate accommodation, such as nursing home accommodation. It also is limited to the life of the plaintiff. His wife may well need accommodation, particularly as she too has been given the care of Tahlia. These deficiencies can be corrected, but Anthony and June have responsibilities to look after Tahlia into the future. The deceased’s wish to benefit Melissa should be borne in mind.

66 In these circumstances the trust in clause 4 of the deceased’s will should be varied to provide for:


(a) A right to substitute alternative accommodation for the Cox street premises;

(b) A continuance of Anthony’s interest in the Cox Street premises or in alternative accommodation to be held in trust for Anthony until his death, or if June is to survive Anthony, to be held in trust until June’s death, at which time the interest will pass equally to Melissa and Tahlia.

67 The parties can addresses the details of the orders including, if they wish, any necessary change of trustees and I direct them to bring in short minutes.

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17/12/2010 - Delete "the" after "clause 3 of" - Paragraph(s) 64