Davis v Fordham

[2008] NSWSC 182

CITATION:	Davis v Fordham [2008] NSWSC 182
HEARING DATE(S):	03/03/08, 04/03/08
JUDGMENT DATE :	5 March 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	5 March 2008
DECISION:	Paragraph 74
CATCHWORDS:	Family Provision. Claim by twin sister and her husband who looked after deceased for 14 years. Legacy awarded. No matter of principle.
PARTIES:	Keith Davis & Anor v Warren Fordham & Anor
FILE NUMBER(S):	SC 1637 of 2007
COUNSEL:	Mr J Anderson for plaintiffs Mr S Philips for defendants
SOLICITORS:	Jackson Smith Lawyers for plaintiffs Cox West Lawyers for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 5 MARCH 2008

1637/07 KEITH CLEMENT DAVIS and ANOR v WARREN JOHN FORDHAM and ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Brian Charles Fordham who died on 24 November 2006 aged 71 years. He was survived by his two children, who are the defendants in the proceedings, and his twin sister, who is one of the plaintiffs, along with her long-standing de facto partner. The plaintiffs lived with the deceased for many years and cared for him in his illness at the end of his life.

2 The deceased was also survived by his former wife, and a grandchild who has been given notice and brings no proceedings.

3 The deceased did not leave a will and Administration of his estate has been granted to the defendants who share his estate equally.

The estate of the deceased

4 The deceased's estate consists of:

(a) His home valued at $380,000.
(b) Cash held by his solicitors in the sum of $23,268.
(c) A 1971 Ford Fairlane worth approximately $2000.
A total of $405,268.

5 There have been costs involved in the bringing of these proceedings. The total of the defendant's costs is $60,774.35, of which $40,774.35 has already been paid.

6 The plaintiff's costs are estimated at $58,900. This leaves a net estate, assuming that an order is made in favour of the plaintiffs, of $326,368.

Family History

7 The first plaintiff, Keith Davies, was born in July 1923. In October 1935 the deceased and his twin sister were born. The two plaintiffs, Keith and Shirley, commenced a de facto relationship in 1959. Apparently they never married because Keith's former wife, the mother of their five children, refused to divorce him. The plaintiffs, Keith and Shirley, have two children, one being Debbie MacNaughtan.

8 On 3 June 1961 the deceased married his wife, Lynette and they had two children. The second defendant, Tracey Lea Downey (nee Fordham) was born in 1962 and the first defendant, Warren John Fordham, was born in 1963. Unfortunately their parents separated in 1964.

9 The deceased and his infant children, Tracey and Warren, moved to his parents house at 3 Anne Street, Earlwood. Lynette moved elsewhere.

10 In the 1960s and through to the 1980s the plaintiffs worked as share farmers in Victoria and then moved to Brisbane. In May 1968 the divorce of the deceased and his wife became absolute and he and his wife were married in 1968.

11 Shane Davis, the son of the plaintiffs, was born in 1968. In 1979 the mother of the deceased, the second plaintiff and the various siblings, died. Each of the children received a share of the Earlwood property in which the deceased was living. His sister, Edna, assisted the deceased to buy out the other siblings share and the deceased became the sole owner of the house. She moved into the house, which was also occupied by the deceased and his two children.

12 Tracey moved away in 1980 and in the 1980s the plaintiff moved from Bowen. Tracey married in 1982. It was in 1985 that they plaintiffs purchased a roadhouse business at Inglewood in Queensland. Their disabled son, Shane, lived with them at the roadhouse. The deceased's sister came also to help run the roadhouse. The plaintiff's son, Shane, died in 1986 or 1987. At the same time the business failed and Keith stopped work and started receiving a disability pension.

13 Warren commenced his relationship with Annette in 1988 and she moved in in 1990. They married in 1991 and lived there for some three years. The deceased in the meantime was diagnosed with Type 2 diabetes in 1992.

14 In late 1993 or early 1994 the deceased invited the plaintiffs to go and live with him at the Earlwood house. There was plenty of room. They moved in very shortly after this invitation.

15 It was in April 1994 Warren and Lynette moved out into their own home and gave birth to their first child soon thereafter. In either 1997 or 1998 the deceased sold the Earlwood house for $340,000 and purchased a property at 4 Moore Road Oakdale for $159,000. The plaintiffs and their grandson, Cameron, also moved to Oakdale.

16 In 2004 the plaintiffs leased three acres of land on which to keep a couple of horses from which they bred and they spent some time in improving this land. On 24 November 2006 the deceased Brian died. A summons was filed on 22 February 2007 and Letters of Administration were granted to the defendants on 27 April 2007.

Eligible Persons

17 The plaintiffs say they are eligible persons because they provided domestic support and personal care for the deceased. They also say they were part of the household of the deceased and depended upon the deceased for their accommodation. On the first aspect it is necessary to note the various statutory provisions.

18 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act, which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984. That act applies to domestic relationships which are defined in section 5:

“5. Domestic relationships.
(1) Before the purposes of this Act, a domestic relationship is:
(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:
(a) a child born as a result of sexual relations between the parties,
(b) a child adopted by both parties,
(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:
(i) of whom the man is the father, or
(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,
(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).
(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a parties to such a relationship."

19 It can be seen from the terms of section 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

20 The definition of a ‘de facto relationship’ itself appears in section 4 and is in the following terms:

“4. De facto relationships
(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who lived together as a couple, and
(b) who are not married to one another or related by family.
(2) In determining whether to persons are in a de facto relationship, all the circumstances of the relationship to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or inter-dependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2) (a) -- (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a Court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
(4) Except as provided by sections 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

21 This definition, apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677.

22 Apart from the exclusionary matters in section 5 (2) there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead, section 5 (1) (b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are "living together". Given that they may be members of the same family, such as grandparents and grandchild and a different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead, the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care".

23 So far as the first requirement is concerned, since one is not concerned with concepts applicable to couples, the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

24 The second requirement is cumulative. There must be both domestic support and personal care.

25 It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:

“(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.
(b) Of or pertaining to one's person or body or figure; bodily."

26 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:

“(a) The person concerned.
(b) An employed valet or lady in waiting,
(c) a mother for her sick child, or
(d) a daughter for her elderly incapacitated mother."

27 The legislation in terms excludes the first two but would include the last two examples.

28 In the present case there is evidence that the plaintiff Shirley cared for the deceased. In her affidavit she describes his condition after his diagnosis of diabetes; he had a thyroid condition, a heart condition, poor eyesight, a kidney complaint and back pain. He also had a number of skin cancers. Apparently his medical treatment increased from 2001 onwards.

29 It is plain that the deceased's sister Shirley drove Brian to his numerous medical appointments, often and up to eight a month. She took him also to surgery on a number of occasions. During the 14 years they were there Brian suffered three hypoglycaemic fits and for this reason he was always supervised, apart from the odd hour or two.

30 According to the plaintiff after the deceased started using the dialysis machine he regularly soiled his bed, often twice a week. She tried to keep him or a good diet but the deceased was not always compliant with this.

31 This evidence is verified to some extent by independent people, including Lynette Klattig, who was a clinical nurse specialising at a Home Dialysis Unit at Liverpool. She gave evidence that the deceased commenced his dialysis in February 2002. Shirley attended most of the clinical appointments and was often assisted after the treatment. She noted she was present at his major surgery, and also gave specific instances. She visited his home and found it to be clean and tidy and the equipment was properly looked after.

32 The evidence from the plaintiff Keith is he looked after the deceased's dogs. He gave no evidence of giving personal care to the deceased. In those circumstances it seems clear that the plaintiff Shirley was in a domestic relationship with the deceased but the plaintiff Keith was not.

33 I turn to the claim to be an eligible person on the basis of being part of the household and partly dependent upon the deceased. There is no doubt they were part of the household and the question is whether they were partly dependent. In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Samuels J at page 490 said:

“His Honour concluded that "dependent" meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6 (1) the definition of "eligible person", paragraph (d) (i).
In the present case, however, only financial dependence is relied upon and I approached the matter on that basis. "Dependent", in the ordinary sense of the word, means the condition of depending on something all on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ. In Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408 that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities". While it is true and that here we are concerned with financial dependence and not an emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

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

“Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was properly financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as " reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLF 743 at 749. Whether dependency, total or partial, exists is a question of fact; Aafjes v Kearney (1976) 50 ALJR 4545; 8 ALR 455.
It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. “The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other."

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

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

37 In Petrohilos V Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court said:

“I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities all amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.

But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.

This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "dependent" in the ordinary sense of the word means the condition of depending on something or on someone for what is needed.
If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop Deceased or to "other forms of dependence and analogous to a distinct from financial dependence " as Samuels JA suggested in Ball v Newey (at 491) , then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for the well-being does not make in partly dependent upon her. In my opinion it does.

The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependants diminished in the latter years of this period."

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

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

40 The arrangement between the plaintiff and the deceased was that each of the three of them paid one third of all household costs, including rates, electricity and phone rental. The plaintiffs paid no rental for their accommodation for the 13 years they lived with the deceased. An analysis of their expenditure shows that during that time prior to the deceased's death their fortnightly expenses were $882 and they spent $480 per fortnight on their horses.

41 Although they had in one sense some surplus income which they could have used to live elsewhere, the fact of the matter is that they were, in the arrangements the three of them made, dependent on the deceased for accommodation. They are therefore both eligible persons on this ground.

42 However, it is necessary under section 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by Courts on a number of occasions. in Re Fullop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

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

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

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

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

45 The arrangements for the sharing of expenses included, on the part of the plaintiffs, the provision of both health household expenses by Shirley and household help in the garden by Keith. As time went on this service became more onerous. In my view on the traditional approach is there are factors warranting. I will also consider whether they have prospects of success.

46 In applications under the Family Provision Act the High court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that he Court must take. At page 209 it said:

“The first question is, was the provision (if any) made for the applicant ‘ inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘ adequate’ and ‘ proper’ and the inter-relationship which exists between ‘ adequate provision’ and ‘ proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc an appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which the Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

47 I turn to consider the situation in life of the plaintiffs. Shirley is 72 years of age and Keith is 84 years of age. They have been together 47 years and have adult children who are not dependent upon them. Their only assets are a 1976 minivan valued at $500, an unregistered Ford truck worth $2,000 and household items worth $2,000. The combined pension is $900 per fortnight and their expenses are now less than their estimates when they owned their three horses of $882. The horses were sold after the date of death. They have more expenses than $402 per week as they are paying the deceased's share of running the house.

48 Keith is not in good health. He had surgery for prostrate cancer, lost the sight of an eye and has had three or four suspected heart attacks. He has pains in his legs. Shirley has stomach pains and vertigo and felt exhausted caring for the deceased.

49 Is necessary to consider the contributions that have been made to the estate of the deceased's. Both of the plaintiffs contributed to the improvement and maintenance of the deceased’s property. In 1985 they painted the house at Earlwood inside and out with paint supplied by the deceased. They purchased most of the furniture and major appliances. Keith planted gardens and landscaped the property at Oakdale, although the deceased did not regard that as necessary. They painted the exterior of the property at Oakdale. They paid for all of the food and groceries for the two years whilst they lived with the deceased at Earlwood. Thereafter they paid two thirds of the groceries. The first plaintiff Keith at a large shed at the Oakdale property and paid for the materials.

50 There is no evidence, as is often the case in these matters, of what increase in value that has given to the property.

51 I earlier referred to the help that Shirley provided to the deceased. It is plain there was a lot to do for the deceased once he commenced peritoneal dialysis in February of 2002. This escalated as his condition worsened and necessitated the second plaintiff dealing with his soiled bed linen and clothes on a frequent basis

52 Precisely when this happened is not made clear in the evidence and even the defendants agree that this occurred over the last few years.

The situation in life of Warren John Fordham

53 Warren is 45 years of age, married and has three dependent children aged between 10 and 13 years. He and his wife own their home at St Marys which they estimated to be valued at $340,000 with a mortgage of $280,000. They own an investment unit somewhere in Queensland which is negatively geared and there is no evidence of its value or the amount of its mortgage.

54 Warren and his wife run a business of Tipper Truck Hire. They have two trucks, one owned and one leased. Between them last year they drew wages of $78,000 from their company.

55 They both had a good relationship with the deceased but did not call on the deceased much in more recent years. This is probably due to the animosity which ultimately built up between the plaintiffs and themselves. When they first married they lived with the deceased for about three years. They did not contribute to the estate of the deceased in a financial sense.

The situation in life of Tracey Lea Downey

56 Tracey is 45 years of age, married with three children aged between 12 and 17 and they are all dependent upon their parents. They own their own home at Capertee worth $255,000 with a mortgage of $136,000. They have two vehicles, one of which is financed, and some furniture. Their current credit card debts amount to a sum of $17,000.

57 She works at Coles at Lithgow and averages $545 a week income. Her husband has an income of approximately $800 per week.

58 Tracey had a good relationship with her father or her life. From time to time the deceased would visit and stay with Tracey and her family. Tracey did not contribute to the estate of the deceased in a financial sense.

The relationship between the plaintiff and the deceased

59 It was the deceased who offered the accommodation to the plaintiffs because of their straitened circumstances. The deceased was forced to sell the Earlwood property because he had gone guarantor for one of his sisters, Edna, and because he had to pay her debts he had to plainly downsize his home, which he did.

60 It was no doubt still convenient for the deceased to have the plaintiff living with him, providing housekeeping and paying one third of the bills. Probably the whole arrangement was beneficial to all of them, which is probably why it lasted so long.

61 The argument six months before the death of the deceased ultimately did not lead to the breakdown of the relationship, although I infer there was a substantial cooling in the arrangements between Keith and the deceased.

62 There is evidence of statements made by the deceased to his family which showed his frustration with the plaintiff from time to time. Equally, there were conversations, which I also accept, where the deceased acknowledged the plaintiff would need to live there after his death and his children could have the home after the plaintiffs had died. It is natural enough for frustrations to arise but a consideration of the evidence overall does not lead me to consider there is anything in the plaintiff's conduct to the deceased that detracts from their claim.

63 It is necessary to see how the plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life. The plaintiffs are concerned about their future accommodation and want to move to Mackay in Queensland and either live with or nearby where their daughter lives. Rent would cost $300 a week.

64 The plaintiff's daughter is willing to assist with accommodation by allowing a modification of her and her husband's garage to living quarters and erect another shed to accommodate all their cars. The plaintiffs put forward the following items:

(a) Construction of a shed (including council approvals, engineering fees, insurance etc) $80,000


(b) Removalists expenses $6,600

(c) Motor vehicle $15,000

(d) Replacement appliances $2,000

(e) Holiday $2,000

(f) Contingency fund $20,000

Total $125,600

65 The extent to which they need those removal expenses I think is somewhat doubtful. It is unlikely that some things would survive the trip. They do need a car and obviously a holiday would be nice but it is probably not necessary. The other matters depend on the extent of the other claims.

66 For their part the defendants suggest there be a modest legacy of $40,000, which would include a rent subsidy of five years to make up for the shortfall between their lack of income and their expected rent of $300 a week as renting a home nearby in which the plaintiffs say they could thus afford would be their preferred course.

Consideration of the claim

67 True it is that the plaintiffs have had rent-free accommodation 14 years but it should not be forgotten that the arrangement suited the deceased. He was provided for by Shirley and he was able to share the outgoings of the property. Without that contribution he may not have been able to keep the home and his independent lifestyle, which he plainly valued. In this sense it was a mutually beneficial arrangement which suited both parties. Things changed in the last four to five years with the deceased needing both personal care and further domestic help.

68 It is not possible to separate this area for consideration of an appropriate amount because we also have the other contributions by both plaintiffs in the earlier years at Earlwood and of work done at Oakdale.

69 The Court has to take account of the defendant's position in life. Each of them is in the throes of bringing up a family and paying off a mortgage. It is a difficult time in life for such couples and plainly any reduction in their mortgage would ease the strain and be beneficial to each family.

70 The provision of permanent accommodation at the plaintiffs daughters home would probably provide long term benefits to the plaintiffs as they get older. Given their age and their present medical condition they may not be able to live separately for very long. They could probably expect to move in with their daughter and at this stage it would be beneficial to them and obviously suits the daughter and her husband.

71 It seems to me that some provision ought to be made for the plaintiffs to allow them to settle with their daughter. However, costs will have a large impact on this estate. For an estate of $446,042, costs of $119,674 have been incurred. More than a quarter of the state has been consumed in costs. This is extraordinary in an estate of this amount but no application has been made to cap the costs. Because of this impact of costs the estate cannot fully support all the claims that have been made upon it.

72 In the circumstances I think it appropriate that the plaintiffs have a legacy of $90,000.

73 There was an application to disallow the costs of the defendants’ principal affidavits. There was a quantity of irrelevant material but there was also a lot of relevant material to which no objection was taken. In some instances paragraphs had been drafted without any regard to the laws of evidence both as to form and as to relevance. However, having regard to the quantity of available admissible material I will not make a special order. The plaintiffs will be protected by the costs orders that I make as, effectively, the burden of the unnecessary costs will fall on the defendants.

74 The orders I make are as follows:

1. I order that the plaintiffs received a joint legacy of $90,000.
2. I order that interest be paid on the legacy if not paid within three months from today's date on and from that date at the rate provided for under the Wills Probate Administration Act 1898.
3. The costs of the plaintiffs on an ordinary basis and the costs of the defendants on an indemnity basis to be paid or retained out of the estate of the deceased.
4. The exhibits can be returned

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