Cobb v Cobb
[2012] NSWSC 97
•20 February 2012
Supreme Court
New South Wales
Medium Neutral Citation: Cobb v Cobb [2012] NSWSC 97 Hearing dates: 9 February 2012 Decision date: 20 February 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Order that the time for making the Plaintiff's application be extended up to and including 22 September 2011, the date of the filing of the Summons.
(b) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that in lieu of the provision made for her in the Will of the deceased, she is to receive the whole of the deceased's estate after payment of the liabilities, costs and expenses of sale of the Macksville property, as well as the legal costs and disbursements of the proceedings.
(c) The Plaintiff's costs and disbursements assessed at $30,000 (inclusive of GST) to be paid out of the estate of the deceased.
(d) The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $11,565, to be paid out of the estate of the deceased.
(e) Any subpoenaed material may be returned.
(f) Note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount referred to in order (c) above.
Catchwords: Family provision order under Chapter 3 of the Succession Act 2006 - Plaintiff spouse of deceased - Summons filed outside prescribed period - Whether to extend time for making application - Whether provision inadequate for maintenance and advancement in life of Plaintiff - Competing claims of grandchild and great-grandchildren Legislation Cited: Family Provision Act 1982
Succession Act 2006Cases Cited: Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Cooper v Dungan (1976) 50 ALJR 539
Durham v Durham [2010] NSWSC 389
Foley v Ellis [2008] NSWCA 288
Gorton v Parks (1989) 17 NSWLR 1
John v John [2010] NSWSC 937
Luciano v Rosenblum (1985) 2 NSWLR 65
McKenzie v Topp [2004] VSC 90
O'Loughlin v O'Loughlin [2003] NSWCA 99
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)Category: Principal judgment Parties: Yvonne Margaret Cobb (Plaintiff)
Michelle Yvonne Margaret Cobb
(Defendant)Representation: Mr R Wilson (Plaintiff)
Ms E Glover (Defendant)
Turnbull Hill Lawyers (Plaintiff)
Marsdens Law Group (Defendant)
File Number(s): 2011/311509
Judgment
The Application
HIS HONOUR: Yvonne Margaret Cobb ("the Plaintiff"), who is the widow of William Cobb ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act").
Since the deceased died after 1 March 2009, the Act applies. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
The Plaintiff commenced the proceedings by Summons filed on 22 September 2011, which is outside the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). She seeks an order that the time for commencing the proceedings be extended until the date of the Summons.
Michelle Yvonne Cobb, the Defendant named in the Summons, is one of the children of the deceased and the Plaintiff and the executor appointed in the Will of the deceased.
There is no question, in the present case, of any provision being sought out of notional estate of the deceased.
The hearing took place on 9 February 2012. The affidavits relied upon were read without objection. No deponent was cross-examined. Written submissions were provided to me in accordance with directions and counsel spoke, briefly, to them. The case was a straightforward one and the legal representatives of each party are to be commended for the way in which the proceedings were conducted.
I made orders and indicated that I would publish reasons in due course. These are the reasons.
Background Facts
The following facts are uncontroversial.
The deceased died on 19 August 2010. He was then aged 68 years.
The deceased left a Will that he made on 13 April 2010, probate of which was granted, on 16 December 2011, by the Supreme Court of New South Wales, to the Defendant.
The Plaintiff and the deceased were married on 12 October 1962. Accordingly, at the date of the deceased's death, they had been married for almost 48 years. It was the first marriage of each of them.
The deceased's Will, relevantly, provided a specific devise of real property at Macksville ("the Macksville property"), to the deceased's grandson, Joshua William Cobb, the deceased's great-grandson, Liam Christopher Cobb, and his great-granddaughter, Ella Harlow Cobb, as joint-tenants, upon the youngest of the three attaining the age of 25 years. Upon attaining the age of 21, the share of income to which each was entitled from the Macksville property, was to be paid to him, or her, on a quarterly basis.
The residue of the estate was left to the Plaintiff absolutely.
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, value of about $170,641. The estate was said to consist of the Macksville property ($170,000) and money on deposit ($641). The Inventory of Property also reveals that the deceased and the Plaintiff held no property jointly.
The deceased and the Plaintiff did not live for any part of their married life in the Macksville property. The deceased inherited the property in 2008. He spent some time renovating it, following which it was rented (from about 2009).
In an affidavit, sworn by the Defendant on 7 February 2012, the nature and value of the deceased's estate was stated slightly differently. The Macksville property was said to be worth between $150,000 and $170,000; the amount in the bank was estimated to be $7,000; there was an amount of $50 in an account identified as "a business account for AGR Industries trading as Yvonne Cobb", and two cars, one with a value of $2,000 and the other of no value.
The parties agreed that, at the date of hearing, the distributable estate consists of only the Macksville property or the net proceeds of sale thereof, and $2,760, which amount is held in the Defendant's solicitors' trust account. If the Macksville property is sold, which the parties agree must occur, there will be costs and expenses of sale, including agent's commission and legal costs. The Defendant's solicitor has estimated the legal costs of the conveyance to be $1,620. The agent's commission will be calculated on the basis of the sale price.
The outstanding liabilities of the estate, other than the costs of these proceedings, are the rates outstanding to the Nambour Shire Council ($4,190) and the legal fees for obtaining Probate ($3,460).
The parties agree that in the circumstances, there will be no residuary estate to pass to the Plaintiff.
I am asked to decide the case upon the basis that the value of the net distributable estate (subject to the burden of costs of these proceedings) is about between $140,000 and $160,000.
In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.
The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be in the order of $45,686 (inclusive of GST and upon the basis of a one-half day hearing). The costs and disbursements of the Plaintiff, calculated on the ordinary basis, are said to be $40,736. It is said that the costs include "professional fees including attendance on the plaintiff at Leppington, obtaining orders for an expedited hearing, preparations for and instructing on hearing and finalising claim" ($23,500) and GST ($2,350). Counsel's fees ($10,000) are "for briefs on notice of motion and hearing". Other disbursements ($700) are calculated upon the basis of "travelling expenses from Leppington" ($100) and "sundry expenses including photocopying, faxing, other document production charges, postage and telephone charges" ($600). Other filing fees (not paid) total $3,116.
Ultimately, the Plaintiff's counsel submitted that a lump sum order for her costs and disbursements that should be allowed out of the estate was $30,000 (inclusive of GST). He identified some features of the preparation of the case, including interlocutory proceedings for an expedited hearing, which he said justified that amount.
I was also informed, from the bar table, that the Plaintiff's solicitors had agreed with the Plaintiff, that they would not seek any additional amount from her and that, in those circumstances, she was content to pay the amount sought by way of costs and disbursements.
The Defendant, initially, submitted that the Plaintiff's costs and disbursements should be limited to about $11,000. However, after hearing the Plaintiff's submissions, counsel did not wish to be heard further in opposition to the order that was being sought.
In the circumstances, particularly where the Plaintiff agreed with the amount sought by her solicitors for costs, I am prepared to make such an order. There is no doubt that this agreement will enable the winding up of the estate to occur without any substantial delay.
The Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one-half day hearing), were estimated to be $11,565. The professional costs have been assessed at $5,500; GST at $550; counsel's fees at $3,500; travelling and sundry expenses at $165; and a hearing allocation fee of $1,850.
The parties were able to agree that an order for the Defendant's costs, calculated on the indemnity basis, agreed at $11,565, should be paid out of the estate. I propose to make that order.
The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant, three other children of the deceased and the Plaintiff, being Christopher William Cobb, Ashleigh Warren Cobb and Jacinda Maria Cobb, and Joshua, the son of Jacinda, who was living with the deceased at the date of the deceased's death and was partly dependent on the deceased. Only the Plaintiff has commenced proceedings under the Act.
Joshua, who is the son of Jacinda, was born in February 2002 and is aged 10 years, and is a grandchild of the deceased; Liam, who is a child of Harlee-Jayne, was born in August 2006 and is aged 5 years; and Ella, who is also a child of Harlee-Jayne, was born in October 2008 and is aged 3 years. Liam and Ella are great-grandchildren of the deceased.
Each of the eligible persons (other than the Plaintiff) has been served with a prescribed notice. Only the Defendant has participated in the proceedings.
The Statutory Scheme - The Act
Eligibility
The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). I n New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a person who was the wife ... of the deceased person at the time of the deceased person's death": 57(1)(a) of the Act.
Extension of Time
Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.
The decision of the Court to extend time is a discretionary one. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The expression "sufficient cause" means sufficient explanation, or sufficient justification or excuse, for the application not having been made within the prescribed period (see Campbell v Chabert-McKay [2010] NSWSC 859 at [47] per White J).
Apart from the reason(s) for the lateness of the claim, the factors to which the Court often looks, include whether beneficiaries under the deceased's Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] - [58], per Macready AsJ, in which the relevant earlier cases are referred to.
The onus lies on the applicant to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the Court to determine the strength of the applicant's claim.
Adequacy of Provision
If eligibility is established, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.
Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".
Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of Family Provision Act 1982 ("the former Act").
Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.
The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.
In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act, at least in part, is new. It provides:
"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applica n t and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.
Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.
Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210):
"... 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 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."
And also by the comments of Callinan and Heydon JJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 (at 230-231):
"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."
Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:
(i) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or
(ii) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.
Section 65(1) of the Act requires the family provision order to specify:
(i) the person or persons for whom provision is to be made, and
(ii) the amount and nature of the provision, and
(iii) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(iv) any conditions, restrictions or limitations imposed by the court.
The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).
Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Applicable Legal Principles
In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the testator's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.
In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19; McKenzie v Topp [2004] VSC 90 at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system.
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269] - [271].
In Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 Powell J (as he then was) said:
"It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the 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."
The Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99 approved that "broad general rule".
The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision for the person seeking provision. Gleeson CJ observed in Vigolo v Bostin at [11], that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons.
I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.
Relevant Facts
I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I shall, first deal with the evidence relating to the extension of time.
The Summons was filed approximately one month out of time.
The explanation for not being able to file the Summons within time was said to be the financial circumstances of the Plaintiff, that is, that she was unable to pay the filing fee. The solicitors initially retained would not pay the fee as a disbursement and it was only when she retained her present solicitors that the Summons was filed by them.
There is no suggestion of any prejudice to the Defendant or to the beneficiaries or of any unconscionable conduct by either party.
At the hearing, the Defendant stated that there was no opposition to the making of an order extending the time for the making of the Plaintiff's application.
Unlike the former Act which permitted an order extending time to be made where the parties to the proceedings concerned have consented to the application being made after the end of that period ((s 16(3)(a)), the Act does not contain the same, or any similar, provision. However, the consent of the Defendant, or at least the lack of opposition, in my view, is a relevant consideration if the Court is satisfied of "sufficient cause" having been shown.
I now turn to other facts that have also been established by the evidence. I do so by reference to s 60 of the Act.
(a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship
The Plaintiff was the wife of the deceased at the date of his death. They had been, then, married for almost 48 years. There is nothing to suggest that their relationship was not happy and harmonious. In fact, the Plaintiff described their relationship as "a loving and happy relationship and we shared everything" from the date they were married.
From about 1998, the Plaintiff and the deceased lived in rented accommodation. The last rented property in which they lived was a property at Leppington, which is divided into two sections. They lived in one, together with Jacinda and Joshua. The Defendant and her two children, Tahlea and Stuart, lived in the other section. The deceased paid all of the outgoings on this property.
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
Leaving aside any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law.
However, an obligation, or responsibility, to make adequate provision for an applicant's proper maintenance and advancement in life is recognised in the case of a spouse.
The deceased did assume some obligations, or responsibilities, towards Joshua, Liam and Ella. He provided some financial assistance to Jacinda, for Joshua, including, amounts to pay dental expenses, and for some hospital and medical expenses when Joshua had his tonsils removed. He provided some clothing and furniture for Liam and Ella.
However, there were no legal obligations or responsibilities owed by the deceased to his grandchild or to his great-grandchildren.
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have dealt with this earlier in this judgment. On any view, on the basis of the agreement of the parties, the value of the deceased's estate is extremely small, particularly after the payment of unpaid liabilities ($7,650), legal costs of the sale of the Macksville property ($1,620) and the amounts that I have referred to as the costs and disbursements of each of the parties (in total $41,565). The net amount available to be distributed (excluding agent's commission) assuming a gross sale price of $170,000, is likely to be about $119,000.
There is no relevant notional estate.
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
(a) The Plaintiff, not surprisingly, is not employed and has no earning capacity.
(b) The Plaintiff receives a pension of $785 per fortnight, from which $82 is deducted in repayment of a Centrelink debt.
(c) The Plaintiff estimated her fortnightly expenditure at about $868.
(d) The assets, as at February 2012, that the Plaintiff has are furniture and personal items ($10,000) and jewellery ($2,000). She may have a small amount deposited in a bank account. She discloses no liabilities.
Joshua lives with his mother, Jacinda, who receives a pension. Both the Defendant and her daughter Tahlea Cobb also provide assistance including financial assistance to Joshua.
Liam and Ella live with their mother, Harlee-Jayne Cobb. Their mother meets their immediate financial needs.
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
The Plaintiff is not co-habiting with any other person. She lives in a refuge hostel in which she has her own room. The home is supervised by staff. The Plaintiff assists with domestic duties and cooking on a rostered basis.
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
The Plaintiff's health is poor. She suffers from a number of medical conditions for which she takes medication. She states in her first affidavit:
"93. My health is poor. I suffer from the following conditions and take the following medications:
(a)Melanoma on left foot
(b)Lymphoma
(c)Insulin dependent diabetes - Insulin
(d)Lichen Planus - Egocort, Diprosone
(e)Asthma - Ventolin, Seretide
(f)Hypertension - Monoplus, Veracaps
(g)High Cholesterol - Lipitor
(h)Gastro oesophageal Reflux Disease - Nexium
(i)Osteomyelitis
(j)Arthritis - Orudis
(k)Cataracts to both eyes
(l)Hearing impairment requiring hearing aids
(m)Recurring Staphylococcal infections - Antibiotics
(n)Biopsy taken from my lip in November 2011
I also take tramadol for severe pain as well as other medications from time to time.
94. The melanoma has been treated with surgical excision including excision of lymph nodes in my groin.
95. I have visual impairment as a result of cataracts on both eyes and as a result I am unable to drive."
Joshua suffers Attention Deficit Disorder and Oppositional Defiance Disorder. He attends upon a specialist every six months at the cost of $400 each visit.
Liam and Ella is each in good health.
(g) the age of the applicant when the application is being considered
The Plaintiff was born in January 1943 and is 69 years old.
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The Plaintiff made a significant non-financial contribution as a homemaker. She was responsible for the cooking, cleaning, washing, shopping and also for childrearing. She also maintained the deceased's business mail, accounts and banking.
In this regard, contributions as homemaker and parent, or by way of emotional support, are not less relevant, or less deserving, of weight than the material and financial contributions of the breadwinner. I recognise these contributions to the welfare of the family 'not in a token way but in a substantial way.
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
As the sole income earner throughout their marriage, the deceased did provide for the Plaintiff.
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
There is some evidence of the testamentary intentions of the deceased other than his Will, probate of which was granted. The deceased and the Plaintiff made mirror Wills in 1976 leaving everything to each other.
Prior to his death, the deceased told the Defendant that he wished his grandson and great-grandchildren "to have a good start in life" and that the Plaintiff's pension would be affected if he were to give her the Macksville property.
Also, at the time of making his last Will, the deceased instructed Kate Gould, of Marsdens Law Group, that he owed a creditor money and he thought that if he gave the Macksville property to the Plaintiff, her pension would be affected and the creditor would go after her. (There was no evidence of any creditors of the deceased other than as set out above.)
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
The evidence is clear that the deceased maintained the Plaintiff wholly before his death. She acknowledges that she was wholly dependant upon the deceased during their marriage.
(l) whether any other person is liable to support the applicant
Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff.
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
There is nothing to suggest any conduct of the type that might disentitle the Plaintiff to relief under the Act. There is nothing in her conduct, after the death of the deceased, which is relevant. The Defendant makes no criticism of the conduct of the Plaintiff.
(n) the conduct of any other person before and after the date of the death of the deceased person
Although the Plaintiff makes some criticism of the Defendant's conduct, to which the Defendant responds, the parties agree that this evidence is not relevant to the determination of the Plaintiff's case.
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not relevant in the present case.
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
There are no other matters that I consider relevant.
Determination
There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(a) of the Act.
In relation to the order for an extension of time, ultimately, the guiding factor is the justice of the application. I am satisfied that the time for the making of the Plaintiff's application should be extended. The delay in commencing proceedings is extremely short; there was an explanation for the delay, which I accept; there is no prejudice to the Defendant and no unconscionable conduct. That the Defendant did not oppose the Court extending the time is also important.
Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.
There is no dispute that, practically speaking, no provision will be made for the Plaintiff by the deceased's Will, as there will be no residuary estate. The Defendant accepts that adequate provision was not made by the Will of the deceased for the proper maintenance or advancement in life of the Plaintiff. This concession is properly made. Having regard to the length of her marriage, the Plaintiff's present financial circumstances, her age, her medical condition, and considering, also, the totality of the relationship between the deceased and the beneficiaries, that adequate provision has not been made is clear.
It is then necessary to consider whether to make a family provision order and the nature of any such order.
The Plaintiff seeks, in lieu of the provision made for her in the deceased's Will, the whole of the deceased's estate. This means, in the circumstances of this case, the balance of the proceeds of sale after payment of the liabilities to which I have referred and the legal costs of the proceedings.
The Defendant submits that any provision the Plaintiff receives should be after some monetary provision has been made for Joshua, Liam and Ella. However, it is equally clear that the estate is of insufficient size, after the payment of the liabilities and the costs referred to, to provide any of the other beneficiaries with a legacy.
In my view, the Plaintiff should receive, absolutely, the whole of the deceased's estate as sought by her. Her marriage to the deceased was a long, happy and harmonious one and one in which she made a significant contribution. She should not have to live in a refuge. She should not have to rely solely on a pension. It is only proper that, at her age and stage of life, she should be able to enjoy the remaining years without pressing financial concerns or worries. If she chooses to provide for Joshua, Liam and Ella, and/or other members of her family, she may do so, either during her lifetime or on her death. That will be a decision that she should have the right to make.
In the circumstances, I have made the following orders:
(a) Order that the time for making the Plaintiff's application be extended up to and including 22 September 2011, the date of the filing of the Summons.
(b) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that in lieu of the provision made for her in the Will of the deceased, she is to receive the whole of the deceased's estate after payment of the liabilities, costs and expenses of the sale of the Macksville property, as well as the legal costs and disbursements of the proceedings.
(c) The Plaintiff's costs and disbursements assessed at $30,000 (inclusive of GST) to be paid out of the estate of the deceased.
(d) The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $11,565, to be paid out of the estate of the deceased.
(e) Any subpoenaed material may be returned.
I note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount referred to in order (c) above.
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Decision last updated: 22 February 2012
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