Cropley v Cropley - [2002] NSWSC 349

No judgment structure available for this case.

CITATION: Cropley v Cropley [2002] NSWSC 349

CURRENT JURISDICTION: (1) Equity Division - Probate List
(2) Equity Division

FILE NUMBER(S): SC 100191/00; 4029/01

HEARING DATE(S): 12/03/02, 13/03/02

JUDGMENT DATE: 26 April 2002

PARTIES :

(1) Elizabeth Anne Cropley - Plaintiff
Richard Oswald Cropley - First Defendant
Susan Gai Thorley - Second Defendant
Peter Allan Rowlands Clinch - Third Defendant
Richard Oswald Cropley Cross-Claimant
Elizabeth Anne Cropley - Cross-Defendant
(2) Geoffrey David Cropley - Plaintiff
Elizabeth Anne Cropley - Defendant

JUDGMENT OF: Barrett J

COUNSEL : (1) Mr P.H. Blackburn-Hart - Plaintiff
Ms P.J. Gormly - Defendants
(2) Ms P.J. Gormly - Plaintiff
Mr P.H. Blackburn-Hart - Defendant

SOLICITORS: (1) Teece Hodgson and Ward - Plaintiff
Holding Redlich - Defendants
(2) Holding Redlich - Plaintiff
Teece Hodgson and Ward - Defendant

CATCHWORDS: SUCCESSION - informal wills - whether documents signed by testator after making formal will operate as amendments of will - EQUITY - assignments in equity - assignment of part of debt - no consideration - assignment valid in equity - FAMILY PROVISION - principles upon which relief granted - competing claims of widow and adult sons - failure by testator to make sufficient income provision for widow - no failure to make adequate provision for adult sons

LEGISLATION CITED: Conveyancing Act 1919
Family Provision Act 1982
Interpretation Act 1987
Wills Probate and Administration Act 1898

CASES CITED: Blackmore v Allen [2000] NSWCA 162
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Estate D M Edwards; Treacey v Edwards [2000] NSWSC 846
In the Estate of Gatt (unreported, NSWSC, 13 June 1990)
Gregory v Hudson [1999] NSWCA 221
King v Foster (unreported, NSWCA, 7 December 1995)
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
O'Loughlin v Low [2002] NSWSC 222
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Sayer v Sayer [1999] NSWCA 340
Shepherd v Commissioner of Taxation (1965) 113 CLR 385
Singer v Berghouse (1994) 181 CLR 201
In re Steel Wing Co Ltd [1921] 1 Ch 349
White v Barron (1980) 54 ALJR 333

DECISION: See paragraphs [36] and [97] to [100]

- 40 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 26 APRIL 2002

100191/01 – ELIZABETH ANNE CROPLEY v RICHARD OSWALD CROPLEY & ORS – ESTATE OF DAVID OSWALD CROPLEY
4029/01 – GEOFFREY DAVID CROPLEY v ELIZABETH ANNE CROPLEY – ESTATE OF DAVID OSWALD CROPLEY

JUDGMENT

Background

1 David Oswald Cropley (“Dr Cropley”), a retired medical practitioner, died on 8 June 2000 aged 73 years. He made a will on 22 November 1999. I shall refer to this as “the 1999 will”. Thereafter, he signed two other documents of relevance to these proceedings, one dated 23 January 2000 and the other dated 23 May 2000. I shall refer to these as “the January document” and “the May document” respectively.

2 Dr Cropley was, at the time of his death, married to his second wife, Elizabeth Anne Cropley, known as “Anne”. I shall refer to her as “Mrs Cropley”. Dr Cropley’s first marriage had been dissolved some time before Dr Cropley and Mrs Cropley met. They lived together, first at Saratoga and later at Point Frederick, throughout the period of nine years from their marriage until Dr Cropley’s death. Also surviving Dr Cropley were his four children by his first marriage, Richard Oswald Cropley, Susan Gai Thorley, Jan Robin Deane and Geoffrey David Cropley, all of whom are adults and themselves married. For ease of reference and without intending any disrespect, I shall refer to them by their first names.

3 Mrs Cropley seeks an order that probate of the 1999 will and the May document be granted to her and Richard. They, together with Mr Clinch, a solicitor, and Susan are the executors named in the 1999 will. Mr Clinch and Susan have renounced probate. Richard, for his part, seeks an order that probate of the 1999 will and the January document be granted to Mrs Cropley and him or, in the alternative, that probate of the 1999 will alone be granted.

4 Each of Mrs Cropley, Richard and Geoffrey seeks an order that provision be made for her or him out of the estate of Dr Cropley pursuant to s.7 of the Family Provision Act 1982. Geoffrey also seeks an order that the residential property at Point Frederick held, at the time of Dr Cropley’s death, by Dr Cropley and Mrs Cropley as joint tenants and occupied by them as their home be designated notional estate for the purposes of that Act.

5 It is necessary to deal first with the probate questions since an order under s.7 of the Family Provision Act can only be made in respect of an estate where a grant of probate or letters of administration has been made.

The 1999 will, the January document and the May document

6 There is no dispute that the 1999 will is a valid will and that it remained unrevoked at Dr Cropley’s death. The question in contention, so far as the grant of probate is concerned, is whether either or both of the January document and the May document, neither of which was executed in accordance with the formal requirements of the Wills Probate and Administration Act 1898, constitutes an amendment of the 1999 will by operation of s.18A of that Act. Given the content of both the January document and the May document, the answer to that question can affect only one aspect of the disposition and administration of Dr Cropley’s estate, being an aspect relevant to certain debts owed to him at his death by Richard and Geoffrey. Depending upon which, if either, of the January document and the May document operates as an amendment of the 1999 will by force of s.18A, a question of construction may arise for determination.

7 The relevance and meaning of the January document and the May document cannot be fully understood without some explanation of background. During his lifetime, Dr Cropley made loans to Richard and Geoffrey, each of whom was, at the time of advances, in the process of establishing or consolidating a business. Richard’s business, carried on through companies to be mentioned presently, involves the marketing of roof racks for vehicles. Geoffrey’s involves manufacture and marketing of winch handles for yachts. Each business was in need of capital in its formative and developmental stages. That need was met in part by resort to loans which each son obtained from his father. There are some differences in the evidence about the amounts outstanding at Dr Cropley’s death. In the end, however, I do not think it is seriously disputed that, at the time of the signing of the May document some two weeks before Dr Cropley’s death, the principal sum owed by Richard was $275,000 and the principal sum owed by Geoffrey was $155,000.

8 The 1999 will made specific provision in relation to sums owed to Dr Cropley by his children at his death. Clause 5 provided as follows:

“5.1 I direct my Trustees to set up a fund to consist of all monies owed to me by my children and any income added to the fund from time to time (‘the fund’).

5.2 I direct my Trustees to invest the fund as authorised by law or any clause in this Will;

5.3 The interest on the fund will be paid to my wife during her life;

5.4 On the death of my wife I direct that the fund be distributed equally between my children provided that if any child of mine has already died or dies before attaining a vested interest in the balance of the fund leaving children then those children shall on attaining the age of twenty one (21) years take equally the share to which their parent would have otherwise been entitled.”

9 It is convenient at this point to set out the terms of the January document and those of the May document so that they may be viewed in the immediate context of the clauses of the 1999 will just extracted.

10 The January document is in the following terms:

“

Codicil to Will of David Oswald Cropley

In regard to the loan monies by me to Richard Oswald Cropley and Geoffrey David Cropley, I hereby revoke the capital repayment upon my death.

The current interest arrangements will pertain until such event and upon my death the capital is to be equally divided by my four children or if any one or more of them should predecease me, the (sic) their share is to go to their children.

11 The May document reads as follows:

“ Dr D Cropley

23 May 2000

Messrs R & G Cropley

As you are aware, I have lent money to both of you to assist in funding your businesses.

I hereby request that Richard repay $55,000.00 of my loan to him over a period of twelve (12) months by equal monthly instalments commencing three (3) months from the date hereof.

These payments are to be made to the account of my wife, details as follows:

E A Cropley

The balance of all loans by me are to be repaid on my death in accordance with my Will with one exception.

As Richard is required to repay $55,000.00, the five (5) equal yearly instalments to be paid by him are to be varied so that the first payment commences one (1) year after the scheduled repayment of $55,000.00 referred to above.

In all other respects. I confirm my Will.

Yours faithfully

(sgd.)

D O Cropley”

Creation of the January document

12 The January document is in Dr Cropley’s handwriting. He wrote it on 23 January 2000 while sitting in the front passenger’s seat of Richard’s car outside a fishing tackle shop not far from the home at Point Frederick occupied by Dr Cropley and Mrs Cropley. Richard, together with Glenn Boulton and Rex Boulton, brothers of his wife, were standing outside the car, adjacent to the front window on the passenger’s side, as Dr Cropley wrote. When Dr Cropley had finished writing, he handed the paper to Rex Boulton saying words to the effect, “Rex, will you sign this for me?”; or “Will you witness the document?” Rex Boulton then signed the paper and gave it back to Dr Cropley. Glen Boulton was present when both Dr Cropley and Rex Boulton signed. These events are dealt with in consistent terms in the affidavits of Rex Boulton, Glenn Boulton and Richard.

13 Contemporary evidence about the intentions of Dr Cropley at the time of preparing and signing the January document is also provided by the same three witnesses. Rex Boulton deposes that, on 23 January 2000, he spoke with Richard at the latter’s house in Sydney, with Glenn Boulton also in attendance. Richard said that he was going to Gosford to see his father “about some documentation”. Glenn Boulton deposes that Richard described the purpose of the trip to Gosford as “to see my dad about some family matters and other issues”. Richard says that he told Glenn Boulton and Rex Boulton that he was going to Gosford “to see my dad to sort out a loan agreement”. Richard also gives an account of conversations he had with his father, Dr Cropley, in December 1999 and January 2000 in which his father said words to the effect:

“What I really want to do is gift the loans to you for kids on my death. I don’t want it going to a fund for her so that you have to wait for years before you have it in your hands.”

14 Richard also testified that Dr Cropley said in the period December 1999 to January 2000:

“As you know, I wanted to make sure that the loans are split four ways between the kids upon my death. I’m very worried that the way my will is at the moment, you kids will never see the money. I just don’t trust that woman. I’d rather know that you get the money straightaway. We need to work out a way to make sure that happens. And obviously we have to do it without Anne knowing.”

Creation of the May document

15 The May document was prepared by the solicitor, Mr Clinch. He gave evidence of having taken certain instructions from Dr Cropley at Gosford Hospital on 21 May 2000. Dr Cropley, by then gravely ill, was a patient at the hospital. He told Mr Clinch that money was needed for Mrs Cropley’s living purposes and that, whereas Mrs Cropley wanted him to ask for repayment of $75,000 of the loan owing by Richard, he thought $55,000 would be enough. Mrs Cropley then entered the hospital room and there was discussion about the amount of the repayment to be required of Richard. Mrs Cropley said she would need at least $100,000. Dr Cropley said $55,000 should be more than enough. Richard was then invited to join the other three and did so. Mr Clinch’s evidence is that the following conversation then took place:

Richard, we want you to repay some of the money. Anne needs to do up the house. I know you can’t pay straight away though.’

OK Dad, how much does she want?’

$55,000.

Well OK Dad, but you know that I can’t start paying straight away. I will need about three months to get my finances in order. But I will have to talk to Geoff and he girls. You know that this effects (sic) them too. I can’t agree to anything today without talking to them. I have a family to support and I have to look at the impact on them. I can’t just write you out a cheque.

‘Richard, you have a business, I am sure you could arrange your finance if you want to.

Anne, I can’t just get the money.

‘How long would it take you to pay it?

I might be able to pay over twelve months, I just don’t know. I will have to go away and consider it. I also have to pay back money to the fund when dad dies. I can’t be doing both.

It would be possible to defer the repayment under the fund until after the $55,000 has been repaid. Is that OK with you David?

Yes, I don’t want to make it impossible for him, but I do want some of the money back.

16 Before leaving the hospital, Mr Clinch wrote a document setting out the terms of the request for repayment in accordance with Dr Cropley’s instructions. The document read as follows:

“ 21/5/00

I have lent certain money to my two sons Richard and Geoffrey.

~~by eg~~

The balance of all loans by me are to be repaid on my death and in accordance with my will except that the 5 equal yearly instalments to be paid by Richard are to be varied so that the first payment commences one year after the repayment of $55,000 referred to above.”

17 On 23 May 2000, Mr Clinch drafted and had typed what became the May document. He took it to Dr Cropley at Gosford Hospital on 24 May 2000. Dr Cropley signed it and gave it back to Mr Clinch. Mrs Cropley, who was also there, saw Dr Cropley sign and was fully aware of the contents. Mrs Cropley gave Dr Cropley two pieces of paper which he also signed and gave to Mr Clinch. These set out the loan balances owed by Richard and Geoffrey, being respectively $275,000 and $155,000. Mr Clinch, on Dr Cropley’s instructions, afterwards sent a copy of the May document to each of Richard and Geoffrey with an appropriate covering letter.

18 Mrs Cropley’s account of some of these events involving Dr Cropley, Mr Clinch and herself differs in some respects from Mr Clinch’s account. The differences are not substantial and I consider the above recitation taken from Mr Clinch’s evidence to be sufficiently reliable.

Principles to be applied to the January document and the May document

19 Section 18A of the Wills Probate and Administration Act is in the following terms:

“(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will.

(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.”

20 In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, it was made clear by Powell J that, once a document is shown to exist, two factors are crucial to the operation of s.18A in relation to it. They are, first, as to the objectively discerned nature of its content (“purporting to embody the testamentary intentions of a deceased person”) and, second, as to the deceased’s intention concerning its status and operation (“if the court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will”). In a case such as the present, where a document is said to amount to an amendment of a will, affirmative answers to both those questions are necessary to cause the section itself to produce the result that the document constitutes such an amendment. If either question is answered in the negative, the section does not operate to make the document an amendment of the will.

21 In this case, the threshold requirement that there be a “document” is satisfied because each of the January document and the May document consists of paper on which there is writing: see the definition of “document” in s.21 of the Interpretation Act 1987. It is therefore unnecessary to embark upon the kind of inquiry as to the scope of that definition undertaken by Austin J in Estate D M Edwards; Treacey vEdwards [2000] NSWSC 846 in relation to an audio tape. It remains to consider, in each case, the two additional questions to which I have referred.

Assessment of the January document

22 The question concerning the purport of the January document – that is, whether it purports to embody testamentary intentions of Dr Cropley - must be answered principally by reference to the terms of the document itself. The answer is, to my mind, clear. The document is headed “Codicil to Will of David Oswald Cropley”. Any document describing itself as a “codicil” and which goes on to “revoke the capital payment upon my death” and to say that “upon my death the capital is to be divided …” describes dispositions which are to occur on and in consequence of the author’s death. It is therefore a document which purports to embody testamentary intentions.

23 The second question is whether, on the evidence, the court should be satisfied that Dr Cropley intended the January document to constitute an amendment of his will. It is significant that Dr Cropley wrote the document himself and, in so doing, described it as “Codicil to Will of David Oswald Cropley”. As an educated professional man, Dr Cropley may be taken to have known the dictionary definition of “codicil” as “A supplement to a will, added by the testator for the purpose of explanation, alteration, etc., of the original contents”: The New Shorter Oxford English Dictionary, 1993 edition. Dr Cropley’s choice of heading should for that reason alone be taken to reflect a subjective intention to modify his will. Such an intention is in any event borne out by the parts of the document dealing with revocation and substituted provision as to division of capital “upon my death”. The revocation reference can only be consistent with an intention to change what was already in his will; and the equal division reference can only be consistent with an intention to make alternative provision taking effect upon death.

24 It is clear enough that there was an intention on Dr Cropley’s part to revise the arrangements in the 1999 will with respect to moneys owed to Dr Cropley by his children at his death. Whereas the 1999 will provided for such moneys to be invested by the trustees as a fund (thereby clearly implying that the trustees should obtain payment from the indebted children), the January document abandoned that regime and stipulated instead that “the capital” should, on death, be divided equally between the four children, with substitution of the children of any child dying before Dr Cropley. The document thus set out new and different provisions which, as at death, should be implemented in relation to that part of Dr Cropley’s property consisting of the debts in question.

25 The fact that Dr Cropley signed the January document shows that he intended to authenticate it in such a way to give it operative force. A finding of that intention is reinforced by Dr Cropley’s having had Rex Boulton sign as witness. He may be presumed to have intended to give his signature some added significance by obtaining, in case it should ever be needed, a means of third party confirmation of his having signed. All formalities necessary to give the January document the status and effect of a codicil were observed, with one exception: whereas it was signed by Dr Cropley in the presence of two other persons (Rex Boulton and Glenn Boulton), it was signed by only one of those two persons.

26 In these circumstances, I am satisfied that Dr Cropley intended the January document to constitute an amendment of his will. That, coupled with the finding that the document is one which purports to embody testamentary intentions, causes s.18A to afford to the January document the character of an amendment of the 1999 will.

Assessment of the May document

27 Unlike the January document, the May document does not profess to be a codicil, with the result that that factor of significance to the characterisation of it as a document purporting to embody testamentary intentions is lacking. The document is in the form of a letter (“Yours faithfully” appears immediately before the signature) and is addressed to two particular persons, “Messrs R & G Cropley”. It therefore shows on its face no more than an intention to communicate a message to those two persons.

28 There are, however, two references to Dr Cropley’s will in the May document and it is necessary to consider whether they may cause the document to be one which purports to embody testamentary intentions. The first such reference is in the paragraph:

“The balance of all loans by me are to be repaid on my death in accordance with my Will with one exception.”

“In all other respects, I confirm my Will.”

29 These references are, in a real sense, subsidiary to the document’s main purpose of communicating to the named addressees a message concerning the debts owed by them to the writer and, in particular, of specifying a regime for repayment of Richard’s loan. With one exception it is, I think, clear enough that the loans to Richard and Geoffrey are repayable on demand, there being no evidence of any other payment schedule having been agreed or accepted. The exception relates to Geoffrey. There are in evidence documents in relation to part of the loan balance owing by him. In those documents (or, more specifically, in an “Acknowledgement of Debt” dated 1 March 1992), there is reference to twelve months’ notice in writing from either Dr Cropley or Mrs Cropley to call up $70,000 of the debt. A handwritten addendum reads “68000 from 1/7/92”. Geoffrey deposes that the document (minus the addendum) was prepared by Mrs Cropley and that it was she who asked him to sign it. He says he signed even though he did not agree with the figures. However, by the end of his evidence at the hearing, Geoffrey did not dispute the total loan figure of $155,000 to which I have already referred. There is nothing to suggest that the balance over and above the $68,000 referred to in the 1 March 1992 document is not payable on demand.

30 By the May document, Dr Cropley required repayment of $55,000 by Richard by twelve equal monthly instalments, with the first such instalment to be paid on 23 August 2000. These specifications were intended to have immediate effect. They in no sense defined circumstances to operate or take effect only upon death. To that extent, the May document cannot be said to purport to embody testamentary intentions of Dr Cropley.

31 Nor, in my judgment, does the statement in the May document as to repayment of the balance of loans on Dr Cropley’s death cause the document to be one which purports to embody testamentary intentions. A statement by a creditor to whom a debt is payable on demand that that debt is to be paid on his death does not evince any testamentary intention. It evinces, rather, an intention to impose upon the debtor a requirement, immediately operative, as to discharge of that debt, albeit a requirement defined, in a timing sense, by reference to the creditor’s death. The same is true of the “one exception” to the specification that the “balance of all loans by me are to be repaid on my death”. That exception, whatever may be its precise meaning, is also entirely concerned with a presently operative re-shaping of the debtor’s existing repayment obligation, not with disposition of property upon or in consequence of death or other matters of a testamentary kind. The same is true of the concluding sentence of the May document. A statement that a will is confirmed does not entail an independent statement concerning disposition of property on death or other testamentary matters. It is no more than recognition of a separately created position already pertaining.

32 When s.18A refers to “testamentary intentions”, it has in contemplation stipulations that are to become effective on death and, in the meantime, are capable of revocation. This is emphasised by the decision of Needham AJ in In the Estate of Gatt (unreported, NSWSC, 13 June 1990). His Honour was called upon to determine the effect of a provision in a mortgage in respect of a loan made by the deceased to his daughter some eight months before his death. The provision was as follows:

“In the event of the death of the mortgagee during the currency of this mortgage then notwithstanding any other provision in this mortgage the mortgagor shall pay to the said Vanessa Gatt within two months from the date of the mortgagee’s death the amount of $33,121.80 being one half of the principal sum or in the event that the amount payable calculated in accordance with clause 4 hereof is less than the said amount of $33,121.80 being one half of the principal sum or in the event that the amount payable calculated in accordance with clause 4 hereof is less than the said amount of $33,121.80 then the mortgagor shall pay that lesser sum and in the event of failure on the part of the mortgagor to pay the amount of $33,121.80 (should the mortgagor be liable to pay that amount pursuant to this provision) to the said Vanessa Gatt within the said period (or such longer period as the said Vanessa Gatt may in her absolute discretion allow) or in the event that the amount paid hereunder is less than that amount of $33,121.80 then the relevant provisions (if any) of the mortgagee’s last will and testament shall apply and take effect.”

33 After referring to the obvious difficulties in construing this provision, Needham J said:

“However, in this case it seems to me that section 18A cannot apply to this provision in the mortgage. Section 18A in my opinion relates to formal requirements of wills and gives the Court power to declare that a document, although not properly executed in accordance with the terms of the Act, may be admitted to probate if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.

One of the essential characteristics of a will is that it is revocable by the testator. I do not think that section 18A sets out to alter the concept of a will as fixed by decisions over many centuries. The present provision in the mortgage is clearly not revocable by the testator without the consent of the mortgagor and therefore it seems to me it cannot be considered to be a will or an amendment to a will.”

34 These observations are equally applicable to the May document. By that document, a lender to whom sums were payable on demand required payment by reference to a particular payment schedule or regime or, perhaps, indicated an intention to forebear from demand on the basis that that schedule or regime was accepted and adhered to in relation to the debts concerned. All those matters rested in contract between the lender and the borrowers and were capable of variation or revocation only by some further contract between those parties. The fact that the payment schedule or regime operated, in part, by reference to the particular event of the lender’s death did nothing to detract from that contractual reality or to cause the lender’s specifications to be revocable in the way that a testamentary provision is revocable.

35 Because, for these reasons, the intentions the May document evidences cannot be regarded as “testamentary”, the May document is not one to which s.18A applies. I might add that the evidence as to Dr Cropley’s subjective intentions in relation to the May document is that he did not intend it to constitute an amendment of his will. His intention, rather, was to make immediately binding provision concerning repayment of the relevant debts.

Conclusion on the probate aspect

36 All formal matters necessary in the case of an application for probate have been duly proved. The outcome in relation to the probate issues I am required to decide is therefore that there must be a declaration that the January document constitutes an amendment of the 1999 will and a grant to Mrs Cropley and Richard of probate in solemn form of the 1999 will and the January document.

Questions preliminary to the Family Provision Act determination

37 Two questions must be resolved before the claims under the Family Provision Act can be sensibly addressed. The first is as to the effect of the May document and whether it effected an immediate assignment to Mrs Cropley (that is, an assignment effective inter vivos in May 2000), thus diminishing what would otherwise have been the principal sum owing by Richard to Dr Cropley at the latter’s death. The second is as to the combined effect of the 1999 will and the January document as they relate to debts owing by Dr Cropley’s children at his death.

38 By the May document, Dr Cropley not only required payment by Richard of $55,000 by the specified instalments but also directed that those instalments be paid to Mrs Cropley by means of deposit into her account with the Commonwealth Bank at Gosford. That direction had one of two legal results: it effected an immediate equitable assignment to Mrs Cropley of part of the debt owed to Dr Cropley by Richard; or it operated merely as a revocable mandate not amounting to an assignment and to be observed by the debtor only until countermanded by the creditor.

39 There was, of course, no consideration passing to Dr Cropley or from Mrs Cropley in connection with the May document, with the result that one of the important elements of most forms of equitable assignment was lacking. But it is important to note that the subject matter was part of a debt, that being a species of property which is incapable of assignment at law, even with the assistance of s.12 of the Conveyancing Act 1919: In re Steel Wing Co Ltd [1921] 1 Ch 349. Part of a debt can, however, be made the subject of an equitable assignment and consideration is not necessary to support such an assignment. This is borne out by the decision of the High Court in Shepherd v Commissionerof Taxation (1965) 113 CLR 385. The basic proposition is stated in the first paragraph of the headnote in the Commonwealth Law Reports:

“There may be a valid equitable assignment with or without consideration of part of a legal chose in action.”

“We are not here considering a purported equitable assignment of a legal chose in action capable of assignment at law. The consideration which is necessary to attract the jurisdiction of equity to perfect an imperfect assignment is not necessary where the only possible assignment is equitable and the assignor has done all that could be done by him to perfect an equitable assignment.”

40 But there is, of course, the crucial question whether Dr Cropley, by writing the May letter to Richard and Geoffrey and causing it to be delivered to them, had, in the words of Kitto J, “done all that could be done by him to perfect the equitable assignment”. It seems to me that he had. His intention that Mrs Cropley should have the $55,000 which Richard was to pay in accordance with the May document was clear on the face of the document. It contained not a request but a direction that the specified payments be made to Mrs Cropley. This was not qualified by words such as “until further notice”. The contents of the document were brought to the notice of both Mrs Cropley and Richard, in one case by Dr Cropley himself at the hospital and in the other by the forwarding of a copy by his solicitor on his instructions. The intention that Mrs Cropley should have the right, in place of Dr Cropley, to receive the $55,000 from Richard was unambiguously manifested.

41 In these circumstances, the conclusion must be that, by virtue of the May document and the events surrounding and subsequent to its execution, Mrs Cropley acquired in May 2000 the right to be paid $55,000 by Richard in the manner and by the instalments specified in the May document. To that extent only, the debt owed by Richard became a debt owed to Mrs Cropley instead of to Dr Cropley.

42 This leads on the second question, namely, as to the operation, in relation to debts owed by Dr Cropley’s children at his death, of the 1999 will as amended by the January document.

43 The first point to be noted is that, for reasons just stated, the debt owed by Richard to Dr Cropley at that point was the sum owing after exclusion of the part the subject to the assignment to Mrs Cropley. Accepting, as I do, the evidence that, immediately before the May document took effect, the principal sum owed by Richard was $275,000 and accepting also that there was no payment of principal by Richard between that time and Dr Cropley’s death, the principal in relation to which the 1999 will and the January document operated was $220,000.

44 In relation to the debt of $220,000 owed by Richard and the debt of $155,000 owed by Geoffrey (these being, on the evidence, the only moneys owed to Dr Cropley by his children at his death), the so-called revocation, by the January document, of “the capital repayment upon my death” must represent a countermanding of the direction to the trustees in clauses 5.1 and 5.2 of the 1999 will to cause moneys owing by the children to constitute an invested fund. A necessary element of compliance with that direction would have been calling up of the debts so that money was available to invest. The requirement for such calling up was therefore removed by the January document.

45 By its terms, the January document provides for the disposition of the debts themselves. This is, to my mind, the clear import of the so-called revocation of “the capital repayment on my death” and the equal division among the four children of “the capital”. The testator’s intention, as so manifested, was that the trustees, being no longer required to call up the loans, were bound to put each of the four children into possession of one quarter of each of the debts which, in the events which happened, were the debts of $220,000 and $155,000. As a result, each of the four children (including Richard) would become entitled to part (to the extent of $55,000) of the debt owed by Richard and each of the four children (including Geoffrey) would become entitled to part (to the extent of $38,750) of the debt owed by Geoffrey. To the extent that Richard or Geoffrey would thereby become notionally indebted to himself, there would be a pro tanto satisfaction of the debt. The net result would therefore be that there accrued to Richard a right to be paid $38,750 by Geoffrey, that there accrued to Geoffrey an entitlement to be paid $55,000 by Richard and that there accrued to each of Susan and Jan an entitlement to be paid $55,000 by Richard and $38,750 by Geoffrey.

The estate and its disposition

46 Mrs Cropley’s affidavit of executrix discloses an estate having a gross and net value of $622,058.91, inclusive of the debts owed by Richard and Geoffrey which are included at $275,000 and $155,000 respectively. For reasons already given, the sum owing by Richard is properly regarded as $220,000, so that the gross and net value of the estate must be adjusted to $567,058.91.

47 The 1999 will contains specific bequests to Dr Cropley’s children of items of furniture and personal effects. To the extent that these are reflected in the inventory, they account for a total of $2,750 (aluminium dinghy, tools and fishing tackle) and may, I think, be disregarded for all practical purposes in the present context. After allowance is made for these items and the debts owing by Richard and Geoffrey, the value of the residuary estate is $189,308.91. The 1999 will provides for that residuary estate to pass to Mrs Cropley absolutely.

48 The Family Provision Act claims must therefore be addressed by reference to the following basic circumstances with respect to Dr Cropley’s intended disposition of his estate:

(1) Each of Richard, Geoffrey, Susan and Jan benefits to the extent of $93,750

(2) Mrs Cropley benefits to the extent of $189,308.91.

Approach to the Family Provision Act claims

49 There is no question that each of Mrs Cropley, Richard and Geoffrey, being the applicants under s.7 of the Family Provision Act is, in relation to the estate of Dr Cropley, an “eligible person” for the purposes of that Act. Mrs Cropley is within para (a)(i) of the definition of that term in s.6, while each of Richard and Geoffrey is within para (b). Being thus satisfied as to that matter, the court may, pursuant to s.7:

“order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”

50 The court’s power is, however, constrained by s.9(2) which says that an order under s.7 may not be made unless the court is satisfied that:

“the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.”

51 The nature of the court’s task in such cases is explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201 as follows:

“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’. That description means no more than that the court’s power to make an order in favour of an applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a).”

52 Later, their Honours said:

Bosch v Perpetual Trustee Co Ltd

Ellis v Leader

53 It must also be borne in mind that, if the threshold issue is resolved in favour of intervention by the court, that intervention should be only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; King v Foster (unreported, NSWCA, 7 December 1995). Where the applicant is the widow of the deceased, this minimal intervention must be fashioned with appropriate regard to the following statement of principle appearing in the judgment of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 described by Handley JA in Gregory v Hudson [1999] NSWCA 221 as “well established and not in dispute”:

“It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.”

54 At the same time, however, it must be borne in mind that this principle is, by its terms, stated to apply “as a broad general rule”. In Marshall v Carruthers [2002] NSWCA 47, Hodgson JA and Young CJ in Eq (with both of whom Palmer J concurred) emphasised the need for the “broad general rule” to be considered in the context of the particular case. Hodgson JA identified, as considerations which might affect the applicability of the principle, the length of the relationship and contributions to the relationship, particularly where a woman, to the detriment of her own financial prospects, has taken a major role in raising the children of herself and the deceased. His Honour also observed that it is not clear that the “broad general rule” would apply to applications by widowers. Young CJ in Eq said:

“Powell J’s broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.”

55 In the end, I think the approach to an application by a widow is that suggested by the following passage in the judgment of Young CJ in Eq in O’Loughlin v Low [2002] NSWSC 222:

“Putting it all together, what provision should the testator have made for this lady? What, in other words, is the provision that the community would think a person in the position of the testator should have made for his widow?”

56 When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow’s claim to maintenance out of the estate of her deceased husband is a claim which is “paramount” and “of a high order” is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows:

Permanent Trustee v Fraser

57 But I must, of course, approach each applicant’s application according to the two stage approach described in Singer v Berghouse (above). The first task is therefore to determine the adequacy of the provision made (in this case, by the 1999 will as amended by the January document) for the maintenance and supprt of each applicant, with the court placing itself in the position of “a wise and just, rather than a fond and foolish, husband and father”: Bosch v Perpetual Trustee Co Ltd [1938] AC 463. This does not involve any inquiry into “moral duty” but, rather, an objective examination of what is adequate in the context of the whole of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have a legitimate claim on the deceased’s bounty. The claim of one applicant cannot be determined in isolation from the claims of others. An applicant’s need is the first consideration and, in that, the applicant’s ability to meet his or her financial responsibilities is the principal factor, with regard also being had to the applicant’s standard of living.

Mrs Cropley’s circumstances

58 Mrs Cropley was married to Dr Cropley for nine years. She was 51 at the time of the marriage and had not previously been married. She is now aged 62 and presumably has, in general terms, a life expectancy of the order of 20 years. It is true that Dr Cropley and Mrs Cropley had no children and that Mrs Cropley did not play the major role in raising a family to which Hodgson JA and Young CJ in Eq referred in Marshall vCarruthers. But Mrs Cropley nevertheless devoted herself to Dr Cropley throughout the period of the marriage. She had worked all her adult life until mid-May 1991, that is about three weeks before the marriage. At that point and at Dr Cropley’s request, she gave up her employment as an executive tax consultant with Price Waterhouse from which she had earned $57,738 in the ten and a half months of the 1990-91 financial year before retirement (representing an annual rate of remuneration of some $65,000). She left that position so that she could, as Dr Cropley wished, spend all her time with him in the pursuit of joint activities, including travel and fishing. He had, by that time, retired from his medical practice and wished to pursue an active and fulfilling retirement with Mrs Cropley. They in fact took several trips to remote parts of Australia in a four wheel drive vehicle. Their idea was to undertake arduous travel of that kind before they became too old and then to engage in overseas travel in a more comfortable fashion later. They played golf together and shared other interests. Mrs Cropley became the homemaker and, during the last six months or so of Dr Cropley’s life when he was severely incapacitated by the cancer which resulted in his death, she was extremely attentive to his nursing and medication regimes, taking him to medical appointments as needed and generally concerning herself closely with his welfare – so closely, in fact, that there is evidence to suggest that he may have felt stifled by her over-protectiveness.

59 There is evidence that Dr Cropley expressed to his children misgivings about having married Mrs Cropley and went to the extent of raising with Mr Clinch the question of divorce. Although he complained about Mrs Cropley’s apparent inability to let him do his own things and expressed misgivings about their compatibility, a perception that he might be seen to have been unsuccessful in marriage on two occasions was, it appears, a factor which stayed his hand. He never mentioned any of this to his close friend, Mr Cameron. These circumstances are, in my view, something to which very little, if any, weight can or should be given. If the court were to attempt to gauge matters by reference to the extent of individuals’ happiness in matrimonial situations it would embark upon an impossible task – and one that the Act neither requires nor allows. The emphasis is, rather, on matters of an objective kind much more easily grasped. The expectation that a testator will make provision for a particular person may be conditioned by aspects of their relationship that can be characterised as obvious alienation, such as declared estrangement and physical separation. But when a man and woman who are married live together under the same roof, make special efforts to secure a comfortable residence favoured by both, appear to pursue interests in common and, in the closing stages of the life of one, deal with that partner’s terminal illness by means of a regime of nursing and care in which the other plays a continuing and central role, there is really no room, in the context of a claim of this kind, to inquire into the subjective happiness rather than the quality of the manifested relationship.

60 I consider Powell J’s “broad general rule” to be applicable to this case. Because of the joint tenancy of the Point Frederick property which has passed to her by survivorship, Mrs Cropley is secure in her home. It remains, therefore, to consider whether she has “an income sufficient to permit her to live in the style to which she is accustomed” and whether she has sufficient to enable her to meet any unforeseen contingencies.

61 Mrs Cropley’s affidavit of 2 May 2001 details her assets at the date of Dr Cropley’s death as follows:

Bank accounts

Rental Properties

Shares

Commonwealth Bank 400 @ $26.95 10,780
Woolworths 1,078 @ $6.07 6,543
Telstra (fully paid) 1,000 @ $6.94 6,940
Telstra Receipts 1,200 @ $3.93 4,716
AMP 2,132 @ $16.25 34,645 63,624

$675,481

62 To this must not be added, of course, the Point Frederick home which passed to Mrs Cropley by survivorship on Dr Cropley’s death. The property is a two-storey house on land with an absolute waterfront to Brisbane Water, situated about 1.5 kilometres from the Gosford shopping area. A valuation report by Michael J. Dick & Associates Pty ltd of Gosford expresses the opinion that the property had a current market value of $865,000 as at 29 October 2001.

63 This valuation report also refers to certain items requiring repair or other attention. The cost of dealing with these matters is said to be in the range of $25,000 to $30,000.

64 Another item to be included upon an assessment of Mrs Cropley’s assets is the sum of $55,000 which, as outlined above, represents part of the debt owed by Richard which was assigned by Dr Cropley to Mrs Cropley by the May document.

65 Mrs Cropley deposes to having met the following expenses out of her own resources since the date of death:

13,492

$25,422

66 An adjusted assets figure of, say, $705,000 may therefore be assumed, exclusive of the Point Frederick house but inclusive of $55,000 representing the part of the debt owed by Richard which was assigned by the May document.

67 Mrs Cropley’s income in the financial year ended 30 June 2000 was as follows:

$ 3,009

Less deductions $ 360

$ 24,832

68 For the same financial year, Dr Cropley’s income consisted of:

Dividends $ 5,295

$ 47,851
Less Deductions $ 51

$ 47,800

69 It will thus be seen that interest on the loans to Richard and Geoffrey formed the bulk of Dr Cropley’s income. With those items excluded (except for $55,000 of the debt owed by Richard) Dr Cropley’s income would have been about $13,800. This is indicative of the income attributable to the residue plus $55,000 of Richard’s debt.

70 Mrs Cropley’s annual expenses, as detailed in her affidavit of 2 May 2001 are:

$ 10,000

$ 47,578

71 Views may differ as to the appropriateness of some of these items but the differences are at the edges only. Mrs Cropley’s lifestyle requires a disposable after tax income of some $45,000 according to rates of cost of living prevailing today. The pre-tax income required to produce that after tax amount is of the order of $61,000. Mrs Cropley’s current pre-tax income from her own assets is of the order of $24,000. To this may be added pre-tax income of some $13,800 attributable to the residuary estate of $189,308.91 plus the $55,000 debt component, but otherwise exclusive of the debts owed by Richard and Geoffrey. The pre-tax income deficiency may therefore be accepted as being of the order of $23,000.

Richard’s circumstances

72 Richard is a married man aged 45. He has three children aged 10, 8 and 7 all of whom attend private schools. He and his family live in a five-bedroom house at Turramurra with large grounds. It is owned by Richard and his wife as joint tenants. They bought it in 1999 for $1,080,000. There is a mortgage of $711,000. Richard and his wife have made fairly extensive improvements to the garden of the property. They have plans to renovate the house. Richard estimates that he would obtain $1.18 million for the house if he decided to sell it and might realise as much as $1.3 million or $1.4 million.

73 Leaving to one side the house at Turramurra, Richard’s principal assets consist of shares listed on the Australian Stock Exchange, shares listed on stock exchanges of the United States and his 50% interest in the companies Fetovu Pty Ltd and Roof Rack City (NSW) Pty Ltd which, between them, own and operate Richard’s roof rack business. The other 50% interest in each company is held by Richard’s wife.

74 Richard’s Australian and United States share portfolios had market values of A$99,799.68 and US$71,308.00 at 21 January 2002. He deposes to having suffered significant losses on share trading in both Australia and the United States over the last few years. He has never made a profit from his share trading activities.

75 The accounts of Fetovu Pty Ltd show profitable operation for each of the years to 30 June 1997, 1998, 1999 and 2000. The operating profit after income tax was $78,152.32 for 1997, $83,879.32 for 1998, $91,212.19 for 1999 and $246,288.37 for 2000. The corresponding figures for Roof Rack City (NSW) Pty Ltd were $15,722 (1997), $32,973.89 (1998), $5,104.12 (1999) and $24,634.28 (2000). Total equity disclosed by the balance sheets as at the end of the respective years were:

Year Fetovu Roof Rack City

1997 $ 326,509.80 $ 15,724.00

1998 $ 408,389.12 $ 48,697.89

1999 $ 499,601.31 $ 53,802.01

2000 $ 645,889.68 $ 78,436.29

76 Richard’s income tax return for the year ended 30 June 2000 shows a taxable income of $280,083. The corresponding figure in the income tax return for the year ended 30 June 2001 is $138,812. In the earlier year, Richard received from Fetovu salary of $65,988 and a franked dividend of $100,000. The balance of his income consisted principally of share trading profits of $31,935. In the year ended 30 June 2001, Richard received from Fetovu salary of $60,320 and a franked dividend of the same amount as in the previous year, namely, $100,000. There appears to have been in the later year a loss from share trading activities. Richard’s wife had a taxable income of $69,999 in the year ended 30 June 2001. This was wholly salary from Fetovu.

77 But Richard is, as he said in cross-examination, “stressed with debt”. His companies have borrowed to the extent of their bank limits (some $600,000). In addition to the mortgage debt on the jointly owned family home ($711,000), Richard had credit card debts, as at January 2002, of approximately $92,000, compared with $8,000 in July 2001. He describes the significant increase over a six month period as “largely due to my recent purchases of shares”. In re-examination, he described the credit card financing as “easy funds to get”.

78 Richard showed in cross-examination a poor grasp of the financial details of his businesses. He was unable to explain a number of entries in the accounts, although he did have an overall appreciation of the financial position.

79 Richard agreed in the course of cross-examination that he and his wife live in “very comfortable circumstances”. He travels overseas on business once or twice a year. He and his wife had an overseas holiday of seven or ten days duration in 2001.

80 The question of Richard’s capacity to repay the $275,000 lent by his father was dealt with thus in cross-examination:

Q. You wouldn’t have any difficulty in raising the funds even retaining the business and the house, would you?

81 Richard could presumably have added that sale of the share portfolio having a market value (assuming, conservatively, an exchange rate of 50 cents Australian to the United States dollar) of more than $240,000 would go a long way towards covering the $275,000 debt.

Geoffrey’s circumstances

82 Geoffrey and his wife married in February 2000 and are expecting their first child. Geoffrey is aged 42. His wife is aged 41.

83 Geoffrey and his wife live in a house at Alexandria which is owned by them as joint tenants. The property is said by Geoffrey to be worth about $500,000, having been bought for that sum in April 2001. There is a mortgage loan of $450,000. Geoffrey also owns a factory at Alexandria at which the business of his company, Titan Australia Pty Ltd, is conducted. The factory property was said by Geoffrey in a bank loan application of June 1999 to be worth $260,000, having been purchased for $240,000 in November 1998. There is a mortgage loan on the factory property of $180,000.

84 Geoffrey is the sole shareholder of Titan Australia. There is no evidence of the value of his shares in that company apart from Geoffrey’s own statement in the loan application of June 1999 ascribing a value of $700,000. Apart from these shares and the two properties, Geoffrey’s assets consist of a superannuation account of $46,000 and somewhat less than $3,000 in bank accounts.

85 The only evidence about Titan Australia’s financial position is that provided by an incomplete balance sheet as at 30 June 2000 (it is incomplete because the notes referred to in are not attached), without any accompanying profit and loss account; a profit and loss account for the year to 30 June 2001 unaccompanied by any balance sheet or notes and the income tax return for the year ended 30 June 2001. It would be dangerous to attempt to draw too many conclusions from this obviously incomplete information, particularly as there are unexplained differences in the picture painted with respect to financial performance of the year to 30 June 2001 by the profit and loss account and the tax return – although there is, I suppose, the possibility that different treatments according to financial accounting and tax accounting may be the reason. One document discloses an operating profit of $32,174 and the other an operating profit of $24,868.63. The incomplete balance sheet shows total equity of $40,893.96 at 30 June 2000 and total equity of $26,972.10 at 30 June 1999. The financial position and performance of Titan Australia cannot be determined with any accuracy from the evidence presented.

86 Geoffrey’s tax returns for the years ended 30 June 1998, 1999, 2000 and 2001 are all in evidence. Three of the income tax returns are incomplete, those for the years ended 30 June 1998, 1999 and 2000. Each such return clearly consisted of five pages but there are in evidence, in each case, fewer than five pages. Some material information is missing. It can nevertheless be said that Geoffrey had a taxable income of $22,010 in the year ended 30 June 1998, $37,736 in the year ended 30 June 1999, $39,317 in the year ended 30 June 2000 and $58,871 in the year ended 30 June 2001. In each of the last three years, Geoffrey’s income consisted almost wholly of salary received from Titan Australia. That salary was no doubt an expense item in the calculation of Titan Australia’s profit.

87 Geoffrey’s business causes him to make overseas trips. He visits trade fairs and business contacts on a regular basis, at least annually. He and his wife eat out at restaurants probably once or twice a week. His wife is an advertising consultant. There is no evidence of her assets or income, apart from the reference to her co-ownership of the home. She intends to give up working when their child is born. The child is expected in October.

Adequacy of provision for Mrs Cropley

88 In my judgment, the 1999 will, as amended by the January document, does not make adequate provision for the proper maintenance and suppot of Mrs Cropley. She is adequately provided for as to her housing and accommodation, provided that her income is sufficient to enable her to attend to upkeep and maintenance of the Port Frederick home. It is in the area of income for the remainder of her life that inadequate provision is made, bearing in mind that, at the age of 62 and not having practised as a tax accountant for eleven years, she will not return to the pursuit of her profession.

89 I have already concluded that Mrs Cropley’s income is insufficient for her proper needs to the extent of $23,000 per year on a pre-tax basis.

Adequacy of provision for Richard

90 Richard is, with his wife, the owner of an apparently successful business which, in each of the last two years, has yielded him a dividend of $100,000 as well as a salary of $60,000 or more. His wife also receives a substantial salary from the business. Richard is not said to be ill or otherwise in need of special consideration and, at age 45, has probably at least fifteen years of productive working life ahead of him. He lives in a large house and in comfortable circumstances and has apparently seen himself as sufficiently financially stable to speculate on stock markets, an activity which, while occasioning substantial losses, saw him with a remaining portfolio valued at some $240,000 in January of this year.

91 Dr Cropley has, by his testamentary dispositions, benefited Richard to the extent of net $93,750. I cannot see any basis on which that benefit should be regarded as inadequate in the context of any assessment of expectations of the provision Dr Cropley should have made for the proper maintenance and support of Richard.

Adequacy of provision for Geoffrey

92 The gaps in the evidence about Geoffrey’s business and financial circumstances and the entire absence of evidence about his wife’s financial situation make it impossible to come to reliable conclusions. But with a taxable income in the range $37,736 to $58,871 in each of the last three financial years and as the sole owner of a company apparently operating profitably, there is no obvious ground for thinking that Geoffrey is any state of financial instability. At age 42 and apparently fit and healthy, he can presumably look forward to a remaining working life of the order of eighteen years. He lives in his own house and is paying off a mortgage. He also owns, rather than leases, the premises in which his company operates, although again subject to a mortgage loan.

93 Dr Cropley’s testamentary dispositions benefit Geoffrey to the extent of $93,750. I repeat in relation to Geoffrey the conclusion I stated in relation to Richard, namely, that I can see no basis on which the benefit of $93,750 should be regarded as inadequate in the context of any assessment of expectations of the provision Dr Cropley should have made for the proper maintenance and support of Geoffrey.

Answer to the s.9(2) question

94 In terms of s.9(2) of the Family Provision Act, I am satisfied that the provision made in Mrs Cropley’s favour by Dr Cropley during his lifetime and out of his estate is inadequate for the proper maintenance of Mrs Cropley.

95 I am not satisfied that the provision made in favour of either Richard or Geoffrey by Dr Cropley during his lifetime and out of his estate is inadequate for the proper maintenance, education or advancement in life of Richard or Geoffrey as the case may be. On the contrary, I take the view that the provision made in favour of each was more than adequate, given the capabilities and circumstances of each son.

Answer to the s.7 question

96 The inadequacy in relation to Mrs Cropley means that there must be some adjustment and, since the four children are the only other beneficiaries, that adjustment will necessarily impact upon them.

97 Provision should be made out of Dr Cropley’s estate sufficient to provide to Mrs Cropley an additional $23,000 per annum of pre-tax income for the remainder of her life, with that sum being increased or decreased in line with movements in the consumer price index on an annual basis in arrears. The annual sum should be paid by half-yearly payments.

98 Because the need is a need for income, it is not necessary to direct the transfer of any capital sum to Mrs Cropley over and above the residue to which she is entitled under the will. It will be sufficient if enjoyment of the principal arising from the debts owing by Richard and Geoffrey, to which the four children are entitled pursuant to the January document, is postponed until Mrs Cropley’s death; that the trustees take the debts with power to require and receive payments of principal and interest in accordance with the debt terms and with a duty to invest all principal proceeds received so that the debts, or any residue of them, together with all such proceeds and investments, shall constitute and be held as a fund; that investment be in accordance with s.14 of the Trustee Act 1925; that the annual income of the fund, to the extent of the sum of $23,000, adjusted for inflation as I have mentioned, be paid to Mrs Cropley during her life by half-yearly payments; that any income over and above that to which Mrs Cropley is so entitled for any period be divided equally among such of Richard, Susan, Jan and Geoffrey as are for the time being living; that if there is at any time a deficiency in income so that the annual sum for Mrs Cropley cannot be met out of income, the deficiency shall be met out of the corpus of the fund; and that upon Mrs Cropley’s death, the corpus of the fund and all accrued but unpaid income be divided equally among such of Richard, Susan, Jan and Geoffrey as are then living, with a proviso that, if any of them has died before Mrs Cropley leaving a child or children living at Mrs Cropley’s death, that child or those children should take (in equal shares if more than one) the share of the corpus and accrued income which the deceased parent would have taken if living at Mrs Cropley’s death.

99 Such a regime is a somewhat expanded version of that provided for in the January document in relation to the debts owing by Dr Cropley’s children, but by reference to the debts in the form in which they exist as a result of the May document and with a postponement for the life of Mrs Cropley to whom an additional entitlement is granted by way of enjoyment of income to a defined and limited extent.

100 In general concept, the form of order to be made in relation to the debts is an order making additional provision for Mrs Cropley generally along the lines of paragraph (a)(i) and (a)(ii) of the orders in White v Barron (1980) 54 ALJR 333, but by reference specifically to the debts owing by the sons, with Dr Cropley’s four children as the remaindermen and with the other particular features which I have identified.

Conclusion

101 Having outlined in paragraphs [36] and [97] to [100] the nature of the orders to be made, it is appropriate that I afford the parties an opportunity to formulate the precise terms. I direct that an attempt be made to agree short minutes of orders and that any agreed form be filed by delivery to my Associate within 14 days from today. If there is no agreement, each party is to file his or her preferred form of short minutes by delivery to my Associate within 21 days from today. The proceedings can then be listed for such further submissions as may be necessary.

102 I shall hear submissions on costs when the matter comes back before me.

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Last Modified: 04/26/2002

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Citations

Cropley v Cropley [2002] NSWSC 349

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CITATION:	Cropley v Cropley [2002] NSWSC 349
CURRENT JURISDICTION:	(1) Equity Division - Probate List (2) Equity Division
FILE NUMBER(S):	SC 100191/00; 4029/01
HEARING DATE(S):	12/03/02, 13/03/02
JUDGMENT DATE:	26 April 2002
PARTIES :	(1) Elizabeth Anne Cropley - Plaintiff Richard Oswald Cropley - First Defendant Susan Gai Thorley - Second Defendant Peter Allan Rowlands Clinch - Third Defendant Richard Oswald Cropley Cross-Claimant Elizabeth Anne Cropley - Cross-Defendant (2) Geoffrey David Cropley - Plaintiff Elizabeth Anne Cropley - Defendant
JUDGMENT OF:	Barrett J

COUNSEL :	(1) Mr P.H. Blackburn-Hart - Plaintiff Ms P.J. Gormly - Defendants (2) Ms P.J. Gormly - Plaintiff Mr P.H. Blackburn-Hart - Defendant
SOLICITORS:	(1) Teece Hodgson and Ward - Plaintiff Holding Redlich - Defendants (2) Holding Redlich - Plaintiff Teece Hodgson and Ward - Defendant
CATCHWORDS:	SUCCESSION - informal wills - whether documents signed by testator after making formal will operate as amendments of will - EQUITY - assignments in equity - assignment of part of debt - no consideration - assignment valid in equity - FAMILY PROVISION - principles upon which relief granted - competing claims of widow and adult sons - failure by testator to make sufficient income provision for widow - no failure to make adequate provision for adult sons
LEGISLATION CITED:	Conveyancing Act 1919 Family Provision Act 1982 Interpretation Act 1987 Wills Probate and Administration Act 1898
CASES CITED:	Blackmore v Allen [2000] NSWCA 162 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Estate D M Edwards; Treacey v Edwards [2000] NSWSC 846 In the Estate of Gatt (unreported, NSWSC, 13 June 1990) Gregory v Hudson [1999] NSWCA 221 King v Foster (unreported, NSWCA, 7 December 1995) Luciano v Rosenblum (1985) 2 NSWLR 65 Marshall v Carruthers [2002] NSWCA 47 O'Loughlin v Low [2002] NSWSC 222 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Sayer v Sayer [1999] NSWCA 340 Shepherd v Commissioner of Taxation (1965) 113 CLR 385 Singer v Berghouse (1994) 181 CLR 201 In re Steel Wing Co Ltd [1921] 1 Ch 349 White v Barron (1980) 54 ALJR 333
DECISION:	See paragraphs [36] and [97] to [100]